Online Safety Bill

Lord Parkinson of Whitley Bay Excerpts

Committee stage
Thursday 27th April 2023 Lords Chamber

[Baroness Merron (Lab)]

My Lords, I welcome this debate, which revisits some of the areas discussed in earlier debates about the scope of the Bill, as many noble Lords said. It allows your Lordships’ House to consider what has to be the primary driver for assessment. In my view and as others said, it ought to be about risk, which has to be the absolute driver in all this. As the noble Baroness, Lady Harding, said, businesses do not remain static: they start at a certain size and then change. Of course, we hope that many of the businesses we are talking about will grow, so this is about preparation for growth and the reality of doing businesses.

As we discussed, there certainly are cases where search providers may, by their very nature, be almost immune from presenting users with content that could be considered either harmful or illegal under this legislative framework. The new clause proposed by the noble Lord, Lord Moylan—I am grateful to him for allowing us to explore these matters—and its various consequential amendments, would limit the duty to prevent access to illegal content to core category 2A search providers, rather than all search providers, as is currently the case under Clause 23(3).

The argument that I believe the noble Lord, Lord Moylan, put forward is that the illegal content duty is unduly wide, placing a disproportionate and otherwise unacceptable burden on smaller and/or supposedly safer search providers. He clearly said he was not saying that small was safe—that is now completely understood—but he also said that absolute safety is not achievable. As the noble Baroness, Lady Kidron, said, that is indeed so. If this legislation is too complex and creates the wrong provisions, we will clearly be a long way away from our ambition, which here has to be to have in place the best legislative framework, one that everyone can work with and that provides the maximum opportunity for safety and what we all seek to achieve.

Of course, the flip side of the argument about an unacceptable burden on smaller, or on supposedly safer, search providers may be that they would in fact have very little work to do to comply with the illegal content duty, at least in the short term. But the duty would act as an important safeguard, should the provider’s usual systems prove ineffective with the passage of time. Again, that point was emphasised in this and the previous debate by the noble Baroness, Lady Harding.

We look forward to the Minister’s response to find out which view he and his department subscribe to or, indeed, whether they have another view they can bring to your Lordships’ House. But, on the face of it, the current arrangements do not appear unacceptably onerous.

Amendment 157 in the name of the noble Lord, Lord Pickles, and introduced by the noble Baroness, Lady Deech, deals with search by a different approach by inserting requirements about search services’ publicly available statements into Clause 65. In the debate, the noble Baroness and the noble Lord, Lord Weir, raised very important, realistic examples of where search engines can take us, including to material that encourages racism directed at Jews and other groups and encourages hatred of various groups, including Jews. The amendment talks about issues such as the changing of algorithms or the hiding of content and the need to ensure that the terms of providers’ publicly available statements are applied as consistently.

I look forward to hearing from the Minister in response to Amendment 157 as the tech certainly moves us beyond questions of scope and towards discussion of the conduct of platforms when harm is identified.

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

My Lords, I must first apologise for my slightly dishevelled appearance as I managed to spill coffee down my shirt on my way to the Chamber. I apologise for that—as the fumes from the dried coffee suffuse the air around me. It will certainly keep me caffeinated for the day ahead.

Search services play a critical role in users’ online experience, allowing them easily to find and access a broad range of information online. Their gateway function, as we have discussed previously, means that they also play an important role in keeping users safe online because they have significant influence over the content people encounter. The Bill therefore imposes stringent requirements on search services to tackle the risks from illegal content and to protect children.

Amendments 13, 15, 66 to 69 and 73 tabled by my noble friend Lord Moylan seek to narrow the scope of the Bill so that its safety search duties apply only to the largest search services—categorised in the Bill as category 2A services—rather than to all search services. Narrowing the scope in this way would have an adverse impact on the safety of people using search services, including children. Search services, including combined services, below the category 2A threshold would no longer have a duty to minimise the risk of users encountering illegal content or children encountering harmful content in or via search results. This would increase the likelihood of users, including children, accessing illegal content and children accessing harmful content through these services.

The Bill already takes a targeted approach and the duties on search services will be proportionate to the risk of harm and the capacity of companies. This means that services which are smaller and lower-risk will have a lighter regulatory burden than those which are larger and higher-risk. All search services will be required to conduct regular illegal content risk assessments and, where relevant, children’s risk assessments, and then implement proportionate mitigations to protect users, including children. Ofcom will set out in its codes of practice specific steps search services can take to ensure compliance and must ensure that these are proportionate to the size and capacity of the service.

The noble Baroness, Lady Kidron, and my noble friend Lady Harding of Winscombe asked how search services should conduct their risk assessments. Regulated search services will have a duty to conduct regular illegal content risk assessments, and where a service is likely to be accessed by children it will have a duty to conduct regular children’s risk assessments, as I say. They will be required to assess the level and nature of the risk of individuals encountering illegal content on their service, to implement proportionate mitigations to protect people from illegal content, and to monitor them for effectiveness. Services likely to be accessed by children will also be required to assess the nature and level of risk of their service specifically for children to identify and implement proportionate mitigations to keep children safe, and to monitor them for effectiveness as well.

Companies will also need to assess how the design and operation of the service may increase or reduce the risks identified and Ofcom will have a duty to issue guidance to assist providers in carrying out their risk assessments. That will ensure that providers have, for instance, sufficient clarity about what an appropriate risk assessment looks like for their type of service.

The noble Lord, Lord Allan, and others asked about definitions and I congratulate noble Lords on avoiding the obvious

“To be, or not to be”


pun in the debate we have just had. The noble Lord, Lord Allan, is right in the definition he set out. On the rationale for it, it is simply that we have designated as category 1 the largest and riskiest services and as category 2 the smaller and less risky ones, splitting them between 2A, search services, and 2B, user-to-user services. We think that is a clear framework. The definitions are set out a bit more in the Explanatory Notes but that is the rationale.

[Lord Allan of Hallam (LD)]

I am grateful to the Minister for that clarification. I take it then that the Government’s working assumption is that all search services, including the biggest ones, are by definition less risky than the larger user-to-user services. It is just a clarification that that is their thinking that has informed this.

[Lord Parkinson of Whitley Bay (Con)]

As I said, the largest and riskiest sites may involve some which have search functions, so the test of large and most risky applies. Smaller and less risky search services are captured in category 2A.

Amendment 157 in the name of my noble friend Lord Pickles, and spoken to by the noble Baroness, Lady Deech, seeks to apply new duties on the largest search services. I agree with the objectives in my noble friend’s amendment of increasing transparency about the search services’ operations and enabling users to hold them to account. It is not, however, an amendment I can accept because it would duplicate existing duties while imposing new duties which we do not think are appropriate for search services.

As I say, the Bill will already require search services to set out how they are fulfilling their illegal content and child safety duties in publicly available statements. The largest search services—category 2A—will also be obliged to publish a summary of their risk assessments and to share this with Ofcom. That will ensure that users know what to expect on those search services. In addition, they will be subject to the Bill’s requirements relating to user reporting and redress. These will ensure that search services put in place effective and accessible mechanisms for users to report illegal content and content which is harmful to children.

My noble friend’s amendment would ensure that the requirements to comply with its publicly available statements applied to all actions taken by a search service to prevent harm, not just those relating to illegal content and child safety. This would be a significant expansion of the duties, resulting in Ofcom overseeing how search services treat legal content which is accessed by adults. That runs counter to the Government’s stated desire to avoid labelling legal content which is accessed by adults as harmful. It is for adult users themselves to determine what legal content they consider harmful. It is not for us to put in place measures which could limit their access to legal content, however distasteful. That is not to say, of course, that where material becomes illegal in its nature that we do not share the determination of the noble Baroness, my noble friend and others to make sure that it is properly tackled. The Secretary of State and Ministers have had extensive meetings with groups making representations on this point and I am very happy to continue speaking to my noble friend, the noble Baroness and others if they would welcome it.

I hope that that provides enough reassurance for the amendment to be withdrawn at this stage.

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Moved by

[Lord Parkinson of Whitley Bay]

13A: Clause 6, page 5, line 35, after “service” insert “is not a Category 2A service and”
Member’s explanatory statement
This technical amendment ensures that the duties imposed on providers of combined services in relation to the search engine are correct following the changes to clause 20 arising from the new duties in clauses 23, 25 and 29 which are imposed on providers of Category 2A services only.

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Finally, I know this is unpopular as far as the Government are concerned, but is there not a concern that we are running a coach and horses through some of our well thought-through and important issues relating to human rights? The EHRC’s paper says that the provisions in Clause 110 may be disproportionate and an infringement of millions of individuals’ rights to privacy where those individuals are not suspected of any wrongdoing. This is not a right or wrong issue; it is a proportion issue. We need to balance that. I do not know if have heard the Minister set out exactly why the measures in the Bill meet that set of conditions, so I would be grateful if he could talk about that or, if not, write to us. If we are in danger of heading into issues which are raised by Article 8 of the ECHR—I know the noble Lord opposite may not be a huge supporter of it, but it is an important part of our current law, and senior Ministers have said how important it will be in the future—surely we must have safeguards which will protect it.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has indeed been a very good debate on a large group of amendments. We have benefited from two former Ministers, the noble Lord, Lord McNally, and my noble friend Lord Kamall. I hope it is some solace to my noble friend that, such a hard act is he to follow, his role has been taken on by two of us on the Front Bench—myself at DCMS and my noble friend Lord Camrose at the new Department for Science, Innovation and Technology.

The amendments in this group are concerned with the protection of user privacy under the Bill and the maintenance of end-to-end encryption. As noble Lords have noted, there has been some recent coverage of this policy in the media. That reporting has not always been accurate, and I take this opportunity to set the record straight in a number of areas and seek to provide the clarity which the noble Lord, Lord Stevenson of Balmacara, asked for just now.

Encryption plays a crucial role in the digital realm, and the UK supports its responsible use. The Bill does not ban any service design, nor will it require services materially to weaken any design. The Bill contains strong safeguards for privacy. Broadly, its safety duties require platforms to use proportionate systems and processes to mitigate the risks to users resulting from illegal content and content that is harmful to children. In doing so, platforms must consider and implement safeguards for privacy, including ensuring that they are complying with their legal responsibilities under data protection law.

With regard to private messaging, Ofcom will set out how companies can comply with their duties in a way that recognises the importance of protecting users’ privacy. Importantly, the Bill is clear that Ofcom cannot require companies to use proactive technology, such as automated scanning, on private communications in order to comply with their safety duties.

In addition to these cross-cutting protections, there are further safeguards concerning Ofcom’s ability to require the use of proactive technology, such as content identification technology on public channels. That is in Clause 124(6) of the Bill. Ofcom must consider a number of matters, including the impact on privacy and whether less intrusive measures would have the equivalent effect, before it can require a proactive technology.

The implementation of end-to-end encryption in a way that intentionally blinds companies to criminal activity on their services, however, has a disastrous effect on child safety. The National Center for Missing & Exploited Children in the United States of America estimates that more than half its reports could be lost if end-to-end encryption were implemented without preserving the ability to tackle child sexual abuse—a conundrum with which noble Lords grappled today. That is why our new regulatory framework must encourage technology companies to ensure that their safety measures keep pace with this evolving and pernicious threat, including minimising the risk that criminals are able to use end-to-end encrypted services to facilitate child sexual abuse and exploitation.

Given the serious risk of harm to children, the regulator must have appropriate powers to compel companies to take the most effective action to tackle such illegal and reprehensible content and activity on their services, including in private communications, subject to stringent legal safeguards. Under Clause 110, Ofcom will have a stand-alone power to require a provider to use, or make best endeavours to develop, accredited technology to tackle child sexual exploitation and abuse, whether communicated publicly or privately, by issuing a notice. Ofcom will use this power as a last resort only when all other measures have proven insufficient adequately to address the risk. The only other type of harm for which Ofcom can use this power is terrorist content, and only on public communications.

The use of the power in Clause 110 is subject to additional robust safeguards to ensure appropriate protection of users’ rights online. Ofcom will be able to require the use of technology accredited as being highly accurate only in specifically detecting illegal child sexual exploitation and abuse content, ensuring a minimal risk that legal content is wrongly identified. In addition, under Clause 112, Ofcom must consider a number of matters, including privacy and whether less intrusive means would have the same effect, before deciding whether it is necessary and proportionate to issue a notice.

The Bill also includes vital procedural safeguards in relation to Ofcom’s use of the power. If Ofcom concludes that issuing a notice is necessary and proportionate, it will need to publish a warning notice to provide the company an opportunity to make representations as to why the notice should not be issued or why the detail contained in it should be amended. In addition, the final notice must set out details of the rights of appeal under Clause 149. Users will also be able to complain to and seek action from a provider if the use of a specific technology results in their content incorrectly being removed and if they consider that technology is being used in a way that is not envisaged in the terms of service. Some of the examples given by the noble Baroness, Lady Fox of Buckley, pertain in this instance.

The Bill also recognises that in some cases there will be no available technology compatible with the particular service design. As I set out, this power cannot be used by Ofcom to require a company to take any action that is not proportionate, including removing or materially weakening encryption. That is why the Bill now includes an additional provision for this scenario, to allow Ofcom to require technology companies to use their best endeavours to develop or find new solutions that work on their services while meeting the same high standards of accuracy and privacy protection. Given the ingenuity and resourcefulness of the sector, it is reasonable to ask it to do everything possible to protect children from abuse and exploitation. I echo the comments made by the noble Lord, Lord Allan, about the work being done across the sector to do that.

More broadly, the regulator must uphold the right to privacy under its Human Rights Act obligations when implementing the new regime. It must ensure that its actions interfere with privacy only where it is lawful, necessary and proportionate to do so. I hope that addresses the question posed by the noble Lord, Lord Stevenson. In addition, Ofcom will be required to consult the Information Commissioner’s Office when developing codes of practice and relevant pieces of guidance.

I turn now to Amendments 14—

[Lord Knight of Weymouth (Lab)]

Before the Minister does so, can he give a sense of what he means by “best endeavours” for those technology companies? If it is not going to be general monitoring of what is happening as the message moves from point to point—we have had some discussions about the impracticality and issues attached to monitoring at one end or the other—what, theoretically, could “best endeavours” possibly look like?

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[Lord Parkinson of Whitley Bay (Con)]

I am hesitant to give too tight a definition, because we want to remain technology neutral and make sure that we are keeping an open mind to developing changes. I will think about that and write to the noble Lord. The best endeavours will inevitably change over time as new technological solutions present themselves. I point to the resourcefulness of the sector in identifying those, but I will see whether there is anything more I can add.

[Baroness Kidron (CB)]

While the Minister is reflecting, I note that the words “best endeavours” are always a bit of a worry. The noble Lord, Lord Allan, made the good point that once it is on your phone, you are in trouble and you must report it, but the frustration of many people outside this Chamber, if it has been on a phone and you cannot deal with it, is what comes next to find the journey of that piece of material without breaking encryption. I speak to the tech companies very often—indeed, I used to speak to the noble Lord, Lord Allan, when he was in position at then Facebook—but that is the question that we would like answered in this Committee, because the frustration that “It is nothing to do with us” is where we stop with our sympathy.

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness’s intervention has given me an opportunity to note that I am about to say a little more on best endeavours, which will not fully answer the question from the noble Lord, Lord Knight, but I hope fleshes it out a little more.

I do that in turning to Amendments 14, 108 and 205, which seek to clarify that companies will not be required to undertake fundamental changes to the nature of their service, such as the removal or weakening of end-to-end encryption. As I previously set out, the Bill does not require companies to weaken or remove any design and there is no requirement for them to do so as part of their risk assessments or in response to a notice. Instead, companies will need to undertake risk assessments, including consideration of risks arising from the design of their services, before taking proportionate steps to mitigate and manage these risks. Where relevant, assessing the risks arising from end-to-end encryption will be an integral part of this process.

This risk management approach is well established in almost every other industry and it is right that we expect technology companies to take user safety into account when designing their products and services. We understand that technologies used to identify child sexual abuse and exploitation content, including on private communications, are in some cases nascent and complex. They continue to evolve, as I have said. That is why Ofcom has the power through the Bill to issue a notice requiring a company to make best endeavours to develop or source technology.

This notice will include clear, proportionate and enforceable steps that the company must take, based on the relevant information of the specific case. Before issuing a warning notice, Ofcom is expected to enter into informal consultation with the company and/or to exercise information-gathering powers to determine whether a notice is necessary and proportionate. This consultation period will assist in establishing what a notice to develop a technology may require and appropriate steps for the company to take to achieve best endeavours. That dialogue with Ofcom is part of the process.

[Lord Kamall (Con)]

There are a lot of phrases here—best endeavour, proportionate, appropriate steps—that are rather subjective. The concern of a number of noble Lords is that we want to address this issue but it is a matter of how it is applied. That is one of the reasons why noble Lords were asking for some input from the legal profession, a judge or otherwise, to make those judgments.

[Lord Parkinson of Whitley Bay (Con)]

All the phrases used in the Bill are subject to the usual scrutiny through the judicial process—that is why we debate them now and think about their implications—but of course they can, and I am sure will, be tested in the usual legal ways. Once a company has developed a new technology that meets minimum standards of accuracy, Ofcom may require its use but not before considering matters including the impact on user privacy, as I have set out. The Bill does not specify which tools are likely to be required, as we cannot pre-empt Ofcom’s evidence-based and case-by-case assessment.

Amendment 285 intends to clarify that social media platforms will not be required to undertake general monitoring of the activity of their users. I agree that the protection of privacy is of utmost importance. I want to reassure noble Lords, in particular my noble friend Lady Stowell of Beeston, who asked about it, that the Bill does not require general monitoring of all content. The clear and strong safeguards for privacy will ensure that users’ rights are protected.

Setting out clear and specific safeguards will be more effective in protecting users’ privacy than adopting the approach set out in Amendment 285. Ofcom must consider a number of matters, including privacy, before it can require the use of proactive technology. The government amendments in this group, Amendments 290A to 290G, further clarify that technology which identifies words, phrases or images that indicate harm is subject to all of these restrictions. General monitoring is not a clearly defined concept—a point made just now by my noble friend Lord Kamall. It is used in EU law but is not defined clearly in that, and it is not a concept in UK law. This lack of clarity could create uncertainty that some technology companies might attempt to exploit in order to avoid taking necessary and proportionate steps to protect their users. That is why we resist Amendment 285.

[Lord Stevenson of Balmacara (Lab)]

I understand the point the Minister is making, but it is absolutely crystal clear that, whatever phrase is used, the sensibility is quite clear that the Government are saying on record, at the Dispatch Box, that the Bill can in no way be read as requiring anybody to provide a view into private messaging or encrypted messaging unless there is good legal cause to suspect criminality. That is a point that the noble Baroness, Lady Stowell, made very clearly. One may not like the phrasing used in other legislatures, but could we find a form of words that will make it clear that those who are operating in this legal territory are absolutely certain about where they stand on that?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I want to give clear reassurance that the Bill does not require general monitoring of all content. We have clear and strong safeguards for privacy in the Bill to ensure that users’ rights are protected. I set out the concerns about use of the phrase “general monitoring”. I hope that provides clarity, but I may have missed the noble Lord’s point. The brief answer to the question I think he was asking is yes.

[Lord Stevenson of Balmacara (Lab)]

Let the record stand clear: yes. It was the slight equivocation around how the Minister approached and left that point that I was worried about, and that people might seek to use that later. Words from the Dispatch Box are never absolute and they are never meant to be, but the fact that they have been said is important. I am sure that everybody understands that point, and the Minister did say “yes” to my question.

[Lord Parkinson of Whitley Bay (Con)]

I did, and I am happy to say it again: yes.

[Baroness Fox of Buckley (Non-Afl)]

Perhaps I might go back to an earlier point. When the Minister said the Government want to make sure, I think he was implying that certain companies would try to avoid obligations to keep their users safe by threatening to leave or whatever. I want it to be clear that the obligations to the users of the service are, in the instance of encrypted services, to protect their privacy, and they see that as keeping them safe. It would be wrong to make that a polar opposite. I think that companies that run unencrypted services believe that to be what their duties are—so that in a way is a clash.

Secondly, I am delighted by the clarity in the Minister’s “yes” answer, but I think that maybe there needs to be clearer communication with people outside this Chamber. People are worried about whether duties placed on Ofcom to enact certain things would lead to some breach of encryption. No one thinks that the Government intend to do this or want to spy on anyone, but that the unintended consequences of the duty on Ofcom might have that effect. If that is not going to be the case, and that can be guaranteed by the Government, and they made that clear, it would reassure not just the companies but the users of messaging services, which would be helpful.

[Lord Parkinson of Whitley Bay (Con)]

The points the noble Baroness has just made bring me neatly to what I was about to say in relation to the question raised earlier by the noble Lord, Lord Knight of Weymouth. But first, I would say that Ofcom as a public body is subject to public law principles already, so those apply in this case.

The noble Lord, Lord Knight, asked about virtual private networks and the risk of displacing people on to VPNs or other similar alternatives. That is a point worth noting, not just in this group but as we consider all these amendments, particularly when we talk later on about age verification, pornography and so on. Services will need to think about how safety measures could be circumvented and take steps to prevent that, because they need to mitigate risk effectively. There may also be a role in enforcement action, too; Ofcom will be able to apply to the courts to require these services where appropriate to apply business disruption measures. We should certainly be mindful of the incentives for people to do that, and the example the noble Lord, Lord Knight, gave earlier is a useful lesson in the old adage “Caveat emptor” when looking at some of these providers.

I want to say a little bit about Amendments 205A and 290H in my name. Given the scale of child sexual abuse and exploitation that takes place online, and the reprehensible nature of these crimes, it is important that Ofcom has effective powers to require companies to tackle it. This brings me to these government amendments, which make small changes to the powers in Clause 110 to ensure that they are effective. I will focus particularly, in the first instance, on Amendment 290H, which ensures that Ofcom considers whether a service has features that allow content to be shared widely via another service when deciding whether content has been communicated publicly or privately, including for the purposes of issuing a notice. This addresses an issue highlighted by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, and Professor Stuart Macdonald in a recent paper. The separate, technical amendment, Amendment 205A, clarifies that Clause 110(7) refers only to a notice on a user-to-user service.

Amendment 190 in the name of the noble Lord, Lord Clement-Jones, seeks to introduce a new privacy duty on Ofcom when considering whether to use any of its powers. The extensive privacy safeguards that I have already set out, along with Ofcom’s human rights obligations, would make this amendment unnecessary. Ofcom must also explicitly consult persons whom it considers to have expertise in the enforcement of the criminal law and the protection of national security, which is relevant to online safety matters in the course of preparing its draft codes. This may include the integrity and security of internet services where relevant.

Amendments 202 and 206, in the name of the noble Lord, Lord Stevenson of Balmacara, and Amendments 207, 208, 244, 246, 247, 248, 249 and 250 in the name of the noble Lord, Lord Clement-Jones, all seek to deliver privacy safeguards to notices issued under Clause 110 through additional review and appeals processes. There are already strong safeguards concerning this power. As part of the warning notice process, companies will be able to make representations to Ofcom which it is bound to consider before issuing a notice. Ofcom must also review any notice before the end of the period for which it has effect.

Amendment 202 proposes mirroring the safeguards of the investigatory powers Act when issuing notices to encrypted messaging services under this power. First, this would be inappropriate, because the powers in the investigatory powers Act serve different purposes from those in this Bill. The different legal safeguards in the investigatory powers Act reflect the potential intrusion by the state into an individual’s private communications; that is not the case with this Bill, which does not grant investigatory powers to state bodies, such as the ability to intercept private communications. Secondly, making a reference to encryption would be—

[Lord Stevenson of Balmacara (Lab)]

Is that right? I do not need a yes or no answer. It was rhetorical; I am just trying to frame the right question. The Minister is making a very strong point about the difference between RIPA requirements and those that might be brought in under this Bill. But it does not really get to the bottom of the questions we were asking. In this situation, whatever the exact analogy between the two systems is, it is clear that Ofcom is marking its own homework—which is fair enough, as there are representations, but it is not getting external advice or seeking judicial approval.

The Minister’s point was that that was okay because it was private companies involved. But we are saying here that these would be criminal offences taking place and therefore there is bound to be interest from the police and other agencies, including anti-terrorism agencies. It is clearly similar to the RIPA arrangements, so he could he just revisit that?

[Lord Parkinson of Whitley Bay (Con)]

Yes, I think it is right. The investigatory powers Act is a tool for law enforcement and intelligence agencies, whereas the Bill is designed to regulate technology companies—an important high-level distinction. As such, the Bill does not grant investigatory powers to state bodies. It does not allow the Government or the regulator to access private messages. Instead, it requires companies to implement proportionate systems and processes to tackle illegal content on their platforms. I will come on to say a little about legal redress and the role of the courts in looking at Ofcom’s decisions so, if I may, I will respond to that in a moment.

[Lord Allan of Hallam (LD)]

The investigatory powers Act includes a different form of technical notice, which is to put in place surveillance equipment. The noble Lord, Lord Stevenson, has a good point: we need to ensure that we do not have two regimes, both requiring companies to put in place technical equipment but with quite different standards applying.

[Lord Parkinson of Whitley Bay (Con)]

I will certainly take that point away and I understand, of course, that different Acts require different duties of the same platforms. I will take that away and discuss it with colleagues in other departments who lead on investigatory powers.

[Baroness Stowell of Beeston (Con)]

Before my noble friend moves on, when he is reviewing that back in the office, could he also satisfy himself that the concerns coming from the journalism and news organisations in the context of RIPA are also understood and have been addressed? That is another angle which, from what my noble friend has said so far, I am not sure has really been acknowledged. That is not a criticism but it is worth him satisfying himself on it.

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[Lord Parkinson of Whitley Bay (Con)]

I am about to talk about the safeguards for journalists in the context of the Bill and the questions posed by the noble Baroness, Lady Bennett. However, I take my noble friend’s point about the implications of other Acts that are already on the statute book in that context as well.

Just to finish the train of thought of what I was saying on Amendment 202, making a reference to encryption, as it suggests, would be out of step with the wider approach of the Bill, which is to remain technology-neutral.

I come to the safeguards for journalistic protections, as touched on by the noble Baroness, Lady Bennett. The Government are fully committed to protecting the integrity of journalistic sources, and there is no intention or expectation that the tools required to be used under this power would result in a compromising of those sources. Any tools required on private communications must be accredited by Ofcom as highly accurate only in detecting child sexual abuse and exploitation content. These minimum standards of accuracy will be approved and published by the Secretary of State, following advice from Ofcom. We therefore expect it to be very unlikely that journalistic content will be falsely detected by the tools being required.

Under Clause 59, companies are obliged to report child sexual abuse material which is detected on their service to the National Crime Agency; this echoes a point made by the noble Lord, Lord Allan, in an earlier contribution. That would include child sexual abuse and exploitation material identified through tools required by a notice and, even in this event, the appropriate protections in relation to journalistic sources would be applied by the National Crime Agency if it were necessary to identify individuals involved in sharing illegal material.

[Lord Allan of Hallam (LD)]

I want to flag that in the context of terrorist content, this is quite high risk for journalists. It is quite common for them, for example, to be circulating a horrific ISIS video not because they support ISIS but because it is part of a news article they are putting together. We should flag that terrorist content in particular is commonly distributed by journalists and it could be picked up by any system that is not sufficiently sophisticated.

[Lord Parkinson of Whitley Bay (Con)]

I see that my noble friend Lord Murray of Blidworth has joined the Front Bench in anticipation of the lunch-break business for the Home Office. That gives me the opportunity to say that I will discuss some of these points with him, my noble friend Lord Sharpe of Epsom and others at the Home Office.

Amendment 246 aims to ensure that there is no requirement for a provider to comply with a notice until the High Court has determined the appeal. The Government have ensured that, in addition to judicial review through the High Court, there is an accessible and relatively affordable alternative means of appealing Ofcom’s decisions via the Upper Tribunal. We cannot accept amendments such as this, which could unacceptably delay Ofcom’s ability to issue a notice, because that would leave children vulnerable.

To ensure that Ofcom’s use of its powers under Clause 110, and the technology that underpins it, are transparent, Ofcom will produce an annual report about the exercise of its functions using these powers. This must be submitted to the Secretary of State and laid before Parliament. The report must also provide the details of technology that has been assessed as meeting minimum standards of accuracy, and Ofcom may also consider other factors, including the impact of technologies on privacy. That will be separate to Ofcom’s annual report to allow for full scrutiny of this power.

The legislation also places a statutory requirement on Ofcom to publish guidance before its functions with regard to Clause 110 come into force. This will be after Royal Assent, given that the legislation is subject to change until that point. Before producing the guidance, Ofcom must consult the Information Commissioner. As I said, there are already strong safeguards regarding Ofcom’s use of these powers, so we think that this additional oversight is unnecessary.

Amendments 203 and 204, tabled by the noble Lord, Lord Clement-Jones, seek to probe the privacy implications of Ofcom’s powers to require technology under Clause 110. I reiterate that the Bill will not ban or weaken any design, including end-to-end encryption. But, given the scale of child sexual abuse and exploitation taking place on private communications, it is important that Ofcom has effective powers to require companies to tackle this abhorrent activity. Data from the Office for National Statistics show that in nearly three-quarters of cases where children are contacted online by someone they do not know, this takes place by private message. This highlights the scale of the threat and the importance of technology providers taking steps to safeguard children in private spaces online.

As already set out, there are already strong safeguards regarding the use of this power, and these will prevent Ofcom from requiring the use of any technology that would undermine a platform’s security and put users’ privacy at risk. These safeguards will also ensure that platforms will not be required to conduct mass scanning of private communications by default.

Until the regime comes into force, it is of course not possible to say with certainty which tools would be accredited. However, some illustrative examples of the kinds of current tools we might expect to be used—providing that they are highly accurate and compatible with a service’s design—are machine learning or artificial intelligence, which assess content to determine whether it is illegal, and hashing technology, which works by assigning a unique number to an image that has been identified as illegal.

Given the particularly abhorrent nature of the crimes we are discussing, it is important that services giving rise to a risk of child sexual abuse and exploitation in the UK are covered, wherever they are based. The Bill, including Ofcom’s ability to issue notices in relation to this or to terrorism, will therefore have extraterritorial effect. The Bill will apply to any relevant service that is linked to the UK. A service is linked to the UK if it has a significant number of UK users, if UK users form a target market or if the service is capable of being used in the UK and there is a material risk of significant harm to individuals in the UK arising from the service. I hope that that reassures the noble Lord, on behalf of his noble friend, about why that amendment is not needed.

Amendments 209 to 214 seek to place additional requirements on Ofcom to consider the effect on user privacy when using its powers under Clause 110. I agree that tackling online harm needs to take place while protecting privacy and security online, which is why Ofcom already has to consider user privacy before issuing notices under Section 110, among the other stringent safeguards I have set out. Amendment 202A would impose a duty on Ofcom to issue a notice under Clause 110, where it is satisfied that it is necessary and proportionate to do so—this will have involved ensuring that the safeguards have been met.

Ofcom will have access to a wide range of information and must have the discretion to decide the most appropriate course of action in any particular scenario, including where this action lies outside the powers and procedures conferred by Clause 110; for instance, an initial period of voluntary engagement. This is an in extremis power. It is essential that we balance users’ rights with the need to enable a strong response, so Ofcom must be able to assess whether any alternative, less intrusive measures would effectively reduce the level of child sexual exploitation and abuse or terrorist content occurring on a service before issuing a notice.

I hope that that provides reassurance to noble Lords on the amendments in this group, and I invite the noble Lord to withdraw Amendment 14.

[Lord Allan of Hallam (LD)]

My Lords, this has been a very useful debate and serves as a good appetite builder for lunch, which I understand we will be able to take shortly.

I am grateful to the Minister for his response and to all noble Lords who have taken part in the debate. As always, the noble Baroness, Lady Kidron, gave us a balanced view of digital rights—the right to privacy and to security—and the fact that we should be trying to advance these two things simultaneously. She was right again to remind us that this is a real problem and there is a lot we can do. I know she has worked on this through things such as metadata—understanding who is communicating with whom—which might strike that nice balance where we are not infringing on people’s privacy too grossly but are still able to identify those who wish harm on our society and in particular on our children.

The noble Baroness, Lady Bennett, was right to pick up this tension between everything, everywhere, all at once and targeted surveillance. Again, that is really interesting to tease out. I am personally quite comfortable with quite intrusive targeted surveillance. I do not know whether noble Lords have been reading the Pegasus spyware stories: I am not comfortable with some Governments placing such spyware on the phones of human rights defenders but I would be much more relaxed about the British authorities placing something similar on the phones of people who are going to plant bombs in Manchester. We need to be really honest about where we are drawing our red lines if we want to go in the direction of targeted surveillance.

The noble Lord, Lord Moylan, was right again to remind us about the importance of private conversations. I cited the example of police officers whose conversations have been exposed. Although it is hard, we should remember that if ordinary citizens want to exchange horrible racist jokes with each other and so on in private groups that is not a matter for the state, but it is when it is somebody in a position of public authority; we have a right to intervene there. Again, we have to remember that as long as it is not illegal people can say horrible things in private, and we should not encourage any situation where we suggest that the state would interfere unless there are legitimate grounds—for example, it is a police officer or somebody is doing something that crosses the line of legality.

The noble Baroness, Lady Fox, reminded us that it is either encrypted or it is not. That is really helpful, as things cannot be half encrypted. If a service provider makes a commitment it is critical that it is truthful. That is what our privacy law tells us. If I say, “This service is encrypted between you and the person you send the message to”, and I know that there is somebody in between who could access it, I am lying. I cannot say it is a private service unless it is truly private. We have to bear that in mind. Historically, people might have been more comfortable with fudging it, but not in 2023, when have this raft of privacy legislation.

The noble Baroness is also right to remind us that privacy can be safety. There is almost nothing more devastating than the leaking of intimate images. When services such as iCloud move to encrypted storage that dramatically reduces the risk that somebody will get access to your intimate images if you store them there, which you are legally entitled to do. Privacy can be a critical part of an individual maintaining their own security and we should not lose that.

The noble Baroness, Lady Stowell, was right again to talk about general monitoring. I am pleased that she found the WhatsApp briefing useful. I was unable to attend but I know from previous contact that there are people doing good work and it is sad that that often does not come out. We end up with this very polarised debate, which my noble friend Lord McNally was right to remind us is unhelpful. The people south of the river are often working very closely in the public interest with people in tech companies. Public rhetoric tends to focus on why more is not being done; there are very few thanks for what is being done. I would like to see the debate move a little more in that direction.

The noble Lord, Lord Knight, opened up a whole new world of pain with VPNs, which I am sure we will come back to. I say simply that if we get the regulatory frameworks right, most people in Britain will continue to use mainstream services as long as they are allowed to be offered. If those services are regulated by the European Union under its Digital Services Act and pertain to the UK and the US in a similar way, they will in effect have global standards, so it will not matter where you VPN from. The scenario the noble Lord painted, which I worry about, is where those mainstream services are not available and we drive people into small, new services that are not regulated by anyone. We would then end up inadvertently driving people back to the wild west that we complain about, when most of them would prefer to use mainstream services that are properly regulated by Ofcom, the European Commission and the US authorities.

Online Safety Bill

Lord Parkinson of Whitley Bay Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

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

My Lords, first, I will address Amendments 12BA, 183A and 183B, tabled by the noble Baroness, Lady Ritchie of Downpatrick, who I was grateful to discuss them with earlier today, and the noble Lord, Lord Morrow, whose noble friend, the noble Lord, Lord Browne of Belmont, I am grateful to for speaking to them on his behalf.

These amendments seek to apply the duties in Part 5 of the Bill, which are focused on published pornographic content and user-generated pornography. Amendments 183A and 183B are focused particularly on making sure that children are protected from user-to-user pornography in the same way as from published pornography, including through the use of age verification. I reassure the noble Baroness and the noble Lord that the Government share their concerns; there is clear evidence about the impact of pornography on young people and the need to protect children from it.

This is where I come to the questions posed earlier by the noble Lord, Lord McCrea of Magherafelt and Cookstown. The research we commissioned from the British Board of Film Classification assessed the functionality of and traffic to the UK’s top 200 most visited pornographic websites. The findings indicated that 128 of the top 200 most visited pornographic websites—that is just under two-thirds, or 64%—would have been captured by the proposed scope of the Bill at the time of the Government’s initial response to the online harms White Paper, and that represents 85% of the traffic to those 200 websites.

Since then, the Bill’s scope has been broadened to include search services and pornography publishers, meaning that children will be protected from pornography wherever it appears online. The Government expect companies to use age-verification technologies to prevent children accessing services which pose the highest risk to children, such as online pornography. Age-assurance technologies and other measures will be used to provide children with an age-appropriate experience on their service.

As noble Lords know, the Bill does not mandate that companies use specific approaches or technologies when keeping children safe online as it is important that the Bill is future-proofed: what is effective today might not be so effective in the future. Moreover, age verification may not always be the most appropriate or effective approach for user-to-user companies to comply with their duties under the Bill. For instance, if a user-to-user service, such as a social medium, does not allow pornography under its terms of service, measures such as strengthening content moderation and user reporting would be more appropriate and effective for protecting children than age verification. That would allow content to be better detected and removed, instead of restricting children from a service that is designed to be appropriate for their use—as my noble friend Lady Harding of Winscombe puts it, avoiding the situation where children are removed from these services altogether.

While I am sympathetic to the aims of these amendments, I assure noble Lords that the Bill already has robust, comprehensive protections in place to keep children safe from all pornographic content, wherever or however it appears online. This amendment is therefore unnecessary because it duplicates the existing provisions for user-to-user pornography in the child safety duties in Part 3.

It is important to be clear that, wherever they are regulated in the Bill, companies will need to ensure that children cannot access pornographic content online. This is made clear, for user-to-user content, in Clause 11(3); for search services, in Clause 25(3); and for published pornographic content in Clause 72(2). Moving the regulation of pornography from Part 3 to Part 5 would not be a workable or desirable option because the framework is effective only if it is designed to reflect the characteristics of the services in scope.

Part 3 has been designed to address the particular issues arising from the rapid growth in platforms that allow the sharing of user-generated content but are not the ones choosing to upload that content. The scale and speed of dissemination of user-generated content online demands a risk-based and proportionate approach, as Part 3 sets out.

It is also important that these companies understand the risks to children in the round, rather than focusing on one particular type of content. Risks to children will often be a consequence of the design of these services—for instance, through algorithms, which need to be tackled holistically.

I know that the noble Baroness is concerned about whether pornography will indeed be designated as primary priority content for the purposes of the child safety duties in Clauses 11(3) and 25(3). The Government fully intend this to be the case, which means that user-to-user services will need to have appropriate systems to prevent children accessing pornography, as defined in Clause 70(2).

The approach taken in Part 3 is very different from services captured under Part 5, which are publishing content directly, know exactly where it is located on their site and already face legal liability for the content. In this situation the service has full control over its content, so a risk-based approach is not appropriate. It is reasonable to expect that service to prevent children accessing pornography. We do not therefore consider it necessary or effective to apply the Part 5 duties to user-to-user pornographic content.

I also assure the noble Baroness and the noble Lord that, in a case where a provider of user-to-user services is directly publishing pornographic content on its own service, it will already be subject to the Part 5 duties in relation to that particular content. Those duties in relation to that published pornographic content will be separate from and in addition to their Part 3 duties in relation to user-generated pornographic content.

This means that, no matter where published pornographic content appears, the obligation to ensure that children are not normally able to encounter it will apply to all in-scope internet service providers that publish pornographic content. This is made clear in Clause 71(2) and is regardless of whether they also offer user-to-user or search services.

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[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—

[Lord Bethell (Con)]

I am sorry to come back to the same point, but let us take the Twitter example. As a publisher of pornography, does Twitter then inherit Part 5 responsibilities in as much as it is publishing pornography?

[Lord Parkinson of Whitley Bay (Con)]

It is covered in the Bill as Twitter. I am not quite sure what my noble friend is asking me. The harms that he is worried about are covered in different ways. Twitter or another social medium that hosts such content would be hosting it, not publishing it, so would be covered by Part 3 in that instance.

[Lord Bethell (Con)]

Maybe my noble friend the Minister could write to me to clarify that point, because it is quite a significant one.

[Lord Parkinson of Whitley Bay (Con)]

Perhaps I will speak to the noble Lord afterwards and make sure I have his question right before I do so.

I hope that answers the questions from the noble Baroness, Lady Ritchie, and that on that basis, she will be happy to withdraw her amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, this has been a very wide-ranging debate, concentrating not only on the definition of pornography but on the views of noble Lords in relation to how it should be regulated, and whether it should be regulated, as the noble Baroness, Lady Kidron, the noble Lords, Lord Bethell and Lord Browne, and I myself believe, or whether it should be a graduated response, which seems to be the view of the noble Lords, Lord Allan and Lord Clement-Jones.

I believe that all pornography should be treated the same. There is no graduated response. It is something that is pernicious and leads to unintended consequences for many young people, so therefore it needs to be regulated in all its forms. I think that is the point that the noble Lord, Lord Bethell, was making. I believe that these amendments should have been debated along with those of the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, because then we could have an ever wider-ranging debate, and I look forward to that in the further groups in the days to come. The focus should be on the content, not on the platform, and the content is about pornography.

I agree with the noble Baroness, Lady Kidron, that porn is not the only harm, and I will be supporting her amendments. I believe that they should be in the Bill because if we are serious about dealing with these issues, they have to be in there.

I do not think my amendments are suggesting that children will be removed from social media. I agree that it is a choice to remove pornography or to age-gate. Twitter is moving to subscriber content anyway, so it can do it; the technology is already available to do that. I believe you just age-gate the porn content, not the whole site. I agree with the noble Lord, Lord Clement-Jones, as I said. These amendments should have been debated in conjunction with those of the noble Lord, Lord Bethell, and the noble Baroness, Lady Kidron, as I believe that the amendments in this group are complementary to those, and I think I already said that in my original submission.

I found the Minister’s response interesting. Obviously, I would like time to read Hansard. I think certain undertakings were given, but I want to see clearly spelled out where they are and to discuss with colleagues across the House where we take these issues and what we come back with on Report.

I believe that these issues will be debated further in Committee when the amendments from the noble Baroness, Lady Kidron, and the noble Lord, Lord Bethell, are debated. I hope that in the intervening period the Minister will have time to reflect on the issues raised today about Parts 3 and 5 and the issue of pornography, and that he will be able to help us in further sessions in assuaging the concerns that we have raised about pornography. There is no doubt that these issues will come back. The only way that they can be dealt with, that pornography can be dealt with and that all our children throughout the UK can be dealt with is through proper regulation.

I think we all need further reflection. I will see, along with colleagues, whether it is possible to come back on Report. In the meantime, I beg leave to withdraw the amendment.

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Moved by

[Lord Parkinson of Whitley Bay]

12C: Clause 6, page 5, line 23, at end insert “(2) to (10)”
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 11 below (because the new duty to summarise children’s risk assessments in the terms of service is only imposed on providers of Category 1 services).

Online Safety Bill

Lord Parkinson of Whitley Bay Excerpts

Committee stage
Tuesday 25th April 2023 Lords Chamber

Finally, let me say this in anticipation of the Minister perhaps suggesting that this might be a good idea but we are far down the road with the Bill and Ofcom is ready to go and we want to get on with implementing it, so maybe let us not do this now but perhaps in another piece of legislation. Personally, I am interested in having a conversation about the sequence of implementation. It might be that we can implement the regime that Ofcom is good to go on but with the powers there in the Bill for it to cover app stores and some other wider internet services, according to a road map that it sets out and that we in Parliament can scrutinise. However, my general message is, as the noble Baroness, Lady Kidron, said, that we should get this right in this legislation and grab the opportunity, particularly with app stores, to bring other internet services in—given that we consume so much through applications—and to provide a safer environment for our children.

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

My Lords, I share noble Lords’ determination to deliver the strongest protections for children and to develop a robust and future-proofed regulatory regime. However, it will not be possible to solve every problem on the internet through this Bill, nor through any piece of legislation, flagship or otherwise. The Bill has been designed to confer duties on the services that pose the greatest risk of harm—user-to-user services and search services—and where there are proportionate measures that companies can take to protect their users.

As the noble Baroness, Lady Kidron, and others anticipated, I must say that these services act as a gateway for users to discover and access other online content through search results and links shared on social media. Conferring duties on these services will therefore significantly reduce the risk of users going on to access illegal or harmful content on non-regulated services, while keeping the scope of the Bill manageable and enforceable.

As noble Lords anticipated, there is also a practical consideration for Ofcom in all this. I know that many noble Lords are extremely keen to see this Bill implemented as swiftly as possible; so am I. However, as the noble Lord, Lord Allan, rightly pointed out, making major changes to the Bill’s scope at this stage would have significant implications for Ofcom’s implementation timelines. I say this at the outset because I want to make sure that noble Lords are aware of those implications as we look at these issues.

I turn first to Amendments 2, 3, 5, 92 and 193, tabled by the noble Baroness, Lady Kidron. These aim to expand the number of services covered by the Bill to incorporate a broader range of services accessed by children and a broader range of harms. I will cover the broader range of harms more fully in a separate debate when we come to Amendment 93, but I am very grateful to the noble Baroness for her constructive and detailed discussions on these issues over the past few weeks and months.

These amendments would bring new services into scope of the duties beyond user-to-user and search services. This could include services which enable or promote commercial harms, including consumer businesses such as online retailers. As I have just mentioned in relation to the previous amendments, bringing many more services into scope would delay the implementation of Ofcom’s priorities and risk detracting from its work overseeing existing regulated services where the greatest risk of harm exists—we are talking here about the services run by about 2.5 million businesses in the UK alone. I hope noble Lords will appreciate from the recent communications from Ofcom how challenging the implementation timelines already are, without adding further complication.

Amendment 92 seeks to change the child-user condition in the children’s access assessment to the test in the age-appropriate design code. The test in the Bill is already aligned with the test in that code, which determines whether a service is likely to be accessed by children, in order to ensure consistency for providers. The current child-user condition determines that a service is likely to be accessed by children where it has a significant number or proportion of child users, or where it is of a kind likely to attract a significant number or proportion of child users. This will already bring into scope services of the kind set out in this amendment, such as those which are designed or intended for use by children, or where children form a—

[Baroness Kidron (CB)]

I am sorry to interrupt. Will the Minister take the opportunity to say what “significant” means, because that is not aligned with the ICO code, which has different criteria?

[Lord Parkinson of Whitley Bay (Con)]

If I can finish my point, this will bring into scope services of the kind set out in the amendments, such as those designed or intended for use by children, or where children form a substantial and identifiable user group. The current condition also considers the nature and content of the service and whether it has a particular appeal for children. Ofcom will be required to consult the Information Commissioner’s Office on its guidance to providers on fulfilling this test, which will further support alignment between the Bill and the age-appropriate design code.

On the meaning of “significant”, a significant number of children means a significant number in itself or a significant proportion of the total number of UK-based users on the service. In the Bill, “significant” has its ordinary meaning, and there are many precedents for it in legislation. Ofcom will be required to produce and publish guidance for providers on how to make the children’s access assessment. Crucially, the test in the Bill provides more legal certainty and clarity for providers than the test outlined in the code. “Substantive” and “identifiable”, as suggested in this amendment, do not have such a clear legal meaning, so this amendment would give rise to the risk that the condition is more open to challenge from providers and more difficult to enforce. On the other hand, as I said, “significant” has an established precedent in legislation, making it easier for Ofcom, providers and the courts to interpret.

The noble Lord, Lord Knight, talked about the importance of future-proofing the Bill and emerging technologies. As he knows, the Bill has been designed to be technology neutral and future-proofed, to ensure that it keeps pace with emerging technologies. It will apply to companies which enable users to share content online or to interact with each other, as well as to search services. Search services using AI-powered features will be in scope of the search duties. The Bill is also clear that content generated by AI bots is in scope where it interacts with user-generated content, such as bots on Twitter. The metaverse is also in scope of the Bill. Any service which enables users to interact as the metaverse does will have to conduct a child access test and comply with the child safety duties if it is likely to be accessed by children.

[Lord Knight of Weymouth (Lab)]

I know it has been said that the large language models, such as that used by ChatGPT, will be in scope when they are embedded in search, but are they in scope generally?

[Lord Parkinson of Whitley Bay (Con)]

They are when they apply to companies enabling users to share content online and interact with each other or in terms of search. They apply in the context of the other duties set out in the Bill.

Amendments 19, 22, 298 and 299, tabled by my noble friend Lady Harding of Winscombe, seek to impose child safety duties on application stores. I am grateful to my noble friend and others for the collaborative approach that they have shown and for the time that they have dedicated to discussing this issue since Second Reading. I appreciate that she has tabled these amendments in the spirit of facilitating a conversation, which I am willing to continue to have as the Bill progresses.

As my noble friend knows from our discussions, there are challenges with bringing application stores—or “app stores” as they are popularly called—into the scope of the Bill. Introducing new duties on such stores at this stage risks slowing the implementation of the existing child safety duties, in the way that I have just outlined. App stores operate differently from user-to-user and search services; they pose different levels of risk and play a different role in users’ experiences online. Ofcom would therefore need to recruit different people, or bring in new expertise, to supervise effectively a substantially different regime. That would take time and resources away from its existing priorities.

We do not think that that would be a worthwhile new route for Ofcom, given that placing child safety duties on app stores is unlikely to deliver any additional protections for children using services that are already in the scope of the Bill. Those services must already comply with their duties to keep children safe or will face enforcement action if they do not. If companies do not comply, Ofcom can rely on its existing enforcement powers to require app stores to remove applications that are harmful to children. I am happy to continue to discuss this matter with my noble friend and the noble Lord, Lord Knight, in the context of the differing implementation timelines, as he has asked.

[Lord Stevenson of Balmacara (Lab)]

The Minister just said something that was material to this debate. He said that Ofcom has existing powers to prevent app stores from providing material that would have caused problems for the services to which they allow access. Can he confirm that?

[Lord Parkinson of Whitley Bay (Con)]

Perhaps the noble Lord could clarify his question; I was too busy finishing my answer to the noble Lord, Lord Knight.

[Lord Stevenson of Balmacara (Lab)]

It is a continuation of the point raised by the noble Baroness, Lady Harding, and it seems that it will go part of the way towards resolving the differences that remain between the Minister and the noble Baroness, which I hope can be bridged. Let me put it this way: is it the case that Ofcom either now has powers or will have powers, as a result of the Bill, to require app stores to stop supplying children with material that is deemed in breach of the law? That may be the basis for understanding how you can get through this. Is that right?

[Lord Parkinson of Whitley Bay (Con)]

Services already have to comply with their duties to keep children safe. If they do not comply, Ofcom has powers of enforcement set out, which require app stores to remove applications that are harmful to children. We think this already addresses the point, but I am happy to continue discussing it offline with the noble Lord, my noble friend and others who want to explore how. As I say, we think this is already covered. A more general duty here would risk distracting from Ofcom’s existing priorities.

[Lord Allan of Hallam (LD)]

My Lords, on that point, my reading of Clauses 131 to 135, where the Bill sets out the business disruption measures, is that they could be used precisely in that way. It would be helpful for the Minister responding later to clarify that Ofcom would use those business disruption measures, as the Government explicitly anticipate, were an app store, in a rogue way, to continue to list a service that Ofcom has said should not be made available to people in the United Kingdom.

[Lord Parkinson of Whitley Bay (Con)]

I will be very happy to set that out in more detail.

Amendments 33A and 217A in the name of the noble Lord, Lord Storey, would place a new duty on user-to-user services that predominantly enable online gaming. Specifically, they would require them to have a classification certificate stating the age group for which they are suitable. We do not think that is necessary, given that there is already widespread, voluntary uptake of approval classification systems in online gaming.

--- Later in debate ---

[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.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sympathetic to arguments that we must avoid imposing disproportionate burdens on regulated services, but I cannot accept the amendments tabled by the noble Baroness, Lady Fox, and others. Doing so would greatly reduce the strong protections that the Bill offers to internet users, particularly to children. I agree with the noble Baroness, Lady Merron, that that has long been the shared focus across your Lordships’ House as we seek to strike the right balance through the Bill. I hope to reassure noble Lords about the justification for the existing balance and scope, and the safeguards built in to prevent undue burdens to business.

I will start with the amendments tabled by the noble Baroness, Lady Fox of Buckley—Amendments 4, 6 to 8, 12, 288 and 305—which would significantly narrow the definition of services in scope of regulation. The current scope of the Bill reflects evidence of where harm is manifested online. There is clear evidence that smaller services can pose a significant risk of harm from illegal content, as well as to children, as the noble Baroness, Lady Kidron, rightly echoed. Moreover, harmful content and activity often range across a number of services. While illegal content or activity may originate on larger platforms, offenders often seek to move to smaller platforms with less effective systems for tackling criminal activity in order to circumvent those protections. Exempting smaller services from regulation would likely accelerate that process, resulting in illegal content being displaced on to smaller services, putting users at risk.

These amendments would create significant new loopholes in regulation. Rather than relying on platforms and search services to identify and manage risk proactively, they would require Ofcom to monitor smaller harmful services, which would further annoy my noble friend Lord Moylan. Let me reassure the noble Baroness, however, that the Bill has been designed to avoid disproportionate or unnecessary burdens on smaller services. All duties on services are proportionate to the risk of harm and the capacity of companies. This means that small, low-risk services will have minimal duties imposed on them. Ofcom’s guidance and codes of practice will set out how they can comply with their duties, in a way that I hope is even clearer than the Explanatory Notes to the Bill, but certainly allowing for companies to have a conversation and ask for areas of clarification, if that is still needed. They will ensure that low-risk services do not have to undertake unnecessary measures if they do not pose a risk of harm to their users.

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[Lord Moylan (Con)]

My Lords, while my noble friend is talking about the possibility of excessive and disproportionate burden on businesses, can I just ask him about the possibility of excessive and disproportionate burden on the regulator? He seems to be saying that Ofcom is going to have to maintain, and keep up to date regularly, 25,000 risk assessments—this is on the Government’s own assessment, produced 15 months ago, of the state of the market then—even if those assessments carried out by Ofcom result in very little consequence for the regulated entity.

We know from regulation in this country that regulators already cannot cope with the burdens placed on them. They become inefficient, sclerotic and unresponsive; they have difficulty in recruiting staff of the same level and skills as the entities that they regulate. We have a Financial Services and Markets Bill going through at the moment, and the FCA is a very good example of that. Do we really think that this is a sensible burden to place on a regulator that is actually able to discharge it?

[Lord Parkinson of Whitley Bay (Con)]

The Bill creates a substantial new role for Ofcom, but it has already substantially recruited and prepared for the effective carrying out of that new duty. I do not know whether my noble friend was in some of the briefings with officials from Ofcom, but it is very happy to set out directly the ways in which it is already discharging, or preparing to discharge, those duties. The Government have provided it with further resource to enable it to do so. It may be helpful for my noble friend to have some of those discussions directly with the regulator, but we are confident that it is ready to discharge its duties, as set out in the Bill.

I was about to say that we have already had a bit of discussion on Wikipedia. I am conscious that we are going to touch on it again in the debate on the next group of amendments so, at the risk of being marked down for repetition, which is a black mark on that platform, I shall not pre-empt what I will say shortly. But I emphasise that the Bill does not impose prescriptive, one-size-fits-all duties on services. The codes of practice from Ofcom will set out a range of measures that are appropriate for different types of services in scope. Companies can follow their own routes to compliance, so long as they are confident that they are effectively managing risks associated with legal content and, where relevant, harm to children. That will ensure that services that already use community moderation effectively can continue to do so—such as Wikipedia, which successfully uses that to moderate content. As I say, we will touch on that more in the debate on the next group.

Amendment 9, in the name of my noble friend Lord Moylan, is designed to exempt small and medium sized-enterprises working to benefit the public from the scope of the Bill. Again, I am sympathetic to the objective of ensuring that the Bill does not impose undue burdens on small businesses, and particularly that it should not inhibit services from providing valuable content of public benefit, but I do not think it would be feasible to exempt service providers deemed to be

“working to benefit the public”.

I appreciate that this is a probing amendment, but the wording that my noble friend has alighted on highlights the difficulties of finding something suitably precise and not contestable. It would be challenging to identify which services should qualify for such an exemption.

Taking small services out of scope would significantly undermine the framework established by the Bill, as we know that many smaller services host illegal content and pose a threat to children. Again, let me reassure noble Lords that the Bill has been designed to avoid disproportionate or unnecessary regulatory burdens on small and low-risk services. It will not impose a disproportionate burden on services or impede users’ access to value content on smaller services.

Amendment 9A in the name of the noble Lord, Lord Knight of Weymouth, is designed to exempt “sector specific search services” from the scope of the Bill, as the noble Baroness, Lady Merron, explained. Again, I am sympathetic to the intention here of ensuring that the Bill does not impose a disproportionate burden on services, but this is another amendment that is not needed as it would exempt search services that may pose a significant risk of harm to children, or because of illegal content on them. The amendment aims to exempt specialised search services—that is, those that allow users to

“search for … products or services … in a particular sector”.

It would exempt specialised search services that could cause harm to children or host illegal content—for example, pornographic search services or commercial search services that could facilitate online fraud. I know the noble Lord would not want to see that.

The regulatory duties apply only where there is a significant risk of harm and the scope has been designed to exclude low-risk search services. The duties therefore do not apply to search engines that search a single database or website, for example those of many retailers or other commercial websites. Even where a search service is in scope, the duties on services are proportionate to the risk of harm that they pose to users, as well as to a company’s size and capacity. Low-risk services, for example, will have minimal duties. Ofcom will ensure that these services can quickly and easily comply by publishing risk profiles for low-risk services, enabling them easily to understand their risk levels and, if necessary, take steps to mitigate them.

The noble Lord, Lord McCrea, asked some questions about the 200 most popular pornographic websites. If I may, I will respond to the questions he posed, along with others that I am sure will come in the debate on the fifth group, when we debate the amendments in the names of the noble Lord, Lord Morrow, and the noble Baroness, Lady Ritchie of Downpatrick, because that will take us on to the same territory.

I hope that provides some assurance to my noble friend Lord Moylan, the noble Baroness, Lady Fox, and others, and that they will be willing not to press their amendments in this group.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank people for such a wide-ranging and interesting set of contributions. I take comfort from the fact that so many people understood what the amendments were trying to do, even if they did not fully succeed in that. I thought it was quite interesting that in the first debate the noble Lord, Lord Allan of Hallam, said that he might be a bit isolated on the apps, but I actually agreed with him—which might not do his reputation any good. However, when he said that, I thought, “Welcome to my world”, so I am quite pleased that this has not all been shot down in flames before we started. My amendment really was a serious attempt to tackle something that is a real problem.

The Minister says that the Bill is designed to avoid disproportionate burdens on services. All I can say is, “Sack the designer”. It is absolutely going to have a disproportionate burden on a wide range of small services, which will not be able to cope, and that is why so many of them are worried about it. Some 80% of the companies that will be caught up in this red tape are small and micro-businesses. I will come to the small business point in a moment.

The noble Baroness, Lady Harding, warned us that small tech businesses become big tech businesses. As far as I am concerned, that is a success story—it is what I want; is it not what we all want? Personally, I think economic development and growth is a positive thing—I do not want them to fail. However, I do not think it will ever happen; I do not think that small tech businesses will ever grow into big tech businesses if they face a disproportionate burden in the regulatory sense, as I have tried to describe. That is what I am worried about, and it is not a positive thing to be celebrated.

I stress that it is not small tech and big tech. There are also community sites, based on collective moderation. Wikipedia has had a lot of discussion here. For a Bill that stresses that it wants to empower users, we should think about what it means when these user-moderated community sites are telling us that they will not be able to carry on and get through. That is what they are saying. It was interesting that the noble Lord, Lord Clement-Jones, said that he relies on Wikipedia—many of us do, although please do not believe what it says about me. There are all of these things, but then there was a feeling that, well, Reddit is a bit dodgy. The Bill is not meant to be deciding which ones to trust in quite that way, or people’s tastes.

I was struck that the noble Baroness, Lady Kidron, said that small is not safe, and used the incel example. I am not emphasising that small is safe; I am saying that the small entities will not survive this process. That is my fear. I do not mean that the big ones are nasty and dangerous and the small ones are cosy, lovely and Wikipedia-like. I am suggesting that smaller entities will not be able to survive the regulatory onslaught. That is the main reason I raised this.

The noble Baroness, Lady Merron, said that these entities can cause great harm. I am worried about a culture of fear, in which we demonise tens of thousands of innocent tech businesses and communities and end up destroying them when we do not intend to. I tried to put in the amendment an ability for Ofcom, if there are problematic sites that are risky, to deal with them. As the Minister kept saying, low-risk search engines have been exempted. I am suggesting that low-risk small and micro-businesses are exempted, which is the majority of them. That is what I am suggesting, rather than that we assume they are all guilty and then they have to get exempted.

Interestingly, the noble Lord, Lord McCrea, asked how many pornography sites are in scope and which pornographic websites have a million or fewer users. I am glad I do not know the answer to that, otherwise people might wonder why I did. The point is that there are always going to be sites that are threatening or a risk to children, as we are discussing. But we must always bear in mind—this was the important point that the noble Lord, Lord Moylan, made—that in our absolute determination to protect children via this Bill we do not unintendedly damage society as a whole. Adult access to free speech, for example, is one of my concerns, as are businesses and so on. We should not have that as an outcome.

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[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.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I agree that this has been a rather unfortunate grouping and has led to a slightly strange debate. I apologise if it is the result of advice given to my noble friend. I know there has been some degrouping as well, which has led to slightly odd combinations today. However, as promised, I shall say a bit more about Wikipedia in relation to my noble friend’s Amendments 10 and 11.

The effect of these amendments would be that moderation actions carried out by users—in other words, community moderation of user-to-user and search services —would not be in scope of the Bill. The Government support the use of effective user or community moderation by services where this is appropriate for the service in question. As I said on the previous group, as demonstrated by services such as Wikipedia, this can be a valuable and effective means of moderating content and sharing information. That is why the Bill does not impose a one-size-fits-all requirement on services, but instead allows services to adopt their own approaches to compliance, so long as these are effective. The noble Lord, Lord Allan of Hallam, dwelt on this. I should be clear that duties will not be imposed on individual community moderators; the duties are on platforms to tackle illegal content and protect children. Platforms can achieve this through, among other things, centralised or community moderation. Ultimately, however, it is they who are responsible for ensuring compliance and it is platforms, not community moderators, who will face enforcement action if they fail to do so.

--- Later in debate ---

Moved by

[Lord Parkinson of Whitley Bay]

12A: Clause 6, page 5, line 11, at end insert “(2) to (8)”
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 9 below (because the new duty to summarise illegal content risk assessments in the terms of service is only imposed on providers of Category 1 services).

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this group of government amendments relates to risk assessments; it may be helpful if I speak to them now as the final group before the dinner break.

Risk management is at the heart of the Bill’s regulatory framework. Ofcom and services’ risk assessments will form the foundation for protecting users from illegal content and content which is harmful to children. They will ensure that providers thoroughly identify the risks on their own websites, enabling them to manage and mitigate the potential harms arising from them. Ofcom will set out the risks across the sector and issue guidance to companies on how to conduct their assessments effectively. All providers will be required to carry out risk assessments, keep them up-to-date and update them before making a significant change to the design or operation of their service which could put their users at risk. Providers will then need to put in place measures to manage and mitigate the risks they identify in their risk assessments, including any emerging risks.

Given how crucial the risk assessments are to this framework, it is essential that we enable them to be properly scrutinised by the public. The government amendments in this group will place new duties on providers of the largest services—that is, category 1 and 2A services—to publish summaries of their illegal and child safety risk assessments. Through these amendments, providers of these services will also have a new duty to send full records of their risk assessments to Ofcom. This will increase transparency about the risk of harm on the largest platforms, clearly showing how risk is affected by factors such as the design, user base or functionality of their services. These amendments will further ensure that the risk assessments can be properly assessed by internet users, including by children and their parents and guardians, by ensuring that summaries of the assessments are publicly available. This will empower users to make informed decisions when choosing whether and how to use these services.

It is also important that Ofcom is fully appraised of the risks identified by service providers. That is why these amendments introduce duties for both category 1 and 2A services to send their records of these risk assessments, in full, to Ofcom. This will make it easier for Ofcom to supervise compliance with the risk assessment duties, as well as other duties linked to the findings of the risk assessments, rather than having to request the assessments from companies under its information-gathering powers.

These amendments also clarify that companies must keep a record of all aspects of their risk assessments, which strengthens the existing record-keeping duties on services. I hope that noble Lords will welcome these amendments. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, it is risky to stand between people and their dinner, but I rise very briefly to welcome these amendments. We should celebrate the good stuff that happens in Committee as well as the challenging stuff. The risk assessments are, I think, the single most positive part of this legislation. Online platforms already do a lot of work trying to understand what risks are taking place on their platforms, which never sees the light of day except when it is leaked by a whistleblower and we then have a very imperfect debate around it.

The fact that platforms will have to do a formal risk assessment and share it with a third-party regulator is huge progress; it will create a very positive dynamic. The fact that the public will be able to see those risk assessments and make their own judgments about which services to use—according to how well they have done them—is, again, a massive public benefit. We should welcome the fact that risk assessments are there and the improvements that this group of amendments makes to them. I hope that was short enough.

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[Baroness Merron (Lab)]

My Lords, I am grateful to the Minister for introducing this group, and we certainly welcome this tranche of government amendments. We know that there are more to come both in Committee and as we proceed to Report, and we look forward to seeing them.

The amendments in this group, as other noble Lords have said, amount to a very sensible series of changes to services’ risk-assessment duties. This perhaps begs the question of why they were not included in earlier drafts of the Bill, but we are glad to see them now.

There is, of course, the issue of precisely where some of the information will appear, as well as the wider status of terms of service. I am sure those issues will be discussed in later debates. It is certainly welcome that the department is introducing stronger requirements around the information that must be made available to users; it will all help to make this a stronger and more practical Bill.

We all know that users need to be able to make informed decisions, and it will not be possible if they are required to view multiple statements and various documents. It seems that the requirements for information to be provided to Ofcom go to the very heart of the Bill, and I suggest that the proposed system will work best if there is trust and transparency between the regulator and those who are regulated. I am sure that there will be further debate on the scope of risk assessments, particularly on issues that were dropped from previous iterations of the Bill, and certainly this is a reasonable starting point today.

I will try to be as swift as possible as I raise a few key issues. One is about avoiding warnings that are at such a high level of generality that they get put on to everything. Perhaps the Minister could indicate how Ofcom will ensure that the summaries are useful and accessible to the reader. The test, of course, should be that a summary is suitable and sufficient for a prospective user to form an assessment of the likely risk they would encounter when using the service, taking into account any special vulnerabilities that they might have. That needs to be the test; perhaps the Minister could confirm that.

Is the terms of service section the correct place to put a summary of the illegal content risk assessment? Research suggests, unsurprisingly, that only 3% of people read terms before signing up—although I recall that, in an earlier debate, the Minister confessed that he had read all the terms and conditions of his mobile phone contract, so he may be one of the 3%. It is without doubt that any individual should be supported in their ability to make choices, and the duty should perhaps instead be to display a summary of the risks with due prominence, to ensure that anyone who is considering signing up to a service is really able to read it.

I also ask the Minister to confirm that, despite the changes to Clause 19 in Amendment 16B, the duty to keep records of risk assessments will continue to apply to all companies, but with an enhanced responsibility for category 1 companies.

[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their questions on this, and particularly grateful to the noble Lord, Lord Allan, and the noble Baroness, Lady Kidron, for their chorus of welcome. Where we are able to make changes, we will of course bring them forward, and I am glad to be able to bring forward this tranche now.

As the noble Lord, Lord Allan, said, ensuring the transparency of services’ risk assessments will further ensure that the framework of the Bill delivers its core objectives relating to effective risk management and increased accountability regarding regulated services. As we have discussed, it is imperative that these providers take a thorough approach to identifying risks, including emerging risks. The Government believe that it is of the utmost importance that the public are able effectively to scrutinise the risk assessments of the largest in-scope services, so that users can be empowered to make informed decisions about whether and how to use their services.

On the questions from the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, about why it is just category 1 and category 2A services, we estimate that there will be around 25,000 UK service providers in scope of the Bill’s illegal and child safety duties. Requiring all these companies to publish full risk assessments and proactively to send them to Ofcom could undermine the Bill’s risk-based and proportionate approach, as we have discussed in previous groups on the burdens to business. A large number of these companies are likely to be low risk and it is unlikely that many people will seek out their risk assessments, so requiring all companies to publish them would be an excessive regulatory burden.

There would also be an expectation that Ofcom would proactively monitor a whole range of services, even ones that posed a minimal risk to users. That in turn could distract Ofcom from taking a risk-based approach in its regulation by overwhelming it with paperwork from thousands of low-risk services. If Ofcom wants to see records of the risk assessments of providers that are not category 1 or category 2A services, it has extensive information-gathering powers that it can use to require a provider to send it such records.

The noble Baroness, Lady Merron, was right to say that I read the terms of my broadband supply—I plead guilty to the nerdiness of doing that—but I have not read all the terms and conditions of every application and social medium I have downloaded, and I agree that many people do skim through them. They say the most commonly told lie on the planet at the moment is “I agree to the terms and conditions”, and the noble Baroness is right to point to the need for these to be intelligible, easily accessible and transparent—which of course we want to see.

In answer to her other question, the record-keeping duty will apply to all companies, but the requirement to publish is only for category 1 and category 2A companies.

The noble Baroness, Lady Kidron, asked me about Amendment 27A. If she will permit me, I will write to her with the best and fullest answer to that question.

I am grateful to noble Lords for their questions on this group of amendments.

Amendment 12A agreed.

Moved by

[Lord Parkinson of Whitley Bay]

12B: Clause 6, page 5, line 16, at end insert “(2) to (6)”
Member’s explanatory statement
This amendment is consequential on the amendments in the Minister’s name to clause 19 below (because the new duty to supply records of risk assessments to OFCOM is only imposed on providers of Category 1 services).

Online Safety Bill

Lord Parkinson of Whitley Bay Excerpts

Committee stage
Wednesday 19th April 2023 Lords Chamber

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

My Lords, let me start by saying how saying how pleased I, too, am that we are now in Committee. I thank all noble Lords for giving up their time to attend the technical briefings that officials in my department and I have held since Second Reading and for the collaborative and constructive nature of their contributions in those discussions.

In particular, not least because today is his birthday, I pay tribute to the noble Lord, Lord Stevenson of Balmacara, for his tireless work on the Bill—from his involvement in its pre-legislative scrutiny to his recall to the Front Bench in order to see the job through. We are grateful for his diligence and, if I may say so, the constructive and collaborative way in which he has gone about it. He was right to pay tribute both to my noble friend Lord Gilbert of Panteg, who chaired the Joint Committee, and to the committee’s other members, including all the other signatories to this amendment. The Bill is a better one for their work, and I repeat my thanks to them for it. In that spirit, I am grateful to the noble Lord for bringing forward this philosophical opening amendment. As noble Lords have said, it is a helpful place for us to start and refocus our thoughts as we begin our line-by-line scrutiny of this Bill.

Although I agree with the noble Lord’s broad description of his amendment’s objectives, I am happy to respond to the challenge that lies behind it and put the objectives of this important legislation clearly on the record at the outset of our scrutiny. The Online Safety Bill seeks to bring about a significant change in online safety. The main purposes of the Bill are: to give the highest levels of protection to children; to protect users of all ages from being exposed to illegal content; to ensure that companies’ approach focuses on proactive risk management and safety by design; to protect people who face disproportionate harm online including, for instance, because of their sex or their ethnicity or because they are disabled; to maintain robust protections for freedom of expression and privacy; and to ensure that services are transparent and accountable.

The Bill will require companies to take stringent measures to tackle illegal content and protect children, with the highest protections in the Bill devoted to protecting children; as the noble Baroness, Lady Benjamin, my noble friend Lord Cormack and others have again reminded us today, that is paramount. Children’s safety is prioritised throughout this Bill. Not only will children be protected from illegal content through its illegal content duties but its child safety duties add an additional layer of protection so that children are protected from harmful or inappropriate content such as grooming, pornography and bullying. I look forward to contributions from the noble Baroness, Lady Kidron, and others who will, I know, make sure that our debates are properly focused on that.

Through their duties of care, all platforms will be required proactively to identify and manage risk factors associated with their services in order to ensure both that users do not encounter illegal content and that children are protected from harmful content. To achieve this, they will need to design their services to reduce the risk of harmful content or activity occurring and take swift action if it does.

Regulated services will need to prioritise responding to online content and activity that present the highest risk of harm to users, including where this is linked to something classified as a protected characteristic under the terms of the Equality Act 2010. This will ensure that platforms protect users who are disproportionately affected by online abuse—for example, women and girls. When undertaking child safety and illegal content risk assessments, providers must consider whether certain people face a greater risk of harm online and ensure that those risks are addressed and mitigated.

The Bill will place duties relating to freedom of expression and privacy on both Ofcom and all in-scope companies. Those companies will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Ofcom will need to carry out its new duties in a way that protects freedom of expression. The largest services will also have specific duties to protect democratic and journalistic content.

Ensuring that services are transparent about the risks on their services and the actions they are taking to address them is integral to this Bill. User-to-user services must set out in their terms of service how they are complying with their illegal and child safety duties. Search services must do the same in public statements. In addition, government amendments that we tabled yesterday will require the biggest platforms to publish summaries of their illegal and their child safety risk assessments, increasing transparency and accountability, and Ofcom will have a power to require information from companies to assess their compliance with providers’ duties.

Finally, the Bill will also increase transparency and accountability relating to platforms with the greatest influence over public discourse. They will be required to ensure that their terms of service are clear and properly enforced. Users will be able to hold platforms accountable if they fail to enforce those terms.

The noble Baroness, Lady Kidron, asked me to say which of the proposed new paragraphs (a) to (g), to be inserted by Amendment 1, are not the objectives of this Bill. Paragraph (a) sets out that the Bill must ensure that services

“do not endanger public health or national security”.

The Bill will certainly have a positive impact on national security, and a core objective of the Bill is to ensure that platforms are not used to facilitate terrorism. Ofcom will issue a stand-alone code on terrorism, setting out how companies can reduce the risk of their services being used to facilitate terrorist offences, and remove such content swiftly if it appears. Companies will also need to tackle the new foreign interference offence as a priority offence. This will ensure that the Bill captures state-sponsored disinformation, which is of most concern—that is, attempts by foreign state actors to manipulate information to interfere in our society and undermine our democratic, political and legal processes.

The Bill will also have a positive impact on public health but I must respectfully say that that is not a primary objective of the legislation. In circumstances where there is a significant threat to public health, the Bill already provides powers for the Secretary of State both to require Ofcom to prioritise specified objectives when carrying out its media literacy activity and to require companies to report on the action they are taking to address the threat. Although the Bill may lead to additional improvements—I am sure that we all want to see them—for instance, by increasing transparency about platforms’ terms of service relating to public health issues, making this a primary objective on a par with the others mentioned in the noble Lord’s amendment risks making the Bill much broader and more unmanageable. It is also extremely challenging to prohibit such content, where it is viewed by adults, without inadvertently capturing useful health advice or legitimate debate and undermining the fundamental objective of protecting freedom of expression online—a point to which I am sure we will return.

The noble Lord’s amendment therefore reiterates many objectives that are interwoven throughout the legislation. I am happy to say again on the record that I agree with the general aims it proposes, but I must say that accepting it would be more difficult than the noble Lord and others who have spoken to it have set out. Accepting this amendment, or one like it, would create legal uncertainty. I have discussed with the officials sitting in the Box—the noble Baroness, Lady Chakrabarti, rightly paid tribute to them—the ways in which such a purposive statement, as the noble Lord suggests, could be made; we discussed it between Second Reading and now.

I appreciate the care and thought with which the noble Lord has gone about this—mindful of international good practice in legislation and through discussion with the Public Bill Office and others, to whom he rightly paid tribute—but any deviation from the substantive provisions of the Bill and the injection of new terminology risk creating uncertainty about the proper interpretation and application of those provisions. We have heard that again today; for example, the noble Baroness, Lady Fox, said that she was not clear what the meaning of certain words may be while my noble friend Lady Stowell made a plea for simplicity in legislation. The noble Lord, Lord Griffiths, also gave an eloquent exposition of the lexicographical befuddlement that can ensue when new words are added. All pointed to some confusion; indeed, there have been areas of disagreement even in what I am sure the noble Lord, Lord Stevenson, thinks was a very consensual summary of the purposes of the Bill.

That legal uncertainty could provide the basis for an increased number of judicial reviews or challenges to the decisions taken under the Bill and its framework, creating significant obstacles to the swift and effective implementation of the new regulatory framework, which I know is not something that he or other noble Lords would want. As noble Lords have noted, this is a complicated Bill, but adding further statements and new terminology to it, for however laudable a reason, risks adding to that complication, which can only benefit those with, as the noble Baroness, Lady Kidron, put it, the deepest pockets.

However, lest he think that I and the Government have not listened to his pleas or those of the Joint Committee, I highlight, as my noble friend Lady Stowell did, that the Joint Committee’s original recommendation was that these objectives

“should be for Ofcom”.

The Government took that up in Schedule 4 to the Bill, and in Clause 82(4), which set out objectives for the codes and for Ofcom respectively. At Clause 82(4) the noble Lord will see the reference to

“the risk of harm to citizens presented by content on regulated services”

and

“the need for a higher level of protection for children than for adults”.

I agree with the noble Baroness, Lady Chakrabarti, that it is not impossible to add purposive statements to Bills and nor is it unprecedented. I echo her tribute to the officials and lawyers in government who have worked on this Bill and given considerable thought to it. She has had the benefit of sharing their experience and the difficulties of writing tightly worded legislation. In different moments of her career, she has also had the benefit of picking at the loose threads in legislation and poking at the holes in it. That is the purpose of lawyers who question the thoroughness with which we have all done our work. I will not call them “pesky lawyers”, as she did—but I did hear her say it. I understand the point that she was making in anticipation but reassure her that she has not pre-empted the points that I was going to make.

To the layperson, legislation is difficult to understand, which is why we publish Explanatory Notes, on which the noble Baroness and others may have had experience of working before. I encourage noble Lords, not just today but as we go through our deliberations, to consult those as well. I hope that noble Lords will agree that they are more easily understood, but if they do not do what they say and provide explanation, I will be very willing to listen to their thoughts on it.

So, while I am not going to give the noble Lord, Lord Stevenson, the birthday present of accepting his amendment, I hope that the clear statement that I gave at the outset from this Dispatch Box, which is purposive as well, about the objectives of the Bill, and my outline of how it tries to achieve them, is a sufficient public statement of our intent, and that it achieves what I hope he was intending to get on the record today. I invite him to withdraw his amendment.

[Lord Stevenson of Balmacara (Lab)]

Well, my Lords, it has been a very good debate, and we should be grateful for that. In some senses, I should bank that; we have got ourselves off to a good start for the subsequent debates and discussions that we will have on the nearly 310 amendments that we must get through before the end of the process that we have set out on.

However, let us pause for a second. I very much appreciated the response, not least because it was very sharp and very focused on the amendment. It would have been tempting to go wider and wider, and I am sure that the Minister had that in mind at some point, but he has not done that. The first substantial point that he made seemed to be a one-pager about what this Bill is about. Suitably edited and brought down to manageable size, it would fit quite well into the Bill. I am therefore a bit puzzled as to why he cannot make the jump, intellectually or otherwise, from having that written for him and presumably working on it late at night with candles so that it was perfect—because it was pretty good; I will read it very carefully in Hansard, but it seemed to say everything that I wanted to say and covered most of the points that everybody else thought of to say, in a way that would provide clarity for those seeking it.

The issue we are left with was touched on by the noble Baroness, Lady Stowell, in her very perceptive remarks. Have we got this pointing in the right direction? We should think about it as a way for the Government to get out of this slightly ridiculous shorthand of the safest place to be online, to a statement to themselves about what they are trying to do, rather than an instruction to Ofcom—because that is where it gets difficult and causes problems with the later stages. This is really Parliament and government agreeing to say this, in print, rather than just through reading Hansard. That then reaches back to where my noble friend Lady Chakrabarti is, and it helps the noble Baroness, Lady Harding, with her very good point, that this will not work if people do not even bother to get through the first page.

Young Female Racing Drivers

Lord Parkinson of Whitley Bay Excerpts

Tuesday 18th April 2023 Lords Chamber

[Lord Strathcarron]

To ask His Majesty’s Government what steps they are taking to support young female racing drivers to ensure that they enjoy the same opportunities as their male counterparts.

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

My Lords, the Government are committed to supporting women’s sport at every opportunity, pushing for greater participation, employment, commercial opportunities and visibility in the media. We warmly welcome the creation of the F1 Academy in providing opportunities for young female drivers to progress to higher levels of competition in motorsport and we support its focus on uncovering the next generation of young female drivers.

[Lord Strathcarron (Con)]

I thank my noble friend the Minister for his reply. While the UK remains the £9 billion-a-year epicentre of world motorsport and Formula 1 itself and seven out of 10 of the Grand Prix teams are based in the UK, and while three out of five of the fastest male drivers in the world are British and the fastest female driver in the world is British, last year the women’s W Series championship was curtailed through a lack of funding. Should the same fate befall the F1 Academy series, which my noble friend the Minister mentioned, would he use his legendary powers of persuasion to convince the motorsport hierarchy that investing in women’s motorsport is a good idea, not just in itself but to maintain the UK’s position as the premier leader in world motorsport?

[Lord Parkinson of Whitley Bay (Con)]

I certainly agree with my noble friend that it is definitely a worthwhile investment. As recent achievements in football, rugby and tennis have shown, women’s successes in sport not only bring delight to the viewing public but inspire women and girls to take part and to get more active. As a Formula 1 fan myself, I warmly welcome the creation of the F1 Academy and look forward to its first race in Austria later this month. I am also pleased by the news that its races will align next season with Formula 1 race weekends. It is run by Susie Wolff, who is an inspiring role model. At the British Grand Prix in 2014, she became the first woman to take part in a Formula 1 race weekend in 22 years. With a British team taking part, and with British drivers including Chloe Grant, Abbi Pulling and Jessica Edgar hoping to follow hot on the heels of the three-time W Series winner Jamie Chadwick, it is clear that there are many reasons for British fans to be especially excited.

[Lord Hain (Lab)]

My Lords, is not the problem that initiatives around women’s participation in motorsport begin far too late, when all the best racing drivers start in karting at six or seven years old? Likewise, Ministers need to start promoting more women engineers, beginning with schoolgirls. Could the Government be much more positive towards motorsport, in which, as the noble Lord, Lord Strathcarron, said, the UK is a world leader? As such, the sport is a great ambassador for British high-performance engineering and talent, including championing sustainable fuels which are carbon neutral.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is right to point to the many ways that women can get involved in motorsports, not just as drivers but as team principals, nutritionists, psychologists, talent scouts and in many other roles. Lots of people have obviously been inspired by the recent Netflix series, “Drive to Survive”, which perhaps did not give enough screen time to all the women who take part. There is definitely a role for the sport itself, as well as for government and parliamentarians in exchanges such as this, to draw attention to that and to inspire people to get involved at every level.

[Lord Addington (LD)]

My Lords, can the Minister assure us that there will be a slightly more open and coherent attitude towards the full participation of women across non-traditional groups? At the moment, the Government seem to be following behind the sports themselves as opposed to leading. Will they tell us where that guidance will come from and who will be leading it?

[Lord Parkinson of Whitley Bay (Con)]

My department is in the process of finalising a new government sports strategy. Central to that is tackling the inequalities that exist in activity rates and making all sports more inclusive. We want to see people getting involved. I have pointed to recent successes of the Lionesses and the achievements of the Red Roses and the Great Britain team in tennis. Those British heroes are inspiring women and girls to get involved and we are keen to amplify their successes to inspire others.

[Baroness Sugg (Con)]

My Lords, is my noble friend the Minister aware of Extreme E, the off-road electric series that requires teams to put up one male and one female driver? They use the same equipment, they race the same track, and they both make an equal contribution to the team’s performance. Will the Minister join me in welcoming that as creating new opportunities for female motorsport drivers?

[Lord Parkinson of Whitley Bay (Con)]

I certainly do, and I know that Extreme E was important to Jamie Chadwick’s career progression before the W Series. I had the pleasure of taking part in the Lords versus Commons full-bore rifle match alongside my noble friend Lady Sugg, which is another sport in which men and women compete alongside each other on equal terms. In some settings, that is of course possible and to be encouraged.

[Baroness Merron (Lab)]

My Lords, as the Minister referred to, while the “Drive to Survive” series has been hugely successful, females in motorsport found that women spoke only for some six minutes and seven seconds of the six and a half hours of the series. They did that as fans or as workers providing food or applying make-up to drivers, which reflected that women are, to make an understatement, very much in the background of the industry. What discussions has the department had with key motorsport stakeholders about addressing the presence of women across the industry? Could the Department for Education perhaps be prevailed upon to do more to ensure that relevant apprenticeships and vocational courses are signposted to everyone, irrespective of their gender?

[Lord Parkinson of Whitley Bay (Con)]

I certainly agree with the noble Baroness: we want to hear more from the women who are involved at the highest levels in motorsport, inspiring women such as Susie Wolff, and to remind people of the trailblazing women who have paved the way, such as Lella Lombardi and Desiré Wilson—who has a grandstand name after her at Brands Hatch. Officials at the department have spoken to Formula 1 about the creation of the F1 Academy. As I say, we warmly welcome that as a way of inspiring more people, and are working on the cross-government sports strategy, which, of course, involves liaising with the Department for Education to make sure that in schools we are enabling people to get involved, try new sports and go as far as their talent and ambitions take them.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I declare an interest as a driver of a fast car, but I suggest that the game is up as far as your Lordships are concerned. The truth of the matter is that statistic after statistic says clearly that women are better drivers than men. Indeed, four times as many reckless driving cases are brought to our courts in relation to men than in relation to women. Does my noble friend agree that the time is now ripe for us to return to the issue of insurance premiums and to stop women being discriminated against with regard to them, reflecting their better driving?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend’s point is a matter for colleagues in the Department for Transport, but I shall certainly pass it on. I agree with him. Motor sports are ones in which women and men can compete on equal terms; they have done in the past and we would like to see more of that in future. We welcome initiatives to ensure that all women get involved and able to do so.

[Baroness Deech (CB)]

My Lords, is the Minister confident that the category of women drivers will be confined to those who are born women?

[Lord Parkinson of Whitley Bay (Con)]

Transgender participation in sport has been looked at by the UK sports councils, which have produced well-researched and well-considered guidance. As the sports councils concluded in that guidance, balancing inclusion, safety and fairness at all times is not possible in every sport setting. When it comes to competitive sport, the Government believe that fairness has to be the primary consideration.

[Baroness Bray of Coln (Con)]

Can my noble friend assure me that the Government will do all that they can, in the light of the fact that women are increasingly successful in the world of racing, to encourage young girls to start practising their driving skills early on go-carts—or girl carts, as I am told they are now known?

[Lord Parkinson of Whitley Bay (Con)]

The age of Formula 1 drivers shows that this is a young sport, and the track record of those who have been successful in it shows that they start at a very young age. That is why we want to make sure that we break down all possible barriers to participation, one of which is visibility. It is why it is so important to have prominent competitions in which women and girls can participate and inspire others.

[Lord Dobbs (Con)]

Can I encourage my noble friend not to get too involved in trying to run Formula 1 but instead to concentrate on drivers in London—ordinary Londoners who want to drive their kids to school in the morning, who want to drive their teenage sons and daughters to sports fields in the evening and who perhaps want to drive their elderly parents to the doctor or a hospital—by knocking on the head the bonkers plan of the Mayor of London to penalise everybody who wants to drive on any street in London?

[Baroness Jones of Moulsecoomb (GP)]

Nonsense!

[Lord Parkinson of Whitley Bay (Con)]

My noble friend’s point will, I am sure, have been heard on the Benches opposite, and I am sure that they will pass on to the Mayor of London the strong views in this House and from drivers across the capital about his policies.

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

Lord Parkinson of Whitley Bay Excerpts

2nd reading
Friday 3rd February 2023 Lords Chamber

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

My Lords, I am very grateful to the noble Baroness, Lady Finlay of Llandaff, for bringing forward her Bill, and to all noble Lords who have taken part in our debate, most particularly the noble Baroness, Lady Smith of Newnham, whose powerful, brave and personal words moved us all but also underlined the importance for so many families of the topic we are discussing today. The Government fully understand just how devastating these harms are, both to children and to adults, and the effect that those harms have on their families and friends, as well as the role that social media platforms and search engines can play in exacerbating them.

As the noble Baroness, Lady Finlay, outlined, her Bill was due to be read a second time the day after the death of Her late Majesty the Queen. That very sad reason for delay has meant that we are able to look at it alongside the Online Safety Bill, now before your Lordships’ House, which is helpful. I will endeavour to explain why the Government think that Bill deals with many of the issues raised, while keeping an open mind, as I said at its Second Reading on Wednesday, on suggestions for how it could do so more effectively.

I will first address the scope and intentions of the Online Safety Bill, particularly how it protects adults and children from horrific content such as this. As I outlined in our debate on Wednesday, the Online Safety Bill offers adult users a triple shield of protection, striking a balance between forcing platforms to be transparent about their actions and empowering adult users with tools to manage their experience online.

The first part of the shield requires all companies in scope of the Bill to tackle criminal activity online when it is flagged to them. They will have duties proactively to tackle priority illegal content and will need to prevent their services being used to facilitate the priority offences listed in the Bill, which include encouraging or assisting suicide.

The second part of the shield requires the largest user-to-user platforms, category 1 services under the Bill, to ensure that any terms of service they set are properly enforced. For instance, if a major social media platform says in its terms of service that it does not allow harmful suicide content, it must adhere to that. I will address this in greater detail in a moment, but Ofcom will have the power to hold platforms to their terms and conditions, which will help to create a safer, more transparent environment for all.

The third part of the shield requires category 1 services to provide adults with tools either to reduce the likelihood of encountering certain categories of content, if they so choose, or to alert them to the nature of that content. That includes content that encourages, promotes or provides instruction for suicide, self-harm or eating disorders. People will also have the ability to filter out content from unverified accounts, if they wish. That will give them the power to address the concern raised by my noble friend Lord Balfe about anonymous accounts. If anonymous accounts are pushing illegal content, the police already have powers through the Investigatory Powers Act to access communications data to bring the people behind that to book.

Through our triple shield, adult users will be empowered to make more informed choices about the services they use and have greater control over whom and what they engage with online.

As noble Lords know, child safety is a crucial component of the Online Safety Bill, and protecting children from harm remains our priority. As well as protecting children from illegal material, such as intentional encouragement of or assistance in suicide, all in-scope services likely to be accessed by children will be required to assess the risks to children on their service, and to provide safety measures to protect them from age-inappropriate and harmful content. This includes content promoting suicide, eating disorders and self-harm that does not meet a criminal threshold, as well as harmful behaviour such as cyberbullying.

Providers will also be required to consider, as part of their risk assessments, how functions such as algorithms could affect children’s exposure to illegal and other harmful content on their service. They must take steps to mitigate and manage any risks. Finally, providers may need to use age-assurance measures to identify the age of their users, to meet the child safety duties and to enforce age restrictions on their service.

A number of noble Lords talked about algorithms, so I will say a little more about that, repeating what I outlined on Wednesday. Under the Online Safety Bill, companies will need to take steps to mitigate the harm associated with their algorithms. That includes ensuring that algorithms do not promote illegal content, ensuring that predictive searches do not drive children towards harmful content and signposting children who search for harmful content towards resources and support.

Ofcom will also be given a range of powers to help it assess whether companies are fulfilling their duties in relation to algorithms. It will have powers to require information from companies about the operation of their algorithms, to interview employees, to require regulated service providers to undergo a skilled persons report, and to require audits of companies’ systems and processes. It will also have the power to inspect premises and access data and equipment, so the Bill is indeed looking at the harmful effects of algorithms.

Moreover, I am pleased that many of the ambitions that lie behind the noble Baroness’s Bill will be achieved through a new communications offence that will capture the intentional encouragement and assistance of self-harm, as noble Lords have highlighted today. That new offence will apply to all victims, adults as well as children, and is an important step forward in tackling such abhorrent content. The Government are considering how that offence should be drafted. We are working with colleagues at the Ministry of Justice and taking into account views expressed by the Law Commission. As I said on Wednesday, our door remains open and I am keen to discuss this with noble Lords from all parties and none to ensure we get this right. We look forward to further conversations with noble Lords between now and Committee.

Finally, I want briefly to mention how in our view the aims of the noble Baroness’s Bill risk duplicating some of the work the Government are taking forward in these areas. The Bill proposes requiring Ofcom to establish a unit to advise the Secretary of State on the use of user-to-user platforms and search engines to encourage and assist serious self-harm and activities associated with the risk of suicide. The unit’s advice would focus on the extent of harmful content, the effectiveness of current regulation and potential changes in regulation to help prevent these harms. The noble Baroness is right to raise the issue, and I think her Bill is intended to complement the Online Safety Bill regime to ensure that it remains responsive to the way in which specific harms develop over time.

On Wednesday we heard from my noble friend Lord Sarfraz about some of the emerging threats, but I hope I have reassured the noble Baroness and other noble Lords that suicide and self-harm content will be robustly covered by the regime that the Online Safety Bill sets up. It is up to Ofcom to determine how best to employ its resources to combat these harms effectively and swiftly. For instance, under the Online Safety Bill, Ofcom is required to build and maintain an in-depth understanding of the risks posed by in-scope services, meaning that the regime the Bill brings forward will remain responsive to the ways in which harms manifest themselves both online and offline, such as in cases of cyberstalking or cyberbullying.

The Government believe that Ofcom as the regulator is best placed to hold providers accountable and to respond to any failings in adhering to their codes of practice. It has the expertise to regulate and enforce the Online Safety Bill’s provisions and to implement the findings of its own research. Its work as the regulator will also consider evidence from experts across the sector, such as Samaritans, which has rightly been named a number of times today and kindly wrote to me ahead of this debate and our debate on the Online Safety Bill. We therefore think that this work covers the same ground as the advisory function of the unit proposed in the noble Baroness’s Bill, and I hope this has reassured her that the area that she highlights through it is indeed being looked at in the Government’s Bill.

That is why the Government believe that the Online Safety Bill now before your Lordships’ House represents the strong action that we need to prevent the encouragement or assistance of self-harm, suicide and related acts online, and why we think it achieves the same objectives as the noble Baroness’s Bill. It is further strengthened, as I say, by the new stand-alone offence that we are bringing forward which addresses communications that intentionally encourage or assist self-harm, about which I am happy to speak to noble Lords.

I am glad we have had the opportunity today, between Second Reading and Committee of that Bill, to look at this issue in detail, and I know we will continue to do so, both inside and outside the Chamber. For the reasons I have given, though, we cannot support the noble Baroness’s Private Member’s Bill today.

CCTV

Lord Parkinson of Whitley Bay Excerpts

Thursday 2nd February 2023 Lords Chamber

[Lord Strathcarron]

To ask His Majesty’s Government what plans they have to commission an independent review of the (1) scale, (2) capabilities, (3) ethics, and (4) impact on rights, of CCTV in the United Kingdom.

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

My Lords, His Majesty’s Government have no plans to commission an independent review of the use of closed circuit television. The Government support the appropriate use of technologies such as CCTV to tackle crime and give the public greater confidence about using our public spaces, provided that its use is lawful, transparent and fair and in accordance with relevant guidelines.

[Lord Strathcarron (Con)]

I thank my noble friend the Minister for the reply. The noble Lord, Lord Alton of Liverpool, has already highlighted to the House the dangers posed by Chinese state-owned facial recognition companies Hikvision and Dahua. Is the Minister aware that this technology is now openly available on a far more intrusive smartphone level from other Chinese state-owned companies such as PimEyes? Is he also aware of the very real threats this will pose—and not just to politically exposed persons such as your Lordships? Absolutely anybody can be tracked and traced anywhere at any time. It is not hyperbolic to say that, if left unchecked, these applications will entirely alter our concept of privacy and be open sesame to snoopers, stalkers, blackmailers, cybercriminals and bad actors of every kind.

[Lord Parkinson of Whitley Bay (Con)]

All organisations in the UK that possess personal data have to comply with the requirements of our data protection legislation. The Information Commissioner’s Office is our independent regulator for data protection and is responsible for providing advice and guidance on compliance with the law. The ICO is currently considering whether PimEyes’ practices may raise data protection concerns. I hope that my noble friend will understand that it is not appropriate for me to comment on an ongoing ICO investigation.

[Baroness Chakrabarti (Lab)]

My Lords, does the Minister understand that these mostly Chinese smart cameras have the triple vices of being incredibly intrusive, incredibly unreliable and racially discriminatory? In the light of that, would he perhaps think again about the question from the noble Lord, Lord Strathcarron, and perhaps give a rather more urgent and pertinent response?

[Lord Parkinson of Whitley Bay (Con)]

It is an urgent matter and it is being looked at currently by the ICO. It would be wrong for me to comment on that ongoing investigation, but it is being dealt with swiftly. We are also taking urgent action across government, and my right honourable friend the Chancellor of the Duchy of Lancaster set out in a Statement on 24 November the action that we are taking with relation to Chinese equipment in public sites.

[Lord German (LD)]

My Lords, the Surveillance Camera Commissioner recently reported on a survey of police forces in England and Wales. Despite the commissioner’s strong belief that surveillance technology had to be used in a way that maintains the trust and confidence of our communities, the commissioner found that there is no universal approach to due diligence across the police forces of this country. Does the Minister agree that a universal approach is necessary and sensible? If so, how will the Government achieve it?

[Lord Parkinson of Whitley Bay (Con)]

All police forces are compelled to follow data protection legislation, which is regulated by the Information Commissioner’s Office. They must also comply with human rights and equalities legislation, which is regulated by the Equality and Human Rights Commission. So there is a universal application of those across all forces.

[The Lord Bishop of Manchester]

My Lords, I declare my interest as chair of the Greater Manchester Police independent ethics committee. Can the Minister tell us what the Government’s assessment is of the use of CCTV in conjunction with live facial recognition technology by police across the UK, and what legal safeguards are in place to ensure that fundamental rights are upheld?

[Lord Parkinson of Whitley Bay (Con)]

Polls show that there is public support and, indeed, an expectation on the police to use technology such as this, particularly from victims and their families, to prevent, detect and investigate crime. There is a comprehensive legal framework covering its use. The noble Baroness, Lady Chakrabarti, mentioned the potential for bias against people from ethnic minority backgrounds. When using it, police must comply with the public sector equality duty, and a human operator is also important in this regard.

[Lord Reid of Cardowan (Lab)]

My Lords, can I first confess that I encouraged the spread of CCTV, because I knew of the demand that comes from potential victims? However, that was before smart CCTV and facial recognition. As the right reverend Prelate said, they introduce a major new dimension of potential intrusion into privacy. I accept that the ICO is reviewing this, but I remind the Minister that ultimately this will be a political decision, taken in the context of the extensive surveillance by the Chinese Government of their own and other people. Will he give it the utmost priority when the ICO has reported?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is right to point to the importance of CCTV in the detection and prosecution of crime. Of course, as technology improves, so does the reliability and its use in criminal investigations—but so do the risks. That is why the Information Commissioner’s Office plays its important role in monitoring it. We will continue to evaluate the continued use of technologies such as live facial recognition and consider the need for further guidance, should that be needed.

[Lord Bellingham (Con)]

Could my noble friend the Minister expound further on that last reply and tell the House how many very serious crimes last year, including murder and GBH, were solved as a result of CCTV?

[Lord Parkinson of Whitley Bay (Con)]

I do not have those figures to hand, but I imagine that they are substantial, and I shall find out and write to the noble Lord.

[Lord Bassam of Brighton (Lab)]

My Lords, there is an opportunity here for the Government to get something right. The Product Security and Telecommunications Infrastructure Bill received Royal Assent, as the Minister knows, in early December. Its security provisions are designed to improve the security of smart products—a category that includes CCTV doorbells. Is the Minister able to provide some updates on commencement of Part 1 of the Act, or on the laying of relevant regulations and guidance, given that this will be the subject of some intense debate—and given, too, the potential privacy issues that will arise if security vulnerabilities in personal CCTV products can be exploited, as we now know, by bad actors?

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I cannot provide an update on dates by which those things will be commenced, but the noble Lord is right to point to the legislation that we have taken through, which grapples with this important topic, the scrutiny given in Parliament and the change that it will make to the regulation of these sensitive technologies.

[Lord Watson of Wyre Forest (Lab)]

My Lords, is it an appropriate use of CCTV facial recognition technology to identify children entitled to free school meals in our schools?

[Lord Parkinson of Whitley Bay (Con)]

I not aware that that is being done, but that is a matter for the Department for Education. I will refer the noble Lord’s point to the department.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, just to clarify the answers to some of the questions, I think all of us can understand that using CCTV to catch criminals and help victims is something that has become the norm. But the Minister has been asked whether the new technology changes things. Secondly, is there not a danger of a creep towards the surveillance of innocent people, which would not be something that the Government would endorse or condone?

[Lord Parkinson of Whitley Bay (Con)]

There is a hugely important role for CCTV in providing assurance for people that our streets are safe, that our public spaces are being monitored and that, if crimes are committed, the people who commit them will be captured and brought to justice. That is a great reassurance to people as they go about their lawful business.

[Lord Hogan-Howe (CB)]

My Lords, I agree with what the noble Lord, Lord Reid, said and what the original questioner said, which is that this is probably not a bad time to think seriously about the application of facial recognition with CCTV. Does the Minister agree that it is not only about crime? It is also an opportunity to find missing people and sometimes, on places such as the Tube and in other places, people who have fallen ill. CCTV has many benefits, but I agree that it needs proper control and accountability.

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord is right and highlights another important potential use of this technology. It is right that it is monitored. The ICO has published an opinion on the use of live facial recognition by law enforcement agencies, as well as guidance on the processing of biometric data. We will continue to evaluate that and continue to consider whether further guidance is needed.

[Lord Harris of Haringey (Lab)]

My Lords, could the Minister just confirm that he saying—I think he is, but it would be helpful if it was clear—that he and the Government accept the huge value for public protection and public safety of the ability of law enforcement to use CCTV and facial recognition techniques? Does he also recognise that the fact that this technology is now out there and is increasingly used by non-law enforcement agencies, by the private sector in all sorts of spaces, is an area that requires at least equivalent, if not stronger, supervision and monitoring?

[Lord Parkinson of Whitley Bay (Con)]

The noble Lord makes an important point. I think people would find it very disappointing if commercial organisations were able to use the technology in a way that the police and law enforcement agencies could not, to bring people to justice. We do support its use, but only with careful monitoring. The ICO has an important role to play in that.

Broadcasting: Children’s Television

Lord Parkinson of Whitley Bay Excerpts

Thursday 2nd February 2023 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as per the register.

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

My Lords, the Government recognise the unique social, educational and economic importance of children’s television, and that is why we have put in place a range of measures to support it. The ongoing animation and children’s tax relief schemes have supported the production of over 840 programmes. Working with the noble Baroness, we introduced powers for Ofcom to monitor and set criteria for the provision of children’s television. Children’s television was chosen to pilot contestable funding, which has supported more than 280 hours of new content.

[Baroness Benjamin (LD)]

I thank the Minister for his Answer. However, since the early closure of the Young Audiences Content Fund, which offered up to 50% of programme budgets, the amount of newly made UK commercial children’s content continues to decrease. The children’s television production sector faces market failure and a huge challenge. Without funding, television programmes that reflect British children’s lives could disappear from the nation’s screens, and that would be a tragedy. Pact is proposing new tax breaks of 40% to help keep that vitally important sector thriving. So how are the Government living up to their responsibility to ensure that the nation’s children are accessing high-quality British children’s programming? Will the tax breaks proposed by Pact be supported to ensure that we have more UK commercial public service broadcasting of children’s content?

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

The Young Audiences Content Fund was always designed as a three-year pilot. Now that it is over, it is right that we assess the contestable funding model as a whole to understand how it can be used to help. Any further investment of public funding will need to be considered against that and future broadcasting needs, but we are supporting children’s television to ensure that future generations can benefit from it just as much as past ones have.

[Baroness Featherstone (LD)]

My Lords, what steps are the Government taking to ensure that the children’s television production sector is internationally competitive?

[Lord Parkinson of Whitley Bay (Con)]

With our wider support for the broadcasting system set out in the White Paper, we are ensuring that all our public service broadcasters can compete with the new streaming platforms we see entering the market. The media Bill will deliver on some of the proposals put forward in the White Paper.

[Lord Blunkett (Lab)]

My Lords, perhaps the Minister could reflect on the fact that television companies are always bemoaning losing young people from their audience. Would it not be sensible to invest in children’s television at the moment when young people are prepared to engage with their families by sitting on the settee, rather than looking at their devices and losing their sight in later life?

[Lord Parkinson of Whitley Bay (Con)]

We have indeed been investing: the Young Audiences Content Fund invested a total of £40.5 million directly into brand new children’s television content for exactly the sorts of reasons the noble Lord outlined.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, the noble Baroness, Lady Benjamin, rightly pointed out the danger now of the huge oversupply of content—including perfectly reasonable content—from elsewhere, mainly America, particularly for young children. Can the Minister address what that is doing to the skill base in this country? There are lots of people who have, and need, very particular skills to create content for young children, and they must be feeling pretty dismal at the moment. Does the Minister agree?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right, and the Government are clear that we want to see distinctively British content, so that young people growing up in this country can see it on television and on their tablets, or however they view it. Through our creative industries sector vision, the department is working to address skills gaps right across the creative industries in order to ensure that we can continue to make world-leading content.

[Lord Bassam of Brighton (Lab)]

My Lords, we of course echo the concerns raised by the noble Baroness, Lady Benjamin. Public service broadcasting faces a number of challenges, including uncertainty over the status of the long-awaited media Bill, which was parked while the Government considered whether to U-turn on privatising Channel 4. Now that decision has been made, can the Minister confirm when noble Lords can expect some breaking news? If not, can he at least say whether the Leader of the House was correct when he stated on 12 January that this crucial legislation will be published only in draft form?

[Lord Parkinson of Whitley Bay (Con)]

The media Bill will reform decades-old law to boost the growth potential of our world-leading public service broadcasters, replacing the outdated set of 14 overlapping purposes and objectives. We have set out those reforms in our White Paper and the Government will legislate when parliamentary time allows.

[Lord Kamall (Con)]

My Lords, as my noble friend knows, a number of commercial children’s channels are already available. What concerns does his department have about those, and what criteria are they not meeting that it believes public service broadcasters would meet?

[Lord Parkinson of Whitley Bay (Con)]

Commercial broadcasters do indeed provide excellent content, but public service broadcasters play a unique role in ensuring that underserved groups are catered for. There is not always the same commercial potential in children’s television programming, which is why it is right that we have particular areas of work to focus on that.

[Lord Leong (Lab)]

My Lords, as we all know, BBC World News is banned in China. Are there plans to ban Chinese news channels and propaganda channels in the United Kingdom?

[Lord Parkinson of Whitley Bay (Con)]

Sanctions, of course, are always kept under review, but by their nature, the Government cannot discuss them until they are made.

Broadband: Price

Lord Parkinson of Whitley Bay Excerpts

Thursday 2nd February 2023 Lords Chamber

[Lord Sikka]

To ask His Majesty’s Government what plans they have, if any, to prevent internet providers from increasing the price of broadband connections by up to 3.9 per cent above the Consumer Price Index measure of inflation.

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

My Lords, this is clearly a difficult time for households across the country that are struggling to pay their bills as a result of the global rise in the cost of living. While operators are continuing to invest in gigabit-capable services, the UK benefits from some of the cheapest retail pricing of broadband in Europe, with only around 4% of a typical household’s monthly budget going on telecommunications services. However, we understand the challenges many families are facing at the moment, so we are calling on operators to consider carefully the need for above-inflation price increases and the impact they may have on people across the country.

[Lord Sikka (Lab)]

My Lords, there is absolutely no justification for the inflation-busting 14% price rise for broadband. BT, EE, PlusNet, Shell Energy, TalkTalk and Vodafone are acting in unison; they have trapped millions of people into 18- to 24-month contracts and are forcing them to pay 14% more, mid-term. Those wanting to leave are being forced to pay a £200 exit fee. I ask the Minister, first, to ban mid-term contract price hikes and, secondly, to change the law so that customers can exit free from any broadband contract longer than 12 months.

[Lord Parkinson of Whitley Bay (Con)]

The Government believe it is important that consumers are fully aware of the clauses in their contracts so that they are empowered to make informed decisions, but we also are mindful of the impact on families at this time. That is why my right honourable friend the Secretary of State earlier this month met chief executives from major broadband and mobile providers and asked them to consider very carefully the need to make above-inflation price increases at this moment. Households struggling to afford telecoms services should speak to their provider. Social tariffs are available, as we heard in a Question earlier this week, but also, since last July, providers have committed to support any customers struggling to pay their bills.

[Baroness McIntosh of Pickering (Con)]

My Lords, is this not an opportunity for the Government, in rolling out their digital programme, to ensure that this area is properly regulated? Could Ofcom not play a crucial role here? All of us are bound by our contracts, as my noble friend the Minister rightly pointed out, which in most cases are locked in for 24 months, and we are going to face an average 11% increase. For vulnerable households, this is just too much.

[Lord Parkinson of Whitley Bay (Con)]

Ofcom does have an important role to play here as the independent regulator, but, as I say, mindful of the particular challenges that households are facing, my right honourable friend the Secretary of State spoke directly to companies, asking them to consider very carefully the decisions they are making and the impact on their customers.

[Lord Allan of Hallam (LD)]

My Lords, was the Minister struck, as I was, by the observation in Ofcom’s December pricing trends report that there are millions of consumers who are out of contract, and so free to switch, but have not yet done so? Does he agree that these people could make significant savings, often without having to switch at all, as many providers will drop their prices as soon as you ring and threaten to leave? What are the Government doing to make this group aware that they can do this?

[Lord Parkinson of Whitley Bay (Con)]

Yes, it is very striking. Many people could be saving money and are not aware of it. That is why it is important that contracts are clear, but it also highlights the importance of consumer advice groups and, indeed, debates such as this, to draw the attention of people to the contracts they have signed.

[Lord Browne of Ladyton (Lab)]

My Lords, of course everybody should read the contracts they sign, but has the Minister read his broadband provider’s contract? These contracts are impossible to understand. They have subcontracts and other regulations—there is no possibility that people will understand the contracts that they have to sign if they want broadband. What my noble friend describes is anti-competitive, inflationary and likely to drive down digital inclusion. This is a matter for the Competition and Markets Authority. The Minister should think about referring this to the Competition and Markets Authority for profiteering and setting up a cartel.

[Lord Parkinson of Whitley Bay (Con)]

At the risk of sounding like a geek, I have read my contract. I did so because some operators permit their customers to exit their contracts penalty-free when there is a price rise. Mine did; I looked at it, I shopped around and I saved some money. People would be well advised to do the same, but it is important that the industry tells people about the decisions it makes. That is why the Secretary of State brought chief executives in and asked them to consider carefully the impact of the decisions they make and how they communicate them.

[Lord Forsyth of Drumlean (Con)]

Has my noble friend, as well as having the experience of reading a contract, had the experience of trying to communicate with these providers? You sit on the phone for hours and hours and then get passed from pillar to post. Can we do something to make sure that their customer relations are rather more efficient?

[Lord Parkinson of Whitley Bay (Con)]

On that, my experience was indeed a bit more painful. It is obviously for commercial providers to decide how they provide services to their customers in a way that allows them to keep costs down and keep bills down while satisfying people so that they want to stay with them.

[Lord Woodley (Lab)]

My Lords, there is a pattern here. The Government are keeping down wages for our heroes in the public sector, such as teachers, nurses and firefighters, but at the same time, they are doing nothing to curb the profiteering by energy, broadband and other companies, even though, as my noble friend just said, this is inflationary. Can the Minister explain the double standards that they are operating?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the action we are taking is to beat the evil of inflation, which is what lies behind these price rises. At the same time, we have acted quickly to support families, through such things as the energy price guarantee and the energy bills support scheme, as well as further help for the most vulnerable households of up to £200.

[Baroness Altmann (Con)]

My Lords, will the Minister comment on the problems faced by vulnerable older people who might just have started trying to get tech-enabled and just signed up for a broadband contract? They do not understand how these things work, then are suddenly faced with a penalty if they try to change to a better rate and are locked into a contract that was never properly explained to them.

[Lord Parkinson of Whitley Bay (Con)]

In July last year, the previous Secretary of State also spoke to mobile and broadband suppliers and secured a list of commitments from them, including a commitment to support their customers who may be struggling with the cost of living and to treat them with compassion and understanding. All providers committed to support customers who are struggling with their bills, offering them ways to keep connected, including allowing them to move to cheaper packages without charge or penalty, or agreeing manageable payment plans.

[Lord Butler of Brockwell (CB)]

To revert to a question asked previously by a noble Lord, is this not a matter that should be referred to the Competition and Markets Authority?

[Lord Parkinson of Whitley Bay (Con)]

At the moment we are pleased to have seen the commitments made by the companies following their meetings with the Secretary of State and her predecessor. We will keep it under review.

[Baroness Merron (Lab)]

My Lords, earlier this week your Lordships’ House discussed the Government’s efforts to ensure that eligible households are aware of social tariffs for broadband, which the Minister referred to. I asked the Minister whether the Government would contact benefit claimants directly, given that their data is available to the Government, and in response the Minister cited a more general information campaign of adverts and leaflets. I ask the Minister today whether consideration has been given to contacting claimants directly so that households know that these special tariffs are ones for which they are eligible?

[Lord Parkinson of Whitley Bay (Con)]

We are advertising the support which is available generally. The social tariffs are available to people who are in receipt of universal credit and other means-tested benefits, but there is help for anyone who may be struggling to pay their bills, thanks to the commitments we secured from the industry last July. That is why we are advertising all of the help generally, through the Help for Households campaign, but of course that is being monitored for its success in getting the message out, and all ideas are welcome.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, BT businesses are operated under a special government regulation through Ofcom. In view of the fact that throughout rural areas in the UK, BT Openreach is providing broadband connections at highly difficult and challenging costs for many consumers, will the Minister, as a result of today’s questions, talk directly to BT Openreach about reducing its costs and ensuring that infrastructure issues are better dealt with, including wayleave permissions, because many people in rural communities cannot access the broadband they require to undertake their work?

[Lord Parkinson of Whitley Bay (Con)]

As the noble Baroness notes, Openreach’s prices are fixed by Ofcom as part of its five-year wholesale fixed telecoms market review and have been allowed to increase by CPI to reflect the significant additional costs faced when deploying new infrastructure. Our £5 billion Project Gigabit programme is delivering lightning fast and reliable broadband to hard-to-reach areas right across the UK, as the noble Baroness says. That funding is available to a range of suppliers; where infrastructure is built using public subsidy, suppliers must make their networks available for use by other operators so that everybody can benefit.

Online Safety Bill

Lord Parkinson of Whitley Bay Excerpts

2nd reading
Wednesday 1st February 2023 Lords Chamber

Moved by

[Lord Parkinson of Whitley Bay]

That the Bill be now read a second time.

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

My Lords, I am very glad to be here to move the Second Reading of the Online Safety Bill. I know that this is a moment which has been long awaited in your Lordships’ House and noble Lords from across the House share the Government’s determination to make the online realm safer.

That is what this Bill seeks to do. As it stands, over three quarters of adults in this country express a concern about going online; similarly, the number of parents who feel the benefits outweigh the risks of their children being online has decreased rather than increased in recent years, falling from two-thirds in 2015 to barely over half in 2019. This is a terrible indictment of a means through which people of all ages are living increasing proportions of their lives, and it must change.

All of us have heard the horrific stories of children who have been exposed to dangerous and deeply harmful content online, and the tragic consequences of such experiences both for them and their families. I am very grateful to the noble Baroness, Lady Kidron, who arranged for a number of noble Lords, including me, to see some of the material which was pushed relentlessly at Molly Russell whose family have campaigned bravely and tirelessly to ensure that what happened to their daughter cannot happen to other young people. It is with that in mind, at the very outset of our scrutiny of this Bill, that I would like to express my gratitude to all those families who continue to fight for change and a safer, healthier online realm. Their work has been central to the development of this Bill. I am confident that, through it, the Government’s manifesto commitment to make the UK the safest place in the world to be online will be delivered.

This legislation establishes a regulatory regime which has safety at its heart. It is intended to change the mindset of technology companies so that they are forced to consider safety and risk mitigation when they begin to design their products, rather than as an afterthought.

All companies in scope will be required to tackle criminal content and activity online. If it is illegal offline; it is illegal online. All in-scope platforms and search services will need to consider in risk assessments the likelihood of illegal content or activity taking place on their site and put in place proportionate systems and processes to mitigate those risks. Companies will also have to take proactive measures against priority offences. This means platforms will be required to take proportionate steps to prevent people from encountering such content.

Not only that, but platforms will also need to mitigate the risk of the platform being used to facilitate or commit such an offence. Priority offences include, inter alia: terrorist material, child sexual abuse and exploitation, so-called revenge pornography and material encouraging or assisting suicide. In practice, this means that all in-scope platforms will have to remove this material quickly and will not be allowed to promote it in their algorithms.

Furthermore, for non-priority illegal content, platforms must have effective systems in place for its swift removal once this content has been flagged to them. Gone will be the days of lengthy and arduous complaints processes and platforms feigning ignorance of such content. They can and will be held to account.

As I have previously mentioned, the safety of children is of paramount importance in this Bill. While all users will be protected from illegal material, some types of legal content and activity are not suitable for children and can have a deeply damaging impact on their mental health and their developing sense of the world around them.

All in-scope services which are likely to be accessed by children will therefore be required to assess the risks to children on their service and put in place safety measures to protect child users from harmful and age inappropriate content. This includes content such as that promoting suicide, self-harm or eating disorders which does not meet a criminal threshold; pornography; and damaging behaviour such as bullying.

The Bill will require providers specifically to consider a number of risk factors as part of their risk assessments. These factors include how functionalities such as algorithms could affect children’s exposure to content harmful to children on their service, as well as children’s use of higher risk features on the service such as livestreaming or private messaging. Providers will need to take robust steps to mitigate and effectively manage any risks identified.

Companies will need to use measures such as age verification to prevent children from accessing content which poses the highest risk of harm to them, such as online pornography. Ofcom will be able to set out its expectations about the use of age assurance solutions, including age verification tools, through guidance. This guidance will also be able to refer to relevant standards. The Bill also now makes it clear that providers may need to use age assurance to identify the age of their users to meet the necessary child safety duties and effectively enforce age restrictions on their service.

The Government will set out in secondary legislation the priority categories of content harmful to children so that all companies are clear on what they need to protect children from. Our intention is to have the regime in place as soon as possible after Royal Assent, while ensuring the necessary preparations are completed effectively and service providers understand clearly what is expected. We are working closely with Ofcom and I will keep noble Lords appraised.

My ministerial colleagues in another place worked hard to strengthen these provisions and made commitments to introduce further provisions in your Lordships’ House. With regard to increased protections for children specifically, the Government will bring forward amendments at Committee stage to name the Children’s Commissioner for England as a statutory consultee for Ofcom when it is preparing a code of practice, ensuring that the experience of children and young people is accounted for during implementation.

We will also bring forward amendments to specify that category 1 companies—the largest and most risky platforms—will be required to publish a summary of their risk assessments for both illegal content and material that is harmful to children. This will increase transparency about illegal and harmful content on in-scope services and ensure that Ofcom can do its job regulating effectively.

We recognise the great suffering experienced by many families linked to children’s exposure to harmful content and the importance of this Bill in ending that. We must learn from the horrific events from the past to secure a safe future for children online.

We also understand that, unfortunately, people of any age may experience online abuse. For many adults, the internet is a positive source of entertainment and information and a way to connect with others; for some, however, it can be an arena for awful abuse. The Bill will therefore offer adult users a triple shield of protection when online, striking the right balance between protecting the right of adult users to access legal content freely, and empowering adults with the information and tools to manage their own online experience.

First, as I have outlined, all social media firms and search services will need to tackle illegal content and activity on their sites. Secondly, the Bill will require category 1 services to set clear terms of service regarding the user-generated content they prohibit and/or restrict access to, and to enforce those terms of service effectively. All the major social media platforms such as Meta, Twitter and TikTok say that they ban abuse and harassment online. They all say they ban the promotion of violence and violent threats, yet this content is still easily visible on those sites. People sign up to these platforms expecting one environment, and are presented with something completely different. This must stop.

As well as ensuring the platforms have proper systems to remove banned content, the Bill will also put an end to services arbitrarily removing legal content. The largest platform category 1 services must ensure that they remove or restrict access to content or ban or suspend users only where that is expressly allowed in their terms of service, or where they otherwise have a legal obligation to do so.

This Bill will make sure that adults have the information they need to make informed decisions about the sites they visit, and that platforms are held to their promises to users. Ofcom will have the power to hold platforms to their terms of service, creating a safer and more transparent environment for all.

Thirdly, category 1 services will have a duty to provide adults with tools they can use to reduce the likelihood that they encounter certain categories of content, if they so choose, or to alert them to the nature of that content. This includes content which encourages, promotes, or provides instructions for suicide, self-harm or eating disorders. People will also have the ability to filter out content from unverified users if they so wish. This Bill will mean that adult users will be empowered to make more informed choices about what services they use, and to have greater control over whom and what they engage with online.

It is impossible to speak about the aspects of the Bill which protect adults without, of course, mentioning freedom of expression. The Bill needs to strike a careful balance between protecting users online, while maintaining adults’ ability to have robust—even uncomfortable or unpleasant—conversations within the law if they so choose. Freedom of expression within the law is fundamental to our democracy, and it would not be right for the Government to interfere with what legal speech is permitted on private platforms. Instead, we have developed an approach based on choice and transparency for adult users, bounded by major platforms’ clear commercial incentives to provide a positive experience for their users.

Of course, we cannot have robust debate without being accurately informed of the current global and national landscape. That is why the Bill includes particular protections for recognised news publishers, content of democratic importance, and journalistic content. We have been clear that sanctioned news outlets such as RT, formerly Russia Today, must not benefit from these protections. We will therefore bring forward an amendment in your Lordships’ House explicitly to exclude entities subject to sanctions from the definition of a recognised news publisher.

Alongside the safety duties for children and the empowerment tools for adults, platforms must also have effective reporting and redress mechanisms in place. They will need to provide accessible and effective mechanisms for users to report content which is illegal or harmful, or where it breaches terms and conditions. Users will need to be given access to effective mechanisms to complain if content is removed without good reason.

The Bill will place a duty on platforms to ensure that those reporting mechanisms are backed up by timely and appropriate redress mechanisms. Currently, internet users often do not bother to report harmful content they encounter online, because they do not feel that their reports will be followed up. That too must change. If content has been unfairly removed, it should be reinstated. If content should not have been on the site in question, it should be taken down. If a complaint is not upheld, the reasons should be made clear to the person who made the report.

There have been calls—including from the noble Lord, Lord Stevenson of Balmacara, with whom I look forward to working constructively, as we have done heretofore—to use the Bill to create an online safety ombudsman. We will listen to all suggestions put forward to improve the Bill and the regime it ushers in with an open mind, but as he knows from our discussions, of this suggestion we are presently unconvinced. Ombudsman services in other sectors are expensive, often underused and primarily relate to complaints which result in financial compensation. We find it difficult to envisage how an ombudsman service could function in this area, where user complaints are likely to be complex and, in many cases, do not have the impetus of financial compensation behind them. Instead, the Bill ensures that, where providers’ user-reporting and redress mechanisms are not sufficient, Ofcom will have the power to take enforcement action and require the provider to improve its user-redress provisions to meet the standard required of them. I look forward to probing elements of the Bill such as this in Committee.

This regulatory framework could not be effective if Ofcom, as the independent regulator, did not have a robust suite of powers to take enforcement actions against companies which do not comply with their new duties, and if it failed to take the appropriate steps to protect people from harm. I believe the chairman of Ofcom, the noble Lord, Lord Grade of Yarmouth, is in his place. I am glad that he has been and will be following our debates on this important matter.

Through the Bill, Ofcom will have wide-ranging information-gathering powers to request any information from companies which is relevant to its safety functions. Where necessary, it will be able to ask a suitably skilled person to undertake a report on a company’s activity—for example, on its use of algorithms. If Ofcom decides to take enforcement action, it can require companies to take specific steps to come back into compliance.

Ofcom will also have the power to impose substantial fines of up to £18 million, or 10% of annual qualifying worldwide revenue, whichever is higher. For the biggest technology companies, this could easily amount to billions of pounds. These are significant measures, and we have heard directly from companies that are already changing their safety procedures to ensure they comply with these regulations.

If fines are not sufficient, or not deemed appropriate because of the severity of the breach, Ofcom will be able to apply for a court order allowing it to undertake business disruption measures. This could be blocking access to a website or preventing it making money via payment or advertising services. Of course, Ofcom will be able to take enforcement action against any company that provides services to people in the UK, wherever that company is located. This is important, given the global nature of the internet.

As the Bill stands, individual senior managers can be held criminally liable and face a fine for failing to ensure their platform complies with Ofcom’s information notice. Further, individual senior managers can face jail, a fine or both for failing to prevent the platform committing the offences of providing false information, encrypting information or destroying information in response to an information notice.

The Government have also listened to and acknowledged the need for senior managers to be made personally liable for a wider range of failures of compliance. We have therefore committed to tabling an amendment in your Lordships’ House which will be carefully designed to capture instances where senior managers have consented to or connived in ignoring enforceable requirements, risking serious harm to children. We are carefully designing this amendment to ensure that it can hold senior managers to account for their actions regarding the safety of children, without jeopardising the UK’s attractiveness as a place for technology companies to invest in and grow. We intend to base our offence on similar legislation recently passed in the Republic of Ireland, as well as looking carefully at relevant precedent in other sectors in the United Kingdom.

I have discussed the safety of children, adults, and everyone’s right to free speech. It is not possible to talk about this Bill without also discussing its protections for women and girls, who we know are disproportionately affected by online abuse. As I mentioned, all services in scope will need to seek out and remove priority illegal content proactively. There are a number of offences which disproportionately affect women and girls, such as revenge pornography and cyberstalking, which the Bill requires companies to tackle as a priority.

To strengthen protections for women in particular, we will be listing controlling or coercive behaviour as a priority offence. Companies will have to take proactive measures to tackle this type of illegal content. We will also bring forward an amendment to name the Victims’ Commissioner and the domestic abuse commissioner as statutory consultees for the codes of practice. This means there will be a requirement for Ofcom to consult both commissioners ahead of drafting and amending the codes of practice, ensuring that victims, particularly victims and survivors of domestic abuse, are better protected. The Secretary of State and our colleagues have been clear that women’s and girls’ voices must be heard clearly in developing this legislation.

I also want to take this opportunity to acknowledge the concerns voiced over the powers for the Secretary of State regarding direction in relation to codes of practice that currently appear in the Bill. That is a matter on which my honourable friend Paul Scully and I were pressed by your Lordships’ Communications and Digital Committee when we appeared before it last week. As we explained then, we remain committed to ensuring that Ofcom maintains its regulatory independence, which is vital to the success of this framework. As we are introducing ground-breaking regulation, our aim is to balance the need for the regulator’s independence with appropriate oversight by Parliament and the elected Government.

We intend to bring forward two changes to the existing power: first, replacing the “public policy” wording with a defined list of reasons that a direction can be made; and secondly, making it clear that this element of the power can only be used in exceptional circumstances. I would like to reassure noble Lords—as I sought to reassure the Select Committee—that the framework ensures that Parliament will always have the final say on codes of practice, and that strong safeguards are in place to ensure that the use of this power is transparent and proportionate.

Before we begin our scrutiny in earnest, it is also necessary to recognise that this Bill is not just establishing a regulatory framework. It also updates the criminal law concerning communication offences. I want to thank the Law Commission for its important work in helping to strengthen criminal law for victims. The inclusion of the new offences for false and threatening communications offers further necessary protections for those who need it most. In addition, the Bill includes new offences to criminalise cyberflashing and epilepsy trolling. We firmly believe that these new offences will make a substantive difference to the victims of such behaviour. The Government have also committed to adding an additional offence to address the encouragement or assistance of self-harm communications and offences addressing intimate image abuse online, including deep- fake pornography. Once these offences are introduced, all companies will need to treat this content as illegal under the framework and take action to prevent users from encountering it. These new offences will apply in respect of all victims of such activity, children as well as adults.

This Bill has been years in the making. I am proud to be standing here today as the debate begins in your Lordships’ House. I realise that noble Lords have been waiting long and patiently for this moment, but I know that they also appreciate that considerable work has already been done to ensure that this Bill is proportionate and fair, and that it provides the change that is needed.

A key part of that work was conducted by the Joint Committee, which conducted pre-legislative scrutiny of the Bill, drawing on expertise from across both Houses of Parliament, from all parties and none. I am very glad that all the Members of your Lordships’ House who served on that committee are speaking in today’s debate: the noble Baroness, Lady Kidron; the noble Lords, Lord Stevenson of Balmacara and Lord Knight of Weymouth, who have very helpfully been called to service on the Opposition Front Bench; the noble Lord, Lord Clement-Jones, who speaks for the Liberal Democrats; as well as my noble friends Lord Black of Brentwood and Lord Gilbert of Panteg.

While I look forward to the contributions of all Members of your Lordships’ House, and will continue the open-minded, collaborative approach established by my right honourable friend the Secretary of State and her predecessors—listening to all ideas which are advanced to make this Bill as effective as it can be—I urge noble Lords who are not yet so well-versed in its many clauses and provisions, or who might be disinclined to accept at first utterance the points I make from this Dispatch Box, to consult those noble Lords before bringing forward their amendments in later stages of the Bill. I say that not to discourage noble Lords from doing so, but in the spirit of ensuring that what they do bring forward, and our deliberations on them, will be pithy, focused, and conducive to making this Bill law as swiftly as possible. In that spirit, I shall draw my already too lengthy remarks to a close. I beg to move.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the very many noble Lords who have spoken this afternoon and this evening. They have spoken with passion—we heard that in the voices of so many—about their own experiences, the experiences of their families and the experiences of far too many of our fellow subjects, who have harrowing examples of the need for this Bill. But noble Lords have also spoken with cool-headed precision and forensic care about the aspects of the Bill that demand our careful scrutiny. Both hearts and heads are needed to make this Bill worth the wait.

I am very grateful for the strong consensus that has come through in noble Lords’ speeches on the need to make this Bill law and to do so quickly, and therefore to do our work of scrutiny diligently and speedily. I am grateful for the very generous and public-spirited offer the noble Lord, Lord Stevenson, has just issued. I, too, would like to make this not a party-political matter; it is not and has not been in the speeches we have heard today. The work of your Lordships’ House is to consider these matters in detail and without party politics intruding, and it would be very good if we could proceed on the basis of collaboration, co-operation and, on occasion, compromise.

In that spirit, I should say at the outset that I share the challenge faced by the noble Lords, Lord Clement-Jones and Lord Stevenson. Given that so many speakers have chosen to contribute, I will not be able to cover or acknowledge everyone who has spoken. I shall undoubtedly have to write on many of the issues to provide the technical detail that the matters they have raised deserve. It is my intention to write to noble Lords and invite them to join a series of meetings to look in depth at some of the themes and areas between now and Committee, so that as a group we can have well-informed discussions in Committee. I shall write with details suggesting some of those themes, and if noble Lords feel that I have missed any, or particular areas they would like to continue to talk about, please let me know and I will be happy to facilitate those.

I want to touch on a few of the issues raised today. I shall not repeat some of the points I made in my opening speech, given the hour. Many noble Lords raised the very troubling issue of children accessing pornography online, and I want to talk about that initially. The Government share the concerns raised about the lack of protections for children from this harmful and deeply unsuitable content. That is why the Bill introduces world-leading protections for children from online pornography. The Bill will cover all online sites offering pornography, including commercial pornography sites, social media, video-sharing platforms and fora, as well as search engines, which play a significant role in enabling children to access harmful and age-inappropriate content online. These companies will have to prevent children accessing pornography or face huge fines. To ensure that children are protected from this content, companies will need to put in place measures such as age verification, or demonstrate that the approach they are taking delivers the same level of protection for children.

While the Bill does not mandate that companies use specific technologies to comply with these new duties, in order to ensure that the Bill is properly future-proofed, we expect Ofcom to take a robust approach to sites which pose the highest risk of harm to children, including sites hosting online pornography. That may include directing the use of age verification technologies. Age verification is also referred to in the Bill. This is to make clear that these are measures that the Government expect to be used for complying with the duties under Part 3 and Part 5 to protect children from online pornography. Our intention is to have the regime operational as soon as possible after Royal Assent, while ensuring that the necessary preparations are completed effectively and that service providers understand what is expected of them. We are working very closely with Ofcom to ensure this.

The noble Lord, Lord Morrow, and others asked about putting age verification in the Bill more clearly, as was the case with the Digital Economy Act. The Online Safety Bill includes references to age assurance and age verification in the way I have just set out. That is to make clear that these are measures which the Government expect to be used for complying with the duties where proportionate to do so. While age assurance and age verification are referred to in the Bill, the Government do not mandate the use of specific approaches or technologies. That is similar to the approach taken in the Digital Economy Act, which did not mandate the use of a particular technology either.

I think my noble friend Lord Bethell prefers the definition of pornography in Part 3 of the Digital Economy Act. There is already a robust definition of “pornographic content” in this Bill which is more straightforward for providers and Ofcom to apply. That is important. The definition we have used is similar to the definition of pornographic content used in existing legislation such as the Coroners and Justice Act 2009. It is also in line with the approach being taken by Ofcom to regulate UK-established video-sharing platforms, meaning that the industry will already have familiarity with this definition and that Ofcom will already have experience in regulating content which meets this definition. That means it can take action more swiftly. However, I have heard the very large number of noble Lords who are inclined to support the work that my noble friend is doing in the amendments he has proposed. I am grateful for the time he has already dedicated to conversations with the Secretary of State and me on this and look forward to discussing it in more detail with him between now and Committee.

A number of noble Lords, including the noble Baronesses, Lady Finlay of Llandaff and Lady Kennedy of The Shaws, talked about algorithms. All platforms will need to undertake risk assessments for illegal content. Services likely to be accessed by children will need to undertake a children’s risk assessment to ensure they understand the risks associated with their services. That includes taking into account in particular the risk of algorithms used by their service. In addition, the Bill includes powers to ensure that Ofcom is able effectively to assess whether companies are fulfilling their regulatory requirements, including in relation to the operating of their algorithms. Ofcom will have the power to require information from companies about the operation of their algorithms and the power to investigate non-compliance as well as the power to interview employees. It will have the power to require regulated service providers to undergo a skilled persons report and to audit company systems and processes, including in relation to their algorithms.

The noble Baroness, Lady Kidron, rightly received many tributes for her years of work in relation to so many aspects of this Bill. She pressed me on bereaved parents’ access to data and, as she knows, it is a complex issue. I am very grateful to her for the time she has given to the meetings that the Secretary of State and I have had with her and with colleagues from the Ministry of Justice on this issue, which we continue to look at very carefully. We acknowledge the distress that some parents have indeed experienced in situations such as this and we will continue to work with her and the Ministry of Justice very carefully to assess this matter, mindful of its complexities which, of course, were something the Joint Committee grappled with as well.

The noble Baroness, Lady Featherstone, my noble friend Lady Wyld and others focused on the new cyberflashing offence and suggested that a consent-based approach would be preferable. The Law Commission looked at that in drawing up its proposals for action in this area. The Law Commission’s report raised concerns about the nature of consent in instant messaging conversations, particularly where there are misjudged attempts at humour or intimacy that could particularly affect young people. There is a risk, which we will want to explore in Committee, of overcriminalising young people. That is why the Government have brought forward proposals based on the Law Commission’s work. If noble Lords are finding it difficult to see the Law Commission’s reports, I am very happy to draw them to their attention so that they can benefit from the consultation and thought it conducted on this difficult issue.

The noble Baroness, Lady Gohir, talked about the impact on body image of edited images in advertising. Through its work on the online advertising programme, DCMS is considering how the Government should approach advertisements that contribute to body image concerns. A consultation on this programme closed in June 2022. We are currently analysing the responses to the consultation and developing policy. Where there is harmful user-generated content related to body image that risks having an adverse physical or psychological impact on children, the Online Safety Bill will require platforms to take action against that. Under the Bill’s existing risk assessment duties, regulated services are required to consider how media literacy can be used to mitigate harm for child users. That could include using content provenance technology, which can empower people to identify when content has been digitally altered in ways such as the noble Baroness mentioned.

A number of noble Lords focused on the changes made in relation to the so-called “legal but harmful” measures to ensure that adults have the tools they need to curate and control their experience online. In particular, noble Lords suggested that removing the requirement for companies to conduct risk assessments in relation to a list of priority content harmful to adults would reduce protections available for users. I do not agree with that assessment. The new duties will empower adult users to make informed choices about the services they use and to protect themselves on the largest platforms. The new duties will require the largest platforms to enforce all their terms of service regarding the moderation of user-generated content, not just the categories of content covered in a list in secondary legislation. The largest platforms already prohibit the most abusive and harmful content. Under the new duties, platforms will be required to keep their promises to users and take action to remove it.

There was rightly particular focus on vulnerable adult users. The noble Baronesses, Lady Hollins and Lady Campbell of Surbiton, and others spoke powerfully about that. The Bill will give vulnerable adult users, including people with disabilities, greater control over their online experience too. When using a category 1 service, they will be able to reduce their exposure to online abuse and hatred by having tools to limit the likelihood of their encountering such content or to alert them to the nature of it. They will also have greater control over content that promotes, encourages or provides instructions for suicide, self-harm and eating disorders. User reporting and redress provisions must be easy to access by all users, including people with a disability and adults with caring responsibilities who are providing assistance. Ofcom is of course subject to the public sector equality duty as well, so when performing its duties, including writing its codes of practice, it will need to take into account the ways in which people with protected characteristics, including people with disabilities, can be affected. I would be very happy to meet the noble Baronesses and others on this important matter.

The noble Lords, Lord Hastings of Scarisbrick and Lord Londesborough, and others talked about media literacy. The Government fully recognise the importance of that in achieving online safety. As well as ensuring that companies take action to keep users safe through this Bill, we are taking steps to educate and empower them to make safe and informed choices online. First, the Bill strengthens Ofcom’s existing media literacy functions. Media literacy is included in Ofcom’s new transparency reporting and information-gathering powers. In response to recommendations from the Joint Committee, the legislation also now specifies media literacy in the risk-assessment duties. In July 2021, DCMS published the online media literacy strategy, which sets out our ambition to improve national media literacy. We have committed to publishing annual action plans in each financial year until 2024-25, setting out our plans to deliver that. Furthermore, in December of that year, Ofcom published Ofcom’s Approach to Online Media Literacy, which includes an ambitious range of work focusing on media literacy.

Your Lordships’ House is, understandably, not generally enthusiastic about secondary legislation and secondary legislative powers, so I was grateful for the recognition by many tonight of the importance of providing for them in certain specific instances through this Bill. As the noble Lord, Lord Brooke of Alverthorpe, put it, there may be loopholes that Parliament wishes to close, and quickly. My noble friend Lord Inglewood spoke of the need for “living legislation”, and it is important to stress, as many have, that this Bill seeks to be technology-neutral—not specifying particular technological approaches that may quickly become obsolete—in order to cater for new threats and challenges as yet not envisaged. Some of those threats and challenges were alluded to in the powerful speech of my noble friend Lord Sarfraz. I know noble Lords will scrutinise those secondary powers carefully. I can tell my noble friend that the Bill does apply to companies that enable users to share content online or interact with each other, as well as to search services. That includes a broad range of services, including the metaverse. Where haptics enable user interaction, companies must take action. The Bill is also clear that content generated by bots is in scope where it interacts with user-generated content such as on Twitter, but not if the bot is controlled by or on behalf of the service, such as providing customer services for a particular site.

Given the range of secondary powers and the changing technological landscape, a number of noble Lords understandably focused on the need for post-legislative scrutiny. The Bill has undoubtedly benefited from pre-legislative scrutiny. As I said to my noble friend Lady Stowell of Beeston in her committee last week, we remain open-minded on the best way of doing that. We must ensure that once this regime is in force, it has the impact we all want it to have. Ongoing parliamentary scrutiny will be vital in ensuring that is the case. We do not intend to legislate for a new committee, not least because it is for Parliament itself to decide what committees it sets up. But I welcome further views on how we ensure that we have effective parliamentary scrutiny, and I look forward to discussing that in Committee. We have also made it very clear that the Secretary of State will undertake a review of the effectiveness of the regime between two and five years after it comes into force, producing a report that will then be laid in Parliament, thus providing a statutory opportunity for Parliament to scrutinise the effectiveness of the legislation.

My noble friend and other members of her committee followed up with a letter to me about the Secretary of State’s powers. I shall reply to that letter in detail and make that available to all noble Lords to see ahead of Committee. This is ground-breaking legislation, and we have to balance the need for regulatory independence with the appropriate oversight for Parliament and the Government. In particular, concerns were raised about the Secretary of State’s power of direction in Clause 39. Ofcom’s independence and expertise will be of utmost importance here, but the very broad nature of online harms means that there may be subjects that go beyond its expertise and remit as a regulator. That was echoed by Ofcom itself when giving evidence to the Joint Committee: it noted that there will clearly be some issues in respect of which the Government have access to expertise and information that the regulator does not, such as national security.

The framework in the Bill ensures that Parliament will always have the final say on codes of practice, and the use of the affirmative procedure will further ensure that there is an increased level of scrutiny in the exceptional cases where that element of the power is used. As I said, I know that we will look at that in detail in Committee.

My noble friend Lord Black of Brentwood, quoting Stanley Baldwin, talked about the protections for journalistic content. He and others are right that the free press is a cornerstone of British democracy; that is why the Bill has been designed to protect press and media freedom and why it includes robust provisions to ensure that people can continue to access diverse news sources online. Category 1 companies will have a new duty to safeguard all journalistic content shared on their platform, which includes citizen journalism. Platforms will need to put systems and processes in place to protect journalistic content, and they must enforce their terms of service consistently across all moderation and in relation to journalistic content. They will also need to put in place expedited appeals processes for producers of journalistic content.

The noble Baroness, Lady Anderson of Stoke-on-Trent, spoke powerfully about the appalling abuse and threats of violence she sustained in her democratic duties, and the noble Baroness, Lady Foster, spoke powerfully of the way in which that is putting off people, particularly women, from going into public life. The noble Baroness, Lady Anderson, asked about a specific issue: the automatic deletion of material and the implications for prosecution. We have been mindful of the scenario where malicious users post threatening content which they then delete themselves, and of the burden on services that retaining that information in bulk would cause. We have also been mindful of the imperative to ensure that illegal content cannot be shared and amplified online by being left there. The retention of data for law enforcement purposes is strictly regulated, particularly through the Investigatory Powers Act, which the noble Lord, Lord Anderson of Ipswich, is reviewing at the request of the Home Secretary. I suggest that the noble Baroness and I meet to speak about that in detail, mindful of that ongoing review and the need to bring people to justice.

The noble Baroness, Lady Chakrabarti, asked about sex for rent. Existing offences can be used to prosecute that practice, including Sections 52 and 53 of the Sexual Offences Act 2003, both of which are listed as priority offences in Schedule 7 to the Bill. As a result, all in-scope services must take proactive measures to prevent people being exposed to such content.

The noble Lord, Lord Davies of Brixton, and others talked about scams. The largest and most popular platforms and search engines—category 1 and category 2A services in the Bill—will have a duty to prevent paid-for fraudulent adverts appearing on their services, making it harder for fraudsters to advertise scams online. We know that that can be a particularly devastating crime. The online advertising programme builds on this duty in the Bill and will look at the role of the whole advertising system in relation to fraud, as well as the full gamut of other harms which are caused.

My noble friend Lady Fraser talked about the devolution aspects, which we will certainly look at. Internet services are a reserved matter for the UK Government. The list of priority offences in Schedule 7 can be updated only by the Secretary of State, subject to approval by this Parliament.

The right reverend Prelate the Bishop of Manchester asked about regulatory co-operation, and we recognise the importance of that. Ofcom has existing and strong relationships with other regulators, such as the ICO and the CMA, which has been supported and strengthened by the establishment of the Digital Regulation Cooperation Forum in 2020. We have used the Bill to strengthen Ofcom’s ability to work closely with, and to disclose information to, other regulatory bodies. Clause 104 ensures that Ofcom can do that, and the Bill also requires Ofcom to consult the Information Commissioner.

I do not want to go on at undue length—I am mindful of the fact that we will have detailed debates on all these issues and many more in Committee—but I wish to conclude by reiterating my thanks to all noble Lords, including the many who were not able to speak today but to whom I have already spoken outside the Chamber. They all continue to engage constructively with this legislation to ensure that it meets our shared objectives of protecting children and giving people a safe experience online. I look forward to working with noble Lords in that continued spirit.

My noble friend Lady Morgan of Cotes admitted to being one of the cavalcade of Secretaries of State who have worked on this Bill; I pay tribute to her work both in and out of office. I am pleased that my right honourable friend the Secretary of State was here to observe part of our debate today and, like all noble Lords, I am humbled that Ian Russell has been here to follow our debate in its entirety. The experience of his family and too many others must remain uppermost in our minds as we carry out our duty on the Bill before us; I know that it will be. We have an important task before us, and I look forward to getting to it.

Bill read a second time.