Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 17th July 2023
(10 months ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-V Fifth marshalled list for Report - (17 Jul 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, let me add to this miscellany by speaking to the government amendments that stand in my name as part of this group. The first is Amendment 288A, which we mentioned on the first group of amendments on Report because it relates to the new introductory clause, Clause 1, and responds to the points raised by the noble Lord, Lord Stevenson of Balmacara. I am very happy to say again that the Government recognise that people with multiple and combined characteristics suffer disproportionately online and are often at greater risk of harm. This amendment therefore adds a provision in the new interpretation clause, Clause 1, to put beyond doubt that all the references to people with “a certain characteristic” throughout the Bill include people with a combination of characteristics. We had a good debate about the Interpretation Act 1978, which sets that out, but we are happy to set it out clearly here.
In his Amendment 186A, my noble friend Lord Moylan seeks to clarify a broader issue relating to consumer rights and online platforms. He got some general support—certainly gratitude—for raising this issue, although there was a bit of a Committee-style airing of it and a mixture of views on whether this is the right way or the right place. The amendment seeks to make it clear that certain protections for consumers in the Consumer Rights Act 2015 apply when people use online services and do not pay for them but rather give up their personal data in exchange. The Government are aware that the application of the law in that area is not always clear in relation to free digital services and, like many noble Lords, express our gratitude to my noble friend for highlighting the issue through his amendment.
We do not think that the Bill is the right vehicle for attempting to provide clarification on this point, however. We share some of the cautions that the noble Lord, Lord Allan of Hallam, raised and agree with my noble friend Lady Harding of Winscombe that this is part of a broader question about consumer rights online beyond the services with which the Bill is principally concerned. It could be preferable that the principle that my noble friend Lord Moylan seeks to establish through his amendment should apply more widely than merely to category 1 services regulated under the Bill. I assure him that the Bill will create a number of duties on providers which will benefit users and clarify that they have existing rights of action in the courts. We discussed these new protections in depth in Committee and earlier on Report. He drew attention to Clause 65(1), which puts a requirement on all services, not just category 1 services, to include clear and accessible provisions in their terms of service informing users about their right to bring a claim for breach of contract. Therefore, while we are grateful, we agree with noble Lords who suggested that this is a debate for another day and another Bill.
Amendment 191A from the noble Baroness, Lady Kidron, would require Ofcom to issue guidance for coroners and procurators fiscal to aid them in submitting requests to Ofcom to exercise its power to obtain information from providers about the use of a service by a deceased child. While I am sympathetic to her intention, I do not think that her amendment is the right answer. It would be inappropriate for an agency of the Executive to issue guidance to a branch of the judiciary. As I explained in Committee, it is for the Chief Coroner to provide detailed guidance to coroners. This is written to assist coroners with the law and their legal duties and to provide commentary and advice on policy and practice.
The amendment tabled by the noble Baroness cuts across the role of the Chief Coroner and risks compromising the judicial independence of the coroner, as set out in the Constitutional Reform Act 2005. As she is aware, the Chief Coroner has agreed to consider issuing guidance to coroners on social media and to consider the issues covered in the Bill. He has also agreed to explore whether coroners would benefit from additional training, with the offer of consultation with experts including Ofcom and the Information Commissioner’s Office. I suggest that the better approach would be for Ofcom and the Information Commissioner’s Office to support the Chief Coroner in his consideration of these issues where he would find that helpful.
I agree with the noble Lord, Lord Allan, that coroners must have access to online safety expertise given the technical and fast-moving nature of this sector. As we have discussed previously, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest following a request from a coroner which will provide that expertise. I hope that this reassures the noble Baroness.
Baroness Kidron (CB)
I understand the report on a specific death, which is very welcome and part of the regime as we all see it. The very long list of things that the coroner may not know that they do not know, as I set out in the amendment, is the issue which I and other noble Lords are concerned about. If the Government could find a way to make that possible, I would be very grateful.
Lord Parkinson of Whitley Bay (Con)
We are keen to ensure that coroners have access to the information and expertise that they need, while respecting the independence of the judicial process to decide what they do not know and would like to know more about and the role of the Chief Coroner there. It is a point that I have discussed a lot with the noble Baroness and with my noble friend Lady Newlove in her former role as Victims’ Commissioner. I am very happy to continue doing so because it is important that there is access to that.
The noble Lord, Lord Stevenson, spoke to the amendments tabled by the noble Baroness, Lady Merron, about supposedly gendered language in relation to Clauses 141 and 157. As I made clear in Committee, I appreciate the intention—as does Lady Deben—of making clear that a person of either sex can perform the role of chairman, just as they can perform the role of ombudsman. We have discussed in Committee the semantic point there. The Government have used “chairman” here to be consistent with terminology in the Office of Communications Act 2002. I appreciate that this predates the Written Ministerial Statement which the noble Lord cited, but that itself made clear that the Government at the time recognised that in practice, parliamentary counsel would need to adopt a flexible approach to this change—for example, in at least some of the cases where existing legislation originally drafted in the former style is being amended.
The noble Lord may be aware of a further Written Ministerial Statement, made on 23 May last year, following our debates on gendered language on another Bill, when the then Lord President of the Council and Leader of the House of Commons said that the Office of the Parliamentary Counsel would update its drafting guidance in light of that. That guidance is still forthcoming. However, importantly, the term here will have no bearing on Ofcom’s decision-making on who would chair the advisory committees. It must establish that this could indeed be a person of either sex.
Amendment 253 seeks to enable co-operation, particularly via information-sharing, between Ofcom and other regulators within the UK. I reassure noble Lords that Section 393 of the Communications Act 2003 already includes provisions for sharing information between Ofcom and other regulators in the UK.
As has been noted, Ofcom already co-operates effectively with other domestic regulators. That has been strengthened by the establishment of the Digital Regulation Co-operation Forum. By promoting greater coherence, the forum helps to resolve potential tensions, offering clarity for people and the industry. It ensures collaborative work across areas of common interest to address complex problems. Its outputs have already delivered real and wide-ranging impacts, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues, and horizon-scanning activities on new regulatory challenges. We will continue to assess how best to support collaboration between digital regulators and to ensure that their approaches are joined up. We therefore do not think that Amendment 253 is necessary.
Lord Clement-Jones (LD)
My Lords, the Minister has not stated that there is a duty to collaborate. Is he saying that that is, in fact, the case in practice?
Lord Parkinson of Whitley Bay (Con)
Yes, there is a duty, and the law should be followed. I am not sure whether the noble Lord is suggesting that it is not—
Lord Parkinson of Whitley Bay (Con)
I am not sure that I follow the noble Lord’s question, but perhaps—
Lord Clement-Jones (LD)
My Lords, the Minister is saying that, in practice, there is a kind of collaboration between regulators and that there is a power under the Communications Act, but is he saying that there is any kind of duty on regulators to collaborate?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord setting that out; he has lost me with his question. We believe, as I think he said, that the forum has added to the collaboration in this important area.
The noble Baroness, Lady Finlay, raised important questions about avatars and virtual characters. The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
meaning that it already captures the various ways through which users may encounter content. In the metaverse, this could therefore include things such as avatars or characters created by users. As part of the user-to-user services’ risk assessments, providers will be required to consider more than the risk in relation to user-generated content, including aspects such as how the design and operation of their services, including functionality and how the service is used, might increase the risk of harm to children and the presence of illegal content. A user-to-user service will need to consider any feature which enables interaction of any description between users of the service when carrying out its risk assessments.
The Bill is focused on user-to-user and search services, as there is significant evidence to support the case for regulation based on the risk of harm to users and the current lack of regulatory and other accountability in this area. Hosting, sharing and the discovery of user-generated content and activity give rise to a range of online harms, which is why we have focused on those services. The Bill does not regulate content published by user-to-user service providers themselves; instead, providers are already liable for the content that they publish on their services themselves, and the criminal law is the most appropriate mechanism for dealing with services which publish illegal provider content.
The noble Baroness’s Amendment 275A seeks to require Ofcom to produce a wide-ranging report of behaviour facilitated by emerging technologies. As we discussed in Committee, the Government of course agree that Ofcom needs continually to assess future risks and the capacity of emerging technologies to cause harm. That is why the Bill already contains provisions which allow it to carry out broad horizon scanning, such as its extensive powers to gather information, to commission skilled persons’ reports and to require providers to produce transparency reports. Ofcom has already indicated that it plans to research emerging technologies, and the Bill will require it to update its risk assessments, risk profiles and codes of practice with the outcomes of this research where relevant.
As we touched on in Committee, Clause 56 requires regular reviews by Ofcom into the incidence of content that is harmful to children, and whether there should be changes to regulations setting out the kinds of content that are harmful to children. In addition, Clause 143 mandates that Ofcom should investigate users’ experience of regulated services, which are likely to cover user interactions in virtual spaces, such as the metaverse and those involving content generated by artificial intelligence.
Baroness Finlay of Llandaff (CB)
I am most grateful to the Minister; perhaps I could just check something he said. There was a great deal of detail and I was trying to capture it. On the question of harms to children, we all understand that the harms to children are viewed more extensively than harms to others, but I wondered: what counts as unregulated services? The Minister was talking about regulated services. What happens if there is machine-generated content which is not generated by any user but by some random codes that are developed and then randomly incite problematic behaviours?
Lord Parkinson of Whitley Bay (Con)
I am happy to provide further detail in writing and to reiterate the points I have made as it is rather technical. Content that is published by providers of user-to-user services themselves is not regulated by the Bill because providers are liable for the content they publish on the services themselves. Of course, that does not apply to pornography, which we know poses a particular risk to children online and is regulated through Part 5 of the Bill. I will set out in writing, I hope more clearly, for the noble Baroness what is in scope to reassure her about the way the Bill addresses the harms that she has rightly raised.
Lord Moylan (Con)
My Lords, this has indeed been a wide-ranging and miscellaneous debate. I hope that since we are considering the Bill on Report noble Lords will forgive me if I do not endeavour to summarise all the different speeches and confine myself to one or two points.
The first is to thank the noble Baroness, Lady Kidron, for her support for my amendment but also to say that having heard her argument in favour of her Amendment 191A, I think the difference between us is entirely semantic. Had she worded it so as to say that Ofcom should be under a duty to offer advice to the Chief Coroner, as opposed to guidance to coroners, I would have been very much happier with it. Guidance issued under statute has to carry very considerable weight and, as my noble friend the Minister said, there is a real danger in that case of an arm of the Executive, if you like, or a creature of Parliament—however one wants to regard Ofcom—interfering in the independence of the judiciary. Had she said “advice to the Chief Coroner and whoever is the appropriate officer in Scotland”, that would have been something I could have given wholehearted support to. I hope she will forgive me for raising that quibble at the outset, but I think it is a quibble rather than a substantial disagreement.
On my own amendment, I simply say that I am grateful to my noble friend for the brevity and economy with which he disposed of it. He was of course assisted in that by the remarks and arguments made by many other noble Lords in the House as they expressed their support for it in principle.
I think there is a degree of confusion about what the Bill is doing. There seemed to be a sense that somehow the amendment was giving individuals the right to bring actions in the courts against providers, but of course that already happens because that right exists and is enshrined in Article 65. All the amendment would do is give some balance so that consumers actually had some protections in what is normally, in essence, an unequal contest, which is trying to ensure that a large company enforces the terms and contracts that it has written.
In particular, my amendment would give, as I think noble Lords know, the right to demand repeat performance—that is, in essence, the right to put things right, not monetary compensation—and it would frustrate any attempts by providers, in drafting their own terms and conditions, to limit their own liability. That is of course what they seek to do but the Consumer Rights Act frustrates them in their ability to do so.
We will say no more about that for now. With that, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment makes a change to a provision about what the terms of service of a Category 1 service say. The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
Lord Parkinson of Whitley Bay (Con)
My Lords, transparency and accountability are at the heart of the regulatory framework that the Bill seeks to establish. It is vital that Ofcom has the powers it needs to require companies to publish online safety information and to scrutinise their systems and processes, particularly their algorithms. The Government agree about the importance of improving data sharing with independent researchers while recognising the nascent evidence base and the complexities of this issue, which we explored in Committee. We are pleased to be bringing forward a number of amendments to strengthen platforms’ transparency, which confer on Ofcom new powers to assess how providers’ algorithms work, which accelerate the development of the evidence base regarding researchers’ access to information and which require Ofcom to produce guidance on this issue.
Amendment 187 in my name makes changes to Clause 65 on category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. The amendment tightens the clause to ensure that all the providers’ terms through which they might indicate that a certain kind of content is not allowed on its service are captured by these duties.
Amendment 252G is a drafting change, removing a redundant paragraph from the Bill in relation to exceptions to the legislative definition of an enforceable requirement in Schedule 12.
In relation to transparency, government Amendments 195, 196, 198 and 199 expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports. With thanks to the noble Lord, Lord Stevenson of Balmacara, for his engagement on this issue, we are pleased to table these amendments, which will allow Ofcom to require providers to publish information relating to the formulation, development and scope of user-to-user service providers’ terms of service and search service providers’ public statements of policies and procedures. This is in addition to the existing transparency provision regarding their application.
Amendments 196 and 199 would enable Ofcom to require providers to publish more information in relation to algorithms, specifically information about the design and operation of algorithms that affect the display, promotion, restriction, discovery or recommendation of content subject to the duties in the Bill. These changes will enable greater public scrutiny of providers’ terms of service and their algorithms, providing valuable information to users about the platforms that they are using.
As well as publicly holding platforms to account, the regulator must be able to get under the bonnet and scrutinise the algorithms’ functionalities and the other systems and processes that they use. Empirical tests are a standard method for understanding the performance of an algorithmic system. They involve taking a test data set, running it through an algorithmic system and observing the output. These tests may be relevant for assessing the efficacy and wider impacts of content moderation technology, age-verification systems and recommender systems.
Government Amendments 247A, 250A, 252A, 252B, 252C, 252D, 252E and 252F will ensure that Ofcom has the powers to enable it to direct and observe such tests remotely. This will significantly bolster Ofcom’s ability to assess how a provider’s algorithms work, and therefore to assess its compliance with the duties in the Bill. I understand that certain technology companies have voiced some concerns about these powers, but I reassure your Lordships that they are necessary and proportionate.
The powers will be subject to a number of safeguards. First, they are limited to viewing information. Ofcom will be unable to remotely access or interfere with the service for any other purpose when exercising the power. These tests would be performed offline, meaning that they would not affect the services’ provision or the experience of users. Assessing systems, processes, features and functionalities is the focus of the powers. As such, individual user data and content are unlikely to be the focus of any remote access to view information.
Additionally, the power can be used only where it is proportionate to use in the exercise of Ofcom’s functions—for example, when investigating whether a regulated service has complied with relevant safety duties. A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was unlawful. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
The Bill contains no restriction on services making the existence and detail of the information notice public. Should a regulated service wish to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. In addition, the amendments create no restrictions on the use of this power being viewable to members of the public through a request, such as those under the Freedom of Information Act—noting that under Section 393 of the Communications Act, Ofcom will not be able to disclose information it has obtained through its exercise of these powers without the provider’s consent, unless permitted for specific, defined purposes. These powers are necessary and proportionate and will that ensure Ofcom has the tools to understand features and functionalities and the risks associated with them, and therefore the tools to assess companies’ compliance with the Bill.
Finally, I turn to researchers’ access to data. We recognise the valuable work of researchers in improving our collective understanding of the issues we have debated throughout our scrutiny of the Bill. However, we are also aware that we need to develop the evidence base to ensure that any sharing of sensitive information between companies and researchers can be done safely and securely. To this end, we are pleased to table government Amendments 272B, 272C and 272D.
Government Amendment 272B would require Ofcom to publish its report into researcher access to information within 18 months, rather than two years. This report will provide the evidence base for government Amendments 272C and 272D, which would require Ofcom to publish guidance on this issue. This will provide valuable, evidence-based guidance on how to improve access for researchers safely and securely.
That said, we understand the calls for further action in this area. The Government will explore this issue further and report back to your Lordships’ House on whether further measures to support researchers’ access to data are required—and if so, whether they could be implemented through other legislation, such as the Data Protection and Digital Information Bill. I beg to move.
Lord Allan of Hallam (LD)
My Lords, Amendment 247B in my name was triggered by government Amendment 247A, which the Minister just introduced. I want to explain it, because the government amendment is quite late—it has arrived on Report—so we need to look in some detail at what the Government have proposed. The phrasing that has caused so much concern, which the Minister has acknowledged, is that Ofcom will be able to
“remotely access the service provided by the person”.
It is those words—“remotely access”—which are trigger words for anyone who lived through the Snowden disclosures, where everyone was so concerned about remote access by government agencies to precisely the same services we are talking about today: social media services.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their contributions in this group. On the point made by the noble Lord, Lord Knight of Weymouth, on why we are bringing in some of these powers now, I say that the power to direct and observe algorithms was previously implicit within Ofcom’s information powers and, where a provider has UK premises, under powers of entry, inspection and audit under Schedule 12. However, the Digital Markets, Competition and Consumers Bill, which is set to confer similar powers on the Competition and Markets Authority and its digital markets unit, makes these powers explicit. We wanted to ensure that there was no ambiguity over whether Ofcom had equivalent powers in the light of that. Furthermore, the changes we are making ensure that Ofcom can direct and observe algorithmic assessments even if a provider does not have relevant premises or equipment in the UK.
I am grateful to the noble Lord, Lord Allan of Hallam, for inviting me to re-emphasise points and allay the concerns that have been triggered, as his noble friend Lord Clement-Jones put it. I am happy to set out again a bit of what I said in opening this debate. The powers will be subject to a number of safeguards. First, they are limited to “viewing information”. They can be used only where they are proportionate in the exercise of Ofcom’s functions, and a provider would have the right to bring a legal challenge against Ofcom if it considered that a particular exercise of the power was done unlawfully. Furthermore, Ofcom will be under a legal obligation to ensure that the information gathered from services is protected from disclosure, unless clearly defined exemptions apply.
These are not secret powers, as the noble Lord rightly noted. The Bill contains no restriction on services making the existence and detail of the information notice public. If a regulated service wished to challenge an information notice served to it by Ofcom, it would be able to do so through judicial review. I also mentioned the recourse that people have through existing legislation, such as the Freedom of Information Act, to give them safeguards, noting that, under Section 393 of the Communications Act, Ofcom will not be able to disclose information that it has obtained through its exercise of these powers without the provider’s consent unless that is permitted for specific, defined purposes.
The noble Lord’s Amendment 247B seeks to place further safeguards on Ofcom’s use of its new power to access providers’ systems remotely to observe tests. While I largely agree with the intention behind it, there are already a number of safeguards in place for the use of that power, including in relation to data protection, legally privileged material and the disclosure of information, as I have outlined. Ofcom will not be able to gain remote access simply for exploratory or fishing purposes, and indeed Ofcom expects to have conversations with services about how to provide the information requested.
Furthermore, before exercising the power, Ofcom will be required to issue an information notice specifying the information to be provided, setting out the parameters of access and why Ofcom requires the information, among other things. Following the receipt of an information notice, a notice requiring an inspection or an audit notice, if a company has identified that there is an obvious security risk in Ofcom exercising the power as set out in the notice, it may not be proportionate to do so. As set out in Ofcom’s duties, Ofcom must have regard to the principles under which regulatory activities should be proportionate and targeted only at cases where action is needed.
In line with current practice, we anticipate Ofcom will issue information notice requests in draft form to identify and address any issues, including in relation to security, before the information notice is issued formally. Ofcom will have a legal duty to exercise its remote access powers in a way that is proportionate, ensuring that undue burdens are not placed on businesses. In assessing proportionality in line with this requirement, Ofcom would need to consider the size and resource capacity of a service when choosing the most appropriate way of gathering information, and whether there was a less onerous method of obtaining the necessary information to ensure that the use of this power is proportionate. As I said, the remote access power is limited to “viewing information”. Under this power, Ofcom will be unable to interfere or access the service for any other purpose.
In practice, Ofcom will work with services during the process. It is required to specify, among other things, the information to be provided, which will set the parameters of its access, and why it requires the information, which will explain the link between the information it seeks and the online safety function that it is exercising or deciding whether to exercise.
As noble Lords know, Ofcom must comply with the UK’s data protection law. As we have discussed in relation to other issues, it is required to act compatibly with the European Convention on Human Rights, including Article 8 privacy rights. In addition, under Clause 91(7), Ofcom is explicitly prohibited from requiring the provision of legally privileged information. It will also be under a legal obligation to ensure that the information gathered from services is protected from disclosure unless clearly defined exemptions apply, such as those under Section 393(2) of the Communications Act 2003—for example, the carrying out of any of Ofcom’s functions. I hope that provides reassurance to the noble Lord, Lord Allan, and the noble Baroness, Lady Fox, who raised these questions.
Lord Allan of Hallam (LD)
I am grateful to the Minister. That was helpful, particularly the description of the process and the fact that drafts have to be issued early on. However, it still leaves open a couple of questions, one of which was very helpfully raised by the noble Lord, Lord Knight. We have in Schedule 12 this other set of protections that could be applied. There is a genuine question as to why this has been put in this place and not there.
The second question is to dig a little more into the question of what happens when there is a dispute. The noble Lord, Lord Moylan, pointed out that if you have created a backdoor then you have created a backdoor, and it is dangerous. If we end up in a situation where a company believes that what it is being asked to do by Ofcom is fundamentally problematic and would create a security risk, it will not be good enough to open up the backdoor and then have a judicial review. It needs to be able to say no at that stage, yet the Bill says that it could be committing a serious criminal offence by failing to comply with an information notice. We want some more assurances, in some form, about what would happen in a scenario where a company genuinely and sincerely believes that what Ofcom is asking for is inappropriate and/or dangerous and it wants not to have to offer it unless and until its challenge has been looked at, rather than having to offer it and then later judicially review a decision. The damage would already have been done by opening up an inappropriate backdoor.
Lord Parkinson of Whitley Bay (Con)
A provider would have a right to bring a legal challenge against Ofcom if it considered that a particular exercise of the remote access power was unlawful. I am sure that would be looked at swiftly, but I will write to the noble Lord on the anticipated timelines while that judicial review was pending. Given the serious nature of the issues under consideration, I am sure that would be looked at swiftly. I will write further on that.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, to quote the way the Minister has operated throughout Report, there is consensus across the House that there are some concerns. The reason why there are concerns outside and inside the House on this particular amendment is that it is not entirely clear that those protections exist, and there are worries. I ask the Minister whether, rather than just writing, it would be possible to take this back to the department, table a late amendment and say, “Look again”. That has been done before. It is certainly not too late: if it was not too late to have this amendment then it is certainly not too late to take it away again and to adopt another amendment that gives some safeguarding. Seriously, it is worth looking again.
Lord Parkinson of Whitley Bay (Con)
I had not quite finished; the noble Baroness was quick to catch me before I sat down. I still have some way to go, but I will certainly take on board all the points that have been made on this group.
The noble Lord, Lord Knight, asked about Schedule 12. I will happily write with further information on that, but Schedule 12 is about UK premises, so it is probably not the appropriate place to deal with this, as we need to be able to access services in other countries. If there is a serious security risk then it would not necessarily be proportionate. I will write to him with further details.
Lord Knight of Weymouth (Lab)
I am grateful to the Minister for giving way so quickly. I think the House is asking him to indicate now that he will go away and look at this issue, perhaps with some of us, and that, if necessary, he would be willing to look at coming back with something at Third Reading. From my understanding of the Companion, I think he needs to say words to that effect to allow him to do so, if that is what he subsequently wants to do at Third Reading.
Lord Parkinson of Whitley Bay (Con)
I am very happy to discuss this further with noble Lords, but I will reserve the right, pending that discussion, to decide whether we need to return to this at Third Reading.
Amendments 270 and 272, tabled by my noble friend Lady Fraser of Craigmaddie, to whom I am very grateful for her careful scrutiny of the devolved aspects of the Bill, seek to require Ofcom to include separate analyses of users’ online experiences in England, Wales, Scotland and Northern Ireland in the research about users’ experiences of regulated services and in Ofcom’s transparency reports. While I am sympathetic to her intention—we have corresponded on it, for which I am grateful—it is important that Ofcom has and retains the discretion to prioritise information requests that will best shed light on the experience of users across the UK.
My noble friend and other noble Lords should be reassured that Ofcom has a strong track record of using this discretion to produce data which are representative of people across the whole United Kingdom. Ofcom is committed to reflecting the online experiences of users across the UK and intends, wherever possible, to publish data at a national level. When conducting research, Ofcom seeks to gather views from a representative sample of the United Kingdom and seeks to set quotas that ensure an analysable sample within each of the home nations.
It is also worth noting the provisions in the Communications Act 2003 that require Ofcom to operate offices in each of the nations of the UK, to maintain advisory committees for each, and to ensure their representation on its various boards and panels—and, indeed, on the point raised by the noble Baroness, Lady Kidron, to capture the experiences of children and users of all ages. While we must give Ofcom the discretion it needs to ensure that the framework is flexible and remains future-proofed, I hope that I have reassured my noble friend that her point will indeed be captured, reported on and be able to be scrutinised, not just in this House but across the UK.
Baroness Fraser of Craigmaddie (Con)
I am grateful to the Minister for giving way. My premise is that the reason Ofcom reports in a nation-specific way in broadcasting and in communications is because there is a high-level reference in both the Communications Act 2003 and the BBC charter that requires it to do so, because it feeds down into national quotas and so on. There is currently nothing of that equivalence in the Online Safety Bill. Therefore, we are relying on Ofcom’s discretion, whereas in the broadcasting and communications area we have a high-level reference to insisting that there is a breakdown by nation.
Lord Parkinson of Whitley Bay (Con)
We think we can rely on Ofcom’s discretion, and point to its current practice. I hope that will reassure my noble friend that it will set out the information she seeks.
Lord Parkinson of Whitley Bay (Con)
I was about to say that I am very happy to write to the noble Lord, Lord Stevenson, about the manner by which consent is given in Clause 53(5)(c), but I think his question is on something else.
Lord Stevenson of Balmacara (Lab)
I would be grateful if the Minister could repeat that immediately afterwards, when I will listen much harder.
Just to echo what the noble Baroness was saying, may we take it as an expectation that approaches that are signalled in legislation for broadcasting and communications should apply pari passu to the work of Ofcom in relation to the devolved Administrations?
Lord Parkinson of Whitley Bay (Con)
Yes, and we can point to the current actions of Ofcom to show that it is indeed doing this already, even without that legislative stick.
I turn to the amendments in the name of my noble friend Lord Bethell and the noble Lord, Lord Clement-Jones, on researchers’ access to data. Amendment 237ZA would confer on the Secretary of State a power to make provisions about access to information by researchers. As my noble friend knows, we are sympathetic to the importance of this issue, which is why we have tabled our own amendments in relation to it. However, as my noble friend also knows, in such a complex and sensitive area that we think it is premature to endow the Secretary of State with such broad powers to introduce a new framework. As we touched on in Committee, this is a complex and still nascent area, which is why it is different from the other areas to which the noble Lord, Lord Clement-Jones, pointed in his contribution.
Lord Clement-Jones (LD)
The noble Baroness, Lady Harding, made the point that in other areas where the Minister has agreed to reviews or reports, there are backstop powers; for instance, on app stores. Of course, that was a negotiated settlement, so to speak, but why can the Minister not accede to that in the case of access for researchers, as he has with app stores? Indeed, there is one other example that escapes me, which the Minister has also agreed to.
Lord Parkinson of Whitley Bay (Con)
We touched on the complexity of defining who and what is a researcher and making sure that we do not give rise to bad actors exploiting that. This is a complex area, as we touched on in Committee. As I say, the evidence base here is nascent. It is important first to focus on developing our understanding of the issues to ensure that any power or legislation is fit to address those challenges. Ofcom’s report will not only highlight how platforms can share data with researchers safely but will provide the evidence base for considering any future policy approaches, which we have committed to doing but which I think the noble Lord will agree are worthy of further debate and reflection in Parliament.
Lord Clement-Jones (LD)
The benefit of having a period of time between the last day of Report on Wednesday and Third Reading is that that gives the Minister, the Bill team and parliamentary counsel the time to reflect on the kind of power that could be devised. The wording could be devised, and I would have thought that six weeks would be quite adequate for that, perhaps in a general way. After all, this is not a power that is immediately going to be used; it is a general power that could be brought into effect by regulation. Surely it is not beyond the wit to devise something suitable.
Baroness Kidron (CB)
Sit down or stand up—I cannot remember.
I wonder whether the department has looked at the DSA and other situations where this is being worked out. I recognise that it takes a period of time, but it is not without some precedent that a pathway should be described.
Lord Parkinson of Whitley Bay (Con)
We do not think that six weeks is enough time for the evidence base to develop sufficiently, our assessment being that to endow the Secretary of State with that power at this point is premature.
Amendment 262AA would require Ofcom to consider whether it is appropriate to require providers to take steps to comply with Ofcom’s researcher access guidance when including a requirement to take steps in a confirmation decision. This would be inappropriate because the researcher access provisions are not enforceable requirements; as such, compliance with them should not be subject to enforcement by the regulator. Furthermore, enforcement action may relate to a wide variety of very important issues, and the steps needed should be sufficient to address a failure to comply with an enforceable requirement. Singling out compliance with researcher access guidance alone risks implying that this will be adequate to address core failures.
Amendment 272AB would require Ofcom to give consideration to whether greater access to data could be achieved through legal requirements or incentives for regulated services. I reassure noble Lords that the scope of Ofcom’s report will already cover how greater access to data could be achieved, including through enforceable requirements on providers.
Amendment 272E would require Ofcom to take a provider’s compliance with Ofcom’s guidance on researcher access to data into account when assessing risks from regulated services and determining whether to take enforcement action and what enforcement action to take. However, we do not believe that this is a relevant factor for consideration of these issues. I hope noble Lords will agree that whether or not a company has enabled researcher access to its data should not be a mitigating factor against Ofcom requiring companies to deal with terrorism or child sexual exploitation or abuse content, for example.
On my noble friend Lord Bethell’s remaining Amendments 272BA, 273A and 273B, the first of these would require Ofcom to publish its report on researchers’ access to information within six months. While six months would not be deliverable given other priorities and the complexity of this issue, the government amendment to which I have spoken would reduce the timelines from two years to 18 months. That recognises the importance of the issue while ensuring that Ofcom can deliver the key priorities in establishing the core parts of the regulatory framework; for example, the illegal content and child safety duties.
Lord Allan of Hallam (LD)
Just on the timescale, one of the issues that we talked about in Committee was the fact that there needs to be some kind of mechanism created, with a code of practice with reference to data protection law and an approving body to approve researchers as suitable to take information; the noble Baroness, Lady Kidron, referred to the DSA process, which the European Union has been working on. I hope the Minister can confirm that Ofcom might get moving on establishing that. It is not dependent on there being a report in 18 months; in fact, you need to have it in place when you report in 18 months, which means you need to start building it now. I hope the Minister would want Ofcom, within its existing framework, to be encouraging the creation of that researcher approval body and code of practice, not waiting to start that process in 18 months’ time.
Lord Parkinson of Whitley Bay (Con)
I will continue my train of thought on my noble friend’s amendments, which I hope will cover that and more.
My noble friend’s Amendment 273A would allow Ofcom to appoint approved independent researchers to access information. Again, given the nascent evidence base here, it is important to focus on understanding these issues before we commit to a researcher access framework.
Under the skilled persons provisions, Ofcom will already have the powers to appoint a skilled person to assess compliance with the regulatory framework; that includes the ability to leverage the expertise of independent researchers. My noble friend’s Amendment 273B would require Ofcom to produce a code of practice on access to data by researchers. The government amendments I spoke to earlier will require Ofcom to produce guidance on that issue, which will help to promote information sharing in a safe and secure way.
To the question asked by the noble Lord, Lord Allan: yes, Ofcom can start the process and do it quickly. The question here is really about the timeframe in which it does so. As I said in opening, we understand the calls for further action in this area.
I am happy to say to my noble friend Lord Bethell, to whom we are grateful for his work on this and the conversations we have had, that we will explore the issue further and report back on whether further measures to support researchers’ access to data are required and, if so, whether they can be implemented through other legislation, such as the Data Protection and Digital Information (No.2) Bill.
Lord Knight of Weymouth (Lab)
Before the Minister sits down—he has been extremely generous in taking interventions—I want to put on record my understanding of his slightly ambiguous response to Amendment 247A, so that he can correct it if I have got it wrong. My understanding is that he has agreed to go away and reflect on the amendment and that he will have discussions with us about it. Only if he then believes that it is helpful to bring forward an amendment at Third Reading will he do so.
Lord Parkinson of Whitley Bay (Con)
Yes, but I do not want to raise the hopes of the noble Lord or others, with whom I look forward to discussing this matter. I must manage their expectations about whether we will bring anything forward. With that, I beg to move.
Member’s explanatory statement
This amendment makes a change to the definition of “relevant content” which applies for the purposes of Chapter 3 of Part 4 of the Bill (transparency of terms of service etc). The effect of the change is to cover a wider range of ways in which a term of service might indicate that a certain kind of content is not allowed on the service.
“CHAPTER 3ADECEASED CHILD USERSDisclosure of information about use of service by deceased child users
(1) A provider of a relevant service must make it clear in the terms of service what their policy is about dealing with requests from parents of a deceased child for information about the child’s use of the service.(2) A provider of a relevant service must have a dedicated helpline or section of the service, or some similar means, by which parents can easily find out what they need to do to obtain information and updates in those circumstances, and the terms of service must provide details.(3) A provider of a relevant service must include clear and accessible provisions in the terms of service—(a) specifying the procedure for parents of a deceased child to request information about the child’s use of the service,(b) specifying what evidence (if any) the provider will require about the parent’s identity or relationship to the child, and(c) giving sufficient detail to enable child users and their parents to be reasonably certain about what kinds of information would be disclosed and how information would be disclosed. (4) A provider of a relevant service must respond in a timely manner to requests from parents of a deceased child for information about the child’s use of the service or for updates about the progress of such information requests.(5) A provider of a relevant service must operate a complaints procedure in relation to the service that—(a) allows for complaints to be made by parents of a deceased child who consider that the provider is not complying with a duty set out in any of subsections (1) to (4),(b) provides for appropriate action to be taken by the provider of the service in response to such complaints, and(c) is easy to access, easy to use and transparent.(6) A provider of a relevant service must include in the terms of service provisions which are easily accessible specifying the policies and processes that govern the handling and resolution of such complaints.(7) If a person is the provider of more than one relevant service, the duties set out in this section apply in relation to each such service.(8) The duties set out in this section extend only to the design, operation and use of a service in the United Kingdom, and references in this section to children are to children in the United Kingdom.(9) A “relevant service” means—(a) a Category 1 service (see section 86(10)(a));(b) a Category 2A service (see section 86(10)(b));(c) a Category 2B service (see section 86(10)(c)).(10) In this section “parent”, in relation to a child, includes any person who is not the child’s parent but who—(a) has parental responsibility for the child within the meaning of section 3 of the Children Act 1989 or Article 6 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)), or(b) has parental responsibilities in relation to the child within the meaning of section 1(3) of the Children (Scotland) Act 1995.(11) In the application of this section to a Category 2A service, references to the terms of service include references to a publicly available statement.”Member’s explanatory statement
This amendment imposes new duties on providers of Category 1, 2A and 2B services to have a policy about disclosing information to the parents of deceased child users, and providing details about it in the terms of service or a publicly available statement.
“OFCOM’s guidance about duties set out in section (Disclosure of information about use of service by deceased child users)
(1) OFCOM must produce guidance for providers of relevant services to assist them in complying with their duties set out in section (Disclosure of information about use of service by deceased child users).(2) OFCOM must publish the guidance (and any revised or replacement guidance).(3) In this section “relevant service” has the meaning given by section (Disclosure of information about use of service by deceased child users).”Member’s explanatory statement
This amendment requires OFCOM to give guidance to providers about the new duties imposed by the other Clause proposed after Clause 67 in my name.
Member’s explanatory statement
This amendment adds a reference to content to which section 12(2) applies (content to which certain user empowerment duties apply) to paragraph 1 of the transparency reporting Schedule, which allows OFCOM to require providers of user-to-user services to include information in their transparency reports about the incidence of content.
Member’s explanatory statement
This amendment is consequential on the amendment to Clause 211 in my name adding a definition of “pornographic content” to that Clause.
“(2) A duty to ensure, by the use of age verification or age estimation (or both), that children are not normally able to encounter content that is regulated provider pornographic content in relation to the service.(2A) The age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.” Member’s explanatory statement
This amendment requires providers within scope of Part 5 to use highly effective age verification or age estimation (or both) to comply with the duty in Clause 72(2) (preventing children from encountering provider pornographic content).
Member’s explanatory statement
This amendment requires OFCOM’s guidance about the duty in Clause 72(2) to give examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at determining whether or not a user is a child.
“(2A) The guidance may elaborate on the following principles governing the use of age verification or age estimation for the purpose of compliance with the duty set out in section 72(2)—(a) the principle that age verification or age estimation should be easy to use;(b) the principle that age verification or age estimation should work effectively for all users regardless of their characteristics or whether they are members of a certain group; (c) the principle of interoperability between different kinds of age verification or age estimation.(2B) The guidance may refer to industry or technical standards for age verification or age estimation (where they exist).”Member’s explanatory statement
This amendment sets out principles about age verification or age estimation, which are relevant to OFCOM’s guidance to providers about their duty in Clause 72(2).
Member’s explanatory statement
This amendment is consequential on the new Clause proposed to be inserted after Clause 149 in my name expanding OFCOM’s duties to promote media literacy in relation to regulated user-to-user and search services.
Lord Parkinson of Whitley Bay (Con)
My Lords, the amendments in this group relate to provisions for media literacy in the Bill and Ofcom’s existing duty on media literacy under Section 11 of the Communications Act 2003. I am grateful to noble Lords from across your Lordships’ House for the views they have shared on this matter, which have been invaluable in helping us draft the amendments.
Media literacy remains a key priority in our work to tackle online harms; it is essential not only to keep people safe online but for them to understand how to make informed decisions which enhance their experience of the internet. Extensive work is currently being undertaken in this area. Under Ofcom’s existing duty, the regulator has initiated pilot work to promote media literacy. It is also developing best practice principles for platform-based media literacy measures and has published guidance on how to evaluate media literacy programmes.
While we believe that the Communications Act provides Ofcom with sufficient powers to undertake an ambitious programme of media literacy activity, we have listened to the concerns raised by noble Lords and understand the desire to ensure that Ofcom is given media literacy objectives which are fit for the digital age. We have therefore tabled the following amendments seeking to update Ofcom’s statutory duty to promote media literacy, in so far as it relates to regulated services.
Amendment 274B provides new objectives for Ofcom to meet in discharging its duty. The first objective requires Ofcom to take steps to increase the public’s awareness and understanding of how they can keep themselves and others safe when using regulated services, including building the public’s understanding of the nature and impact of harmful content online, such as disinformation and misinformation. To meet that objective, Ofcom will need to carry out, commission or encourage the delivery of activities and initiatives which enhance users’ media literacy in these ways.
It is important to note that, when fulfilling this new objective, Ofcom will need to increase the public’s awareness of the ways in which they can protect groups that disproportionately face harm online, such as women and girls. The updated duty will also compel Ofcom to encourage the development and use of technologies and systems that support users of regulated services to protect themselves and others. Ofcom will be required to publish a statement recommending ways in which others, including platforms, can take action to support their users’ media literacy.
Amendment 274C places a new requirement on Ofcom to publish a strategy setting out how it will fulfil its media literacy functions under Section 11, including the new objectives. Ofcom will be required to update this strategy every three years and report on progress made against it annually to provide assurance that it is fulfilling its duty appropriately. These reports will be supported by the post-implementation review of the Bill, which covers Ofcom’s media literacy duty in so far as it relates to regulated services. This will provide a reasonable point at which to establish the impact of Ofcom’s work, having given it time to take effect.
I am confident that, through this updated duty, Ofcom will be empowered to ensure that internet users become more engaged with media literacy and, as a result, are safer online. I hope that these amendments will find support from across your Lordships’ House, and I beg to move.
Baroness Bull (CB)
My Lords, I welcome this proposed new clause on media literacy and support the amendments in the names of the noble Lords, Lord Clement-Jones and Lord Knight of Weymouth. I will briefly press the Minister on two points. First, proposed new subsection (1C) sets out how Ofcom must perform its duty under proposed new subsection (1A), but it does not explicitly require Ofcom to work in partnership with existing bodies already engaged in and expert in provision of these kinds of activities. The potential for Ofcom to commission is explicit, but this implies quite a top-down relationship, not a collaboration that builds on best practice, enables scale-up where appropriate and generally avoids reinventing wheels. It seems like a wasted opportunity to fast-track delivery of effective programmes through partnership.
My second concern is that there is no explicit requirement to consider the distinct needs of specific user communities. In particular, I share the concerns of disability campaigners and charities that media literacy activities and initiatives need to take into account the needs of people with learning disabilities, autism and mental capacity issues, both in how activities are shaped and in how they are communicated. This is a group of people who have a great need to go online and engage, but we also know that they are at greater risk online. Thinking about how media literacy can be promoted, particularly among learning disability communities, is really important.
The Minister might respond by saying that Ofcom is already covered by the public sector equality duty and so is already obliged to consider the needs of people with protected characteristics when designing and implementing policies. But the unfortunate truth is that the concerns of the learning disability community are an afterthought in legislation compared with other disabilities, which are already an afterthought. The Petitions Committee in the other place, in its report on online abuse and the experience of disabled people, noted that there are multiple disabled people around the country with the skills and experience to advise government and its bodies but that there is a general unwillingness to engage directly with them. They are often described as hard to reach, which is kind of ironic because in fact most of these people use multiple services and so are very easy to reach, because they are on lots of databases and in contact with government bodies all the time.
The Minister may also point out that Ofcom’s duties in the Communications Act require it to maintain an advisory committee on elderly and disabled persons that includes
“persons who are familiar with the needs of persons with disabilities”.
But referring to an advisory committee is not the same as consulting people with disabilities, both physical and mental, and it is especially important to consult directly with people who may have difficulty understanding what is being proposed. Talking to people directly, rather than through an advisory committee, is very much the goal.
Unlike the draft Bill, which had media literacy as a stand-alone clause, the intention in this iteration is to deal with the issue by amending the Communications Act. It may be that in the web of interactions between those two pieces of legislation, my concerns can be set to rest. But I would find it very helpful if the Minister could confirm today that the intention is that media literacy programmes will be developed in partnership with—and build on best practice of—those organisations already delivering in this space and that the organisations Ofcom collaborates with will be fully inclusive of all communities, including those with disabilities and learning disabilities. Only in this way can we be confident that media literacy programmes will meet their needs effectively, both in content and in how they are communicated.
Finally, can the Minister confirm whether Ofcom considers people with lived experience of disability as subject matter experts on disability for the purpose of fulfilling its consultation duties? I asked this question during one of the helpful briefing sessions during the Bill’s progress earlier this year, but I did not get an adequate answer. Can the Minister clarify that for the House today?
Lord Knight of Weymouth (Lab)
My Lords, the Government have moved on this issue, and I very much welcome that. I am grateful to the Minister for listening and for the fact that we now have Section 11 of the Communications Act being brought into the digital age through the Government’s Amendments 274B and 274C. The public can now expect to be informed and educated about content-related harms, reliability and accuracy; technology companies will have to play their part; and Ofcom will have to regularly report on progress, and will commission and partner with others to fulfil those duties. That is great progress.
The importance of this was underscored at a meeting of the United Nations Human Rights Council just two weeks. Nada Al-Nashif, the UN Deputy High Commissioner for Human Rights in an opening statement said that media and digital literacy empowered individuals and
“should be considered an integral part of education efforts”.
Tawfik Jelassi, the assistant director-general of UNESCO, in a statement attached to that meeting, said that
“media and information literacy was essential for individuals to exercise their right to freedom of opinion and expression”—
I put that in to please the noble Baroness, Lady Fox—and
“enabled access to diverse information, cultivated critical thinking, facilitated active engagement in public discourse, combatted misinformation, and safeguarded privacy and security, while respecting the rights of others”.
If only the noble Lord, Lord Moylan, was in his place to hear me use the word privacy. He continued:
“Together, the international community could ensure that media and information literacy became an integral part of everyone’s lives, empowering all to think critically, promote digital well-being, and foster a more inclusive and responsible global digital community”.
I thought those were great words, summarising why we needed to do this.
I am grateful to Members on all sides of the House for the work that they have done on media literacy. Part of repeating those remarks was that this is so much more about empowerment than it is about loading safety on to individuals, as the noble Baroness, Lady Kidron, rightly said in her comments.
Nevertheless, we want the Minister to reflect on a couple of tweaks. Amendment 269C in my name is around an advisory committee being set up within six months and in its first report assessing the need for a code on misinformation. I have a concern that, as the regime that we are putting in place with this Bill comes into place and causes some of the harmful content that people find engaging to be suppressed, the algorithms will go to something else that is engaging, and that something else is likely to be misinformation and disinformation. I have a fear that that will become a growing problem that the regulator will need to be able to address, which is why it should be looking at this early.
Incidentally, that is why the regulator should also look at provenance, as in Amendment 269AA from the noble Lord, Lord Clement-Jones. It was tempting in listening to him to see whether there was an AI tool that could trawl across all the comments that he has made during the deliberations on this Bill to see whether he has quoted the whole of the joint report—but that is a distraction.
My Amendment 269D goes to the need for media literacy on systems, processes and business models, not just on content. Time and again, we have emphasised the need for this Bill to be as much about systems as content. There are contexts where individual, relatively benign pieces of content can magnify if part of a torrent that then creates harm. The Mental Health Foundation has written to many of us to make this point. In the same way that the noble Baroness, Lady Bull, asked about ensuring that those with disability have their own authentic voice heard as these media literacy responsibilities are played out, so the Mental Health Foundation wanted the same kind of involvement from young people; I agree with both. Please can we have some reassurance that this will be very much part of the literacy duties on Ofcom and the obligations it places on service providers?
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to noble Lords for their comments, and for the recognition from the noble Lord, Lord Knight, of the changes that we have made. I am particularly grateful to him for having raised media literacy throughout our scrutiny of this Bill.
His Amendments 269C and 269D seek to set a date by which the establishment of the advisory committee on misinformation and disinformation must take place and to set requirements for its first report. Ofcom recognises the valuable role that the committee will play in providing advice in relation to its duties on misinformation and disinformation, and has assured us that it will aim to establish the committee as soon as is reasonably possible, in recognition of the threats posed by misinformation and disinformation online.
Given the valuable role of the advisory committee, Ofcom has stressed how crucial it will be to have appropriate time to appoint the best possible committee. Seeking to prescribe a timeframe for its implementation risks impeding Ofcom’s ability to run the thorough and transparent recruitment process that I am sure all noble Lords want and to appoint the most appropriate and expert members. It would also not be appropriate for the Bill to be overly prescriptive on the role of the committee, including with regard to its first report, in order for it to maintain the requisite independence and flexibility to give us the advice that we want.
Amendment 269AA from the noble Lord, Lord Clement-Jones, seeks to add advice on content provenance to the duties of the advisory committee. The new media literacy amendments, which update Ofcom’s media literacy duties, already include a requirement for Ofcom to take steps to help users establish the reliability, accuracy and authenticity of content found on regulated services. Ofcom will have duties and mechanisms to be able to advise platforms on how they can help users to understand whether content is authentic; for example, by promoting tools that assist them to establish the provenance of content, where appropriate. The new media literacy duties will require Ofcom to take tangible steps to prioritise the public’s awareness of and resilience to misinformation and disinformation online. That may include enabling users to establish the reliability, accuracy and authenticity of content, but the new duties will not remove content online; I am happy to reassure the noble Baroness, Lady Fox, on that.
The advisory committee is already required under Clause 141(4)(c) to advise Ofcom on its exercise of its media literacy functions, including its new duties relating to content authenticity. The Bill does not stipulate what tools service providers should use to fulfil their duties, but Ofcom will have the ability to recommend in its codes of practice that companies use tools such as provenance technologies to identify manipulated media which constitute illegal content or content that is harmful to children, where appropriate. Ofcom is also required to take steps to encourage the development and use of technologies that provide users with further context about content that they encounter online. That could include technologies that support users to establish content provenance. I am happy to reassure the noble Lord, Lord Clement-Jones, that the advisory committee will already be required to advise on the issues that he has raised in his amendment.
On media literacy more broadly, Ofcom retains its overall statutory duty to promote media literacy, which remains broad and non-prescriptive. The new duties in this Bill, however, are focused specifically on harm; that is because the of nature of the Bill, which seeks to make the UK the safest place in the world to be online and is necessarily focused on tackling harms. To ensure that Ofcom succeeds in the delivery of these new specific duties with regard to regulated services, it is necessary that the regulator has a clearly defined scope. Broadening the duties would risk overburdening Ofcom by making its priorities less clear.
The noble Baroness, Lady Bull—who has been translated to the Woolsack while we have been debating this group—raised media literacy for more vulnerable users. Under Ofcom’s existing media literacy programme, it is already delivering initiatives to support a range of users, including those who are more vulnerable online, such as people with special educational needs and people with disabilities. I am happy to reassure her that, in delivering this work, Ofcom is already working not just with expert groups including Mencap but with people with direct personal experiences of living with disabilities.
The noble Lord, Lord Clement-Jones, raised Ofsted. Effective regulatory co-ordination is essential for addressing the crosscutting opportunities and challenges posed by digital technologies and services. Ofsted will continue to engage with Ofcom through its existing mechanisms, including engagement led by its independent policy team and those held with Ofcom’s online safety policy director. In addition to that, Ofsted is considering mechanisms through which it can work more closely with Ofcom where appropriate. These include sharing insights from inspections in an anonymised form, which could entail reviews of its inspection bases and focus groups with inspectors, on areas of particular concern to Ofcom. Ofsted is committed to working with Ofcom’s policy teams to work these plans up in more detail.
Lord McNally (LD)
My Lords, could I ask the Minister a question? He has put his finger on one of the most important aspects of this Bill: how it will integrate with the Department for Education and all its responsibilities for schools. Again, talking from long experience, one of the worries is the silo mentality in Whitehall, which is quite often strongest in the Department for Education. Some real effort will be needed to make sure there is a crossover from the powers that Ofcom has to what happens in the classroom.
Lord Parkinson of Whitley Bay (Con)
I hope what I have said about the way that Ofsted and Ofcom are working together gives the noble Lord some reassurance. He is right, and it is not just in relation to the Department for Education. In my own department, we have discussed in previous debates on media literacy the importance of critical thinking, equipping people with the sceptical, quizzical, analytic skills they need—which art, history and English literature do as well. The provisions in this Bill focus on reducing harm because the Bill is focused on making the UK the safest place to be online, but he is right that media literacy work more broadly touches on a number of government departments.
Amendment 274BA would require Ofcom to promote an understanding of how regulated services’ business models operate, how they use personal data and the operation of their algorithmic systems and processes. We believe that Ofcom’s existing duty under the Communications Act already ensures that the regulator can cover these aspects in its media literacy activities. The duty requires Ofcom to build public awareness of the processes by which material on regulated services is selected or made available. This enables Ofcom to address the platform features specified in this amendment.
The Government’s amendments include extensive new objectives for Ofcom, which apply to harmful ways in which a service is used as well as harmful content. We believe it important not to add further to this duty when the outcomes can already be achieved through the existing duty. We do not wish to limit, by implication, Ofcom’s media literacy duties in relation to other, non-regulated services.
We also judge that the noble Lord’s amendment carries a risk of confusing the remits of Ofcom and the Information Commissioner’s Office. UK data protection law already confers a right for people to be informed about how their personal data are being used, making this aspect of the amendment superfluous.
Lord Clement-Jones (LD)
I do not believe that the Minister has dealt with the minimum standards issue.
Lord Parkinson of Whitley Bay (Con)
I do not think that the noble Lord was listening to that point, but I did.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the opportunity to set out the need for Clauses 158 and 159. The amendments in this group consider the role of government in two specific areas: the power for the Secretary of State to direct Ofcom about its media literacy functions in special circumstances and the power for the Secretary of State to issue non-binding guidance to Ofcom. I will take each in turn.
Amendment 219 relates to Clause 158, on the Secretary of State’s power to direct Ofcom in special circumstances. These include where there is a significant threat to public safety, public health or national security. This is a limited power to enable the Secretary of State to set specific objectives for Ofcom’s media literacy activity in such circumstances. It allows the Secretary of State to direct Ofcom to issue public statement notices to regulated service providers, requiring providers to set out the steps they are taking to address the threat. The regulator and online platforms are thereby compelled to take essential and transparent actions to keep the public sufficiently informed during crises. The powers ensure that the regulatory framework is future-proofed and well equipped to respond in such circumstances.
As the noble Lord, Lord Clement-Jones, outlined, I corresponded with him very shortly before today’s debate and am happy to set out a bit more detail for the benefit of the rest of the House. As I said to him by email, we expect the media literacy powers to be used only in exceptional circumstances, where it is right that the Secretary of State should have the power to direct Ofcom. The Government see the need for an agile response to risk in times of acute crisis, such as we saw during the Covid-19 pandemic or in relation to the war in Ukraine. There may be a situation in which the Government have access to information, through the work of the security services or otherwise, which Ofcom does not. This power enables the Secretary of State to make quick decisions when the public are at risk.
Our expectation is that, in exceptional circumstances, Ofcom would already be taking steps to address harm arising from the provision of regulated services through its existing media literacy functions. However, these powers will allow the Secretary of State to step in if necessary to ensure that the regulator is responding effectively to these sudden threats. It is important to note that, for transparency, the Secretary of State will be required to publish the reasons for issuing a direction to Ofcom in these circumstances. This requirement does not apply should the circumstances relate to national security, to protect sensitive information.
The noble Lord asked why we have the powers under Clause 158 when they do not exist in relation to broadcast media. We believe that these powers are needed with respect to social media because, as we have seen during international crises such as the Covid-19 pandemic, social media platforms can sadly serve as hubs for low-quality, user-generated information that is not required to meet journalistic standards, and that can pose a direct threat to public health. By contrast, Ofcom’s Broadcasting Code ensures that broadcast news, in whatever form, is reported with due accuracy and presented with due impartiality. Ofcom can fine, or ultimately revoke a licence to broadcast in the most extreme cases, if that code is breached. This means that regulated broadcasters can be trusted to strive to communicate credible, authoritative information to their audiences in a way that social media cannot.
Lord Allan of Hallam (LD)
We established in our last debate that the notion of a recognised news publisher will go much broader than a broadcaster. I put it to the Minister that we could end up in an interesting situation where one bit of the Bill says, “You have to protect content from these people because they are recognised news publishers”. Another bit, however, will be a direction to the Secretary of State saying that, to deal with this crisis, we are going to give a media literacy direction that says, “Please get rid of all the content from this same news publisher”. That is an anomaly that we risk setting up with these different provisions.
Baroness Fox of Buckley (Non-Afl)
On the previous group, I raised the issue of legal speech that was labelled as misinformation and removed in the extreme situation of a public health panic. This was seemingly because the Government were keen that particular public health information was made available. Subsequently, we discovered that those things were not necessarily untrue and should not have been removed. Is the Minister arguing that this power is necessary for the Government to direct that certain things are removed on the basis that they are misinformation—in which case, that is a direct attempt at censorship? After we have had a public health emergency in which “facts” have been contested and shown to not be as black and white or true as the Government claimed, saying that the power will be used only in extreme circumstances does not fill me with great confidence.
Lord Parkinson of Whitley Bay (Con)
I am happy to make it clear, as I did on the last group, that the power allows Ofcom not to require platforms to remove content, only to set out what they are doing in response to misinformation and disinformation—to require platforms to make a public statement about what they are doing to tackle it. In relation to regulating news providers, we have brought the further amendments forward to ensure that those subject to sanctions cannot avail themselves of the special provisions in the Bill. Of course, the Secretary of State will be mindful of the law when issuing directions in the exceptional circumstances that these clauses set out.
Lord Clement-Jones (LD)
While the Minister is describing that, can he explain exactly which media literacy power would be invoked by the kind of example I gave when I was introducing the amendment and in the circumstances he has talked about? Would he like to refer to the Communications Act?
Lord Parkinson of Whitley Bay (Con)
It depends on the circumstances. I do not want to give one example for fear of being unnecessarily restrictive. In relation to the health misinformation and disinformation we saw during the pandemic, an example would be the suggestions of injecting oneself with bleach; that sort of unregulated and unhelpful advice is what we have in mind. I will write to the noble Lord, if he wants, to see what provisions of the Communications Act we would want invoked in those circumstances.
In relation to Clause 159, which is dealt with by Amendment 222, it is worth setting out that the Secretary of State guidance and the statement of strategic priorities have distinct purposes and associated requirements. The purpose of the statement of strategic priorities is to enable the Secretary of State to specifically set out priorities in relation to online safety. For example, in the future, it may be that changes in the online experience mean that the Government of the day wish to set out their high-level overarching priorities. In comparison, the guidance allows for clarification of what Parliament and Government intended in passing this legislation—as I hope we will—by providing guidance on specific elements of the Bill in relation to Ofcom’s functions. There are no plans to issue guidance under this power but, for example, we are required to issue guidance to Ofcom in relation to the fee regime.
On the respective requirements, the statement of strategic priorities requires Ofcom to explain in writing what it proposes to do in consequence of the statement and publish an annual review of what it has done. Whereas Ofcom must “have regard” to the guidance, the guidance itself does not create any statutory requirements.
This is a new regime and is different in its nature from other established areas of regulations, such as broadcasting. The power in Clause 159 provides a mechanism to provide more certainty, if that is considered necessary, about how the Secretary of State expects Ofcom to carry out its statutory functions. Ofcom will be consulted before guidance is issued, and there are checks on how often it can be issued and revised. The guidance document itself, as I said, does not create any statutory requirements, so Ofcom is required only to “have regard” to it.
This will be an open and transparent way to put forward guidance appropriately with safeguards in place. The independence of the regulator is not at stake here. The clause includes significant limitations on the power, and the guidance cannot fetter Ofcom’s operational independence. We feel that both clauses are appropriate for inclusion in the Bill, so I hope that the noble Lord will withdraw his amendment.
Lord Clement-Jones (LD)
I thank the Minister for that more extended reply. It is a more reassuring response on Clause 159 than we have had before. On Clause 158, the impression I get is that the media literacy power is being used as a smokescreen for the Government telling social media what it should do, indirectly via Ofcom. That seems extraordinary. If the Government were telling the mainstream media what to do in circumstances like this, we would all be up in arms. However, it seems to be accepted as a part of the Bill and that we should trust the Government. The Minister used the phrase “special circumstances”. That is not the phraseology in the clause; it is that “circumstances exist”, and then it goes on to talk about national security and public health. The bar is very low.
I am sure everyone is getting hungry at this time of day, so I will not continue. However, we still have grave doubts about this clause. It seems an extraordinary indirect form of censorship which I hope is never invoked. In the meantime, I beg leave to withdraw my amendment.
Member’s explanatory statement
Clause 161 is about a review by the Secretary of State of the regulatory framework established by this Bill. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name.
Lord Clement-Jones (LD)
My Lords, clearly, there is a limited number of speakers in this debate. We should thank the noble Lord, Lord Moylan, for tabling this amendment because it raises a very interesting point about the transparency—or not—of the Counter Disinformation Unit. Of course, it is subject to an Oral Question tomorrow as well, which I am sure the noble Viscount will be answering.
There is some concern about the transparency of the activities of the Counter Disinformation Unit. In its report, Ministry of Truth, which deals at some length with the activities of the Counter Disinformation Unit, Big Brother Watch says:
“Giving officials an unaccountable hotline to flag lawful speech for removal from the digital public square is a worrying threat to free speech”.
Its complaint is not only about oversight; it is about the activities. Others such as Full Fact have stressed the fact that there is little or no parliamentary scrutiny. For instance, freedom of information requests have been turned down and Written Questions which try to probe what the activities of the Counter Disinformation Unit are have had very little response. As it says, when the Government
“lobby internet companies about content on their platforms … this is a threat to freedom of expression”.
We need proper oversight, so I am interested to hear the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, the Government share the view of my noble friend Lord Moylan about the importance of transparency in protecting freedom of expression. I reassure him and other noble Lords that these principles are central to the Government’s operational response to addressing harmful disinformation and attempts artificially to manipulate our information environment.
My noble friend and others made reference to the operational work of the Counter Disinformation Unit, which is not, as the noble Baroness, Lady Fox, said, the responsibility of my department but of the Department for Science, Innovation and Technology. The Government have always been transparent about the work of the unit; for example, recently publishing a factsheet on GOV.UK which sets out, among other things, how the unit works with social media companies.
I reassure my noble friend that there are existing processes governing government engagements with external parties and emphasise to him that the regulatory framework that will be introduced by the Bill serves to increase transparency and accountability in a way that I hope reassures him. Many teams across government regularly meet industry representatives on a variety of issues from farming and food to telecoms and digital infrastructure. These meetings are conducted within well-established transparency processes and frameworks, which apply in exactly the same way to government meetings with social media companies. The Government have been open about the fact that the Counter Disinformation Unit meets social media companies. Indeed, it would be surprising if it did not. For example, at the beginning of the Russian invasion of Ukraine, the Government worked with social media companies in relation to narratives which were being circulated attempting to deny incidents leading to mass casualties, and to encourage the promotion of authoritative sources of information. That work constituted routine meetings and was necessary in confirming the Government’s confidence in the preparedness and ability of platforms to respond to new misinformation and disinformation threats.
To require additional reporting on a sector-by-sector or department-by-department basis beyond the standardised transparency processes, as proposed in my noble friend’s amendment, would be a disproportionate and unnecessary response to what is routine engagement in an area where the Government have no greater powers or influence than in others. They cannot compel companies to alter their terms of service; nor can or do they seek to mandate any action on specific pieces of content.
I reassure the noble Baroness, Lady Fox, that the Counter Disinformation Unit does not monitor individual people, nor has it ever done so; rather, it tracks narratives and trends using publicly available information online to protect public health, public safety and national security. It has never tracked the activity of individuals, and there is a blanket ban on referring any content from journalists or parliamentarians to social media performs. The Government have always been clear that the Counter Disinformation Unit refers content for consideration only where an assessment has been made that it is likely to breach the platform’s own terms of service. It has no role in deciding what action, if any, to take in response, which is entirely a matter for the platform concerned.
As I said, the Bill will introduce new transparency, accountability and freedom of expression duties for category 1 services which will make the process for any removal or restriction of user-generated content more transparent by requiring category 1 services to set terms of service which are clear, easy for users to understand and consistently enforced. Category 1 services will be prohibited from removing or restricting user-generated content or suspending or banning users where this does not align with those terms of service. Any referrals from government will not, and indeed cannot, supersede these duties in the Bill.
Although I know it will disappoint my noble friend that another of his amendments has not been accepted, I hope I have been able to reassure him about the Government’s role in these processes. As the noble Lord, Lord Clement-Jones, noted, my noble friend Lord Camrose is answering a Question on this in your Lordships’ House tomorrow, further underlining the openness and parliamentary accountability with which we go about this work. I hope my noble friend will, in a similarly post-prandial mood of generosity, suppress his disappointment and feel able to withdraw his amendment.
Baroness Fox of Buckley (Non-Afl)
Before the Minister sits down, I think that it is entirely appropriate for him to say—I have heard it before—“Oh no, nothing was taken down. None of this is believable. No individuals were targeted”. However, that is not the evidence I have seen, and it might well be that I have been shown misinformation. But that is why the Minister has to acknowledge that one of the problems here is that indicated by Full Fact—which, as we know, is often endorsed by government Ministers as fact-checkers. It says that because the Government are avoiding any scrutiny for this unit, it cannot know. It becomes a “he said, she said” situation. I am afraid that, because of the broader context, it would make the Minister’s life easier, and be clearer to the public—who are, after all, worried about this—if he accepted the ideas in the amendment of the noble Lord, Lord Moylan. We would then be clear and it would be out in the open. If the FOIs and so on that have been constantly put forward were answered, would that not clear it up?
Lord Parkinson of Whitley Bay (Con)
I have addressed the points made by the noble Baroness and my noble friend already. She asks the same question again and I can give her the same answer. We are operating openly and transparently here, and the Bill sets out further provisions for transparency and accountability.
Lord Moylan (Con)
My Lords, I see what my noble friend did there, and it was very cunning. He gave us a very worthwhile account of the activities of the Counter Disinformation Unit, a body I had not mentioned at all, as if the Counter Disinformation Unit was the sole locus of this sort of activity. I had not restricted it to that. We know, in fact, that other bodies within government have been involved in undertaking this sort of activity, and on those he has given us no answer at all, because he preferred to answer about one particular unit. He referred also to its standardised transparency processes. I can hardly believe that I am reading out words such as those. The standardised transparency process allows us all to know that encounters take place but still refuses to let us know what actually happens in any particular encounter, even though there is a great public interest in doing so. However, I will not press it any further.
My noble friend, who is genuinely a friend, is in danger of putting himself, at the behest of civil servants and his ministerial colleagues, in some danger. We know what happens in these cases. The Minister stands at the Dispatch Box and says “This has never happened; it never normally happens; it will not happen. Individuals are never spoken of, and actions of this character are never taken”. Then of course, a few weeks or months later, out pour the leaked emails showing that all these things have been happening all the time. The Minister then has to resign in disgrace and it is all very sad. His friends, like myself, rally round and buy him a drink, before we never see him again.
Anyway, I think my noble friend must be very careful that he does not put himself in that position. I think he has come close to doing so this evening, through the assurances he has given your Lordships’ House. Although I do not accept those assurances, I will none the less withdraw the amendment, with the leave of the House.
(c) an assessment required to be carried out by section (Assessment duties: user empowerment),”Member’s explanatory statement
This amendment ensures that Clause 173, which is about the approach to be taken by providers to judgements about the status of content, applies to assessments under the new Clause proposed after Clause 11 in my name.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate. It is very hard to see where one would want to take it. If it proves anything, it is that the decision to drop the legal but harmful provisions in the Bill was probably taken for the wrong reasons but was the right decision, since this is where we end up—in an impossible moral quandary which no amount of writing, legalistic or otherwise, will get us out of. This should be a systems Bill, not a content Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I start by saying that accurate systems and processes for content moderation are crucial to the workability of this Bill and keeping users safe from harm. Amendment 228 from the noble Lord, Lord Allan of Hallam, seeks to remove the requirement for platforms to treat content as illegal or fraudulent content if reasonable grounds for that inference exist. The noble Lord set out his concerns about platforms over-removing content when assessing illegality.
Under Clause 173(5), platforms will need to have reasonable grounds to determine whether content is illegal or a fraudulent advertisement. Only when a provider has reasonable grounds to infer that said content is illegal or a fraudulent advertisement must it then comply with the relevant requirements set out in the Bill. This would mean removing the content or preventing people from encountering it through risk-based and proportionate systems and processes.
“Time for publishing first guidance under certain provisions of this Act
(1) OFCOM must publish guidance to which this section applies within the period of 18 months beginning with the day on which this Act is passed. (2) This section applies to—(a) the first guidance under section 47(2)(a) (record-keeping and review);(b) the first guidance under section 47(2)(b) (children’s access assessments);(c) the first guidance under section 48(1) (content harmful to children);(d) the first guidance under section 73 (provider pornographic content);(e) the first guidance under section 90(1) (illegal content risk assessments under section 8);(f) the first guidance under section 90(2) (illegal content risk assessments under section 22);(g) the first guidance under section 90(3) (children’s risk assessments);(h) the first guidance under section 140 (enforcement);(i) the first guidance under section 174 relating to illegal content judgements within the meaning of subsection (2)(a) of that section (illegal content and fraudulent advertisements).(3) If OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to guidance mentioned in any of paragraphs (a) to (i) of subsection (2), OFCOM may extend the period in relation to that guidance by up to 12 months by making and publishing a statement.But this is subject to subsection (6).(4) A statement under subsection (3) must set out—(a) the reasons why OFCOM consider that it is necessary to extend the period mentioned in subsection (1) in relation to the guidance concerned, and(b) the period of extension.(5) A statement under subsection (3) may be published at the same time as (or incorporate) a statement under section 38(12) (extension of time to prepare certain codes of practice).(6) But a statement under subsection (3) may not be made in relation to guidance mentioned in a particular paragraph of subsection (2) if—(a) a statement has previously been made under subsection (3) (whether in relation to guidance mentioned in the same or a different paragraph of subsection (2)), or(b) a statement has previously been made under section 38(12).”Member’s explanatory statement
This amendment provides that OFCOM must prepare the first guidance under certain provisions of the Bill within 18 months of Royal Assent, unless they consider a longer period to be necessary in which case OFCOM may (on one occasion only) extend the period and set out why in a published statement.
“(ga) Chapter 3A of Part 4 (deceased child users);”Member’s explanatory statement
Clause 176 is about liability of providers who are individuals. This amendment inserts a reference to Chapter 3A, which is the new Chapter containing the new duties imposed by the Clause proposed after Clause 67 in my name, so that individuals may be jointly and severally liable for the duties imposed by that clause.
Member’s explanatory statement
This amendment is a minor change to ensure consistency of tenses.
Lord Parkinson of Whitley Bay
232: Schedule 17, page 247, line 35, at end insert—
“(ba) section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)), and”
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty in the new clause proposed after Clause 11 in my name to carry out assessments for the purposes of the user empowerment duties in Clause 12(2).
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty inserted in Clause 19 (see the amendments of that Clause proposed in my name) to keep records of the new assessments.
234: Schedule 17, page 248, line 20, at end insert—
“(ea) the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users);”Member’s explanatory statement
This amendment ensures that services already regulated under Part 4B of the Communications Act 2003 (video-sharing platform services) are not required to comply with the new duties imposed by the clause proposed after Clause 67 in my name during the transitional period.
Lord Parkinson of Whitley Bay
236A: After Clause 194, insert the following new Clause—
“Power to regulate app stores
(1) Subject to the following provisions of this section and section (Power to regulate app stores: supplementary), the Secretary of State may by regulations amend any provision of this Act to make provision for or in connection with the regulation of internet services that are app stores.
(2) Regulations under this section may not be made before OFCOM have published a report under section (OFCOM’s report about use of app stores by children)(report about use of app stores by children).
(3) Regulations under this section may be made only if the Secretary of State, having considered that report, considers that there is a material risk of significant harm to an appreciable number of children presented by either of the following, or by both taken together—
(a) harmful content present on app stores, or
(b) harmful content encountered by means of regulated apps available in app stores.
(4) Before making regulations under this section the Secretary of State must consult—
(a) persons who appear to the Secretary of State to represent providers of app stores,
(b) persons who appear to the Secretary of State to represent the interests of children (generally or with particular reference to online safety matters),
(c) OFCOM,
(d) the Information Commissioner,
(e) the Children’s Commissioner, and
(f) such other persons as the Secretary of State considers appropriate.
(5) In this section and in section (Power to regulate app stores: supplementary)—
“amend” includes repeal and apply (with or without modifications);
“app” includes an app for use on any kind of device, and “app store” is to be read accordingly;
“content that is harmful to children” has the same meaning as in Part 3 (see section 54);
“harmful content” means—
(a) content that is harmful to children,
(b) search content that is harmful to children, and
(c) regulated provider pornographic content;
“regulated app” means an app for a regulated service;
“regulated provider pornographic content” has the same meaning as in Part 5 (see section 70);
“search content” has the same meaning as in Part 3 (see section 51).
(6) In this section and in section (Power to regulate app stores: supplementary) references to children are to children in the United Kingdom.”
Member’s explanatory statement
This amendment provides that the Secretary of State may make regulations amending this Bill so as to bring app stores within its scope. The regulations may not be made until OFCOM have published their report about the use of app stores by children (see the new Clause proposed to be inserted after Clause 147 in my name).
Lord Parkinson of Whitley Bay (Con)
My Lords, we have had some productive discussions on application stores, commonly known as “app stores”, and their role as a gateway for children accessing online services. I am grateful in particular to my noble friend Lady Harding of Winscombe for her detailed scrutiny of this area and the collaborative approach she has taken in relation to it and to her amendments, to which I will turn in a moment. These share the same goals as the amendments tabled in my name in seeking to add evidence-based duties on app stores to protect children.
The amendments in my name will do two things. First, they will establish an evidence base on the use of app stores by children and the role that app stores play in children encountering harmful content online. Secondly, following consideration of this evidence base, the amendments also confer a power on the Secretary of State to bring app stores into scope of the Bill should there be a material risk of significant harm to children on or through them.
On the evidence base, Amendment 272A places a duty on Ofcom to publish a report on the role of app stores in children accessing harmful content on the applications of regulated services. To help build a greater evidence base about the types of harm available on and through different kinds of app stores, the report will consider a broad range of these stores, which could include those available on various devices, such as smartphones, gaming devices and smart televisions. The report will also assess the use and effectiveness of age assurance on app stores and consider whether the greater use of age assurance or other measures could protect children further.
Publication of the report must be two to three years after the child safety duties come into force so as not to interfere with the Bill’s implementation timelines. This timing will also enable the report to take into account the impact of the regulatory framework that the Bill establishes.
Amendment 274A is a consequential amendment to include this report in the Bill’s broader confidentiality provisions, meaning that Ofcom will need to exclude confidential matters—for example, commercially sensitive information—from the report’s publication.
Government Amendments 236A, 236B and 237D provide the Secretary of State with a delegated power to bring app stores into the scope of regulation following consideration of Ofcom’s report. The power will allow the Secretary of State to make regulations putting duties on app stores to reduce the risks of harm presented to children from harmful content on or via app stores. The specific requirements in these regulations will be informed by the outcome of the Ofcom report I have mentioned.
As well as setting out the rules for app stores, the regulations may also make provisions regarding the duties and functions of Ofcom in regulating app stores. This may include information-gathering and enforcement powers, as well as any obligations to produce guidance or codes of practice for app store providers.
By making these amendments, our intention is to build a robust evidence base on the potential risks of app stores for children without affecting the Bill’s implementation more broadly. Should it be found that duties are required, the Secretary of State will have the ability to make robust and comprehensive duties, which will provide further layers of protection for children. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, before speaking to my Amendment 239A, I thank my noble friend the Minister, the Secretary of State and the teams in both the department and Ofcom for their collaborative approach in working to bring forward this group of amendments. I also thank my cosignatories. My noble friend Lady Stowell cannot be in her place tonight but she has been hugely helpful in guiding me through the procedure, as have been the noble Lords, Lord Stevenson, Lord Clement-Jones and Lord Knight, not to mention the noble Baroness, Lady Kidron. It has been a proper cross-House team effort. Even the noble Lord, Lord Allan, who started out quite sceptical, has been extremely helpful in shaping the discussion.
I also thank the NSPCC and Barnardo’s for their invaluable advice and support, as well as Snap and Match—two companies which have been willing to stick their heads above the parapet and challenge suppliers and providers on which they are completely dependent in the shape of the current app store owners, Apple and Google.
I reassure my noble friend the Minister—and everyone else—that I have no intention of dividing the House on my amendment, in case noble Lords were worried. I am simply seeking some reassurance on a number of points where my amendments differ from those tabled by the Government—but, first, I will highlight the similarities.
As my noble friend the Minister has referred to, I am delighted that we have two packages of amendments that in both cases recognise that this was a really significant gap in the Bill as drafted. Ignoring the elements of the ecosystem that sell access to regulated services, decide age guidelines and have the ability to do age assurance was a substantial gap in the framing of the Bill. But we have also recognised together that it is very important that this is an “and” not an “or”—it is not instead of regulating user-to-user services or search but in addition to. It is an additional layer that we can bring to protect children online, and it is very important that we recognise that—and both packages do.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful for the strength of support and echo the tributes that have been paid to my noble friend Lady Harding—the winsome Baroness from Winscombe —for raising this issue and working with us so collaboratively on it. I am particularly glad that we were able to bring these amendments on Report; as she knows, it involved some speedy work by the Bill team and some speedy drafting by the Office of the Parliamentary Counsel, but I am glad that we were able to do it on Report, so that I can take it off my list of things to do over the summer, which was kindly written for me by the noble Lord, Lord Clement-Jones.
My noble friend’s amendments were laid before the Government’s, so she rightly asked a couple of questions on where they slightly differ. Her amendment seeks to ensure that other websites or online marketplaces that allow users to download apps are also caught by these duties. I reassure her that the Government’s amendments would capture these types of services. We have intentionally not provided detail about what constitutes an app store to ensure that the Bill remains future-proof. I will say a bit more about that in a moment. Regulations made by the Secretary of State under this power will be able to specify thresholds for which app stores are in scope, giving clarity to providers and users about the application of the duties.
On questions of definition, we are intentionally choosing not to define app stores in these amendments. The term is generally understood as meaning a service that makes applications available, which means that the Secretary of State will be able to impose duties on any such service. Any platform that enables apps to be downloaded can therefore be considered an app store for the purpose of this duty, regardless of whether or not it calls itself one. Regulations will clearly set out which providers are in scope of the duties. The ability to set threshold conditions will also ensure that any duties capture only those that pose the greatest risk of children accessing harmful content.
We touched on the long-running debate about content and functionality. We have made our position on that clear; it will be caught by references to content. I am conscious that we will return to this on Wednesday, when we will have a chance to debate it further.
On timing, as I said, I am glad that we were able to bring these amendments forward at this stage. The publication date for Ofcom’s report is to ensure that Ofcom can prioritise the implementation of the child safety duties and put in place the Bill’s vital protections for children before turning to its research on app stores.
That timing also allows the Secretary of State to base his or her decision on commencement on the effectiveness of the existing framework and to use the research of Ofcom’s report to set out a more granular approach to issues such as risk assessment and safety duties. It is necessary to await the findings of Ofcom’s report before those duties are commenced.
To the questions posed by the noble Baroness, Lady Kidron, and others about the consultation for that report by Ofcom, we expect Ofcom to consult widely and with all relevant parties when producing its report. We do not believe that there is a need for a specific list of consultees given Ofcom’s experience and expertise in this area as well as the great experience it will have through its existing enforcement and wider consultation requirements. In addition, the Secretary of State, before making regulations, will be required to consult a range of key parties, such as the Children’s Commissioner and the Information Commissioner, and those who represent the interests of children, as well as providers of app stores. That can include children themselves.
On the questions asked by the noble Lord, Lord Knight, on loot boxes, he is right that this piece of work is being led by my department. We want to see the games industry take the lead in strengthening protections for children and adults to mitigate the risk of harms. We are pursuing that through a DCMS-led technical working group, and we will publish an update on progress in the coming months. I again express my gratitude to my noble friend Lady Harding and other noble Lords who have expressed their support.
“Power to regulate app stores: supplementary
(1) In this section (except in subsection (4)(c)) “regulations” means regulations under section (Power to regulate app stores)(1).(2) Provision may be made by regulations only for or in connection with the purposes of minimising or mitigating the risks of harm to children presented by harmful content as mentioned in section (Power to regulate app stores)(3)(a) and (b).(3) Regulations may not have the effect that any body other than OFCOM is the regulator in relation to app stores.(4) Regulations may—(a) make provision exempting specified descriptions of app stores from regulation under this Act;(b) make provision amending Part 2, section 49 or Schedule 1 in connection with provision mentioned in paragraph (a);(c) make provision corresponding or similar to provision which may be made by regulations under paragraph 1 of Schedule 11 (“threshold conditions”), with the effect that only app stores which meet specified conditions are regulated by this Act.(5) Regulations may make provision having the effect that app stores provided from outside the United Kingdom are regulated by this Act (as well as app stores provided from within the United Kingdom), but, if they do so, must contain provision corresponding or similar to section 3(5) and (6)(UK links).(6) The provision that may be made by regulations includes provision—(a) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of Part 3 services by—(i) section 10 or 11 (children’s online safety: user-to-user services) or any of sections 16 to 19 so far as relating to section 10 or 11;(ii) section 24 or 25 (children’s online safety: search services) or any of sections 26 to 29 so far as relating to section 24 or 25;(b) imposing on providers of app stores duties corresponding or similar to duties imposed on providers of internet services within section 71(2) by section 72 (duties about regulated provider pornographic content);(c) imposing on providers of app stores requirements corresponding or similar to requirements imposed on providers of regulated services by, or by OFCOM under, Part 6 (fees); (d) imposing on OFCOM duties in relation to app stores corresponding or similar to duties imposed in relation to Part 3 services by Chapter 3 of Part 7 (OFCOM’s register of risks, and risk profiles);(e) conferring on OFCOM functions in relation to app stores corresponding or similar to the functions that OFCOM have in relation to regulated services under—(i) Chapter 4 of Part 7 (information), or(ii) Chapter 6 of Part 7 (enforcement), including provisions of that Chapter conferring power for OFCOM to impose monetary penalties;(f) about OFCOM’s production of guidance or a code of practice relating to any aspect of the regulation of app stores that is included in the regulations.(7) The provision that may be made by regulations includes provision having the effect that app stores fall within the definition of “Part 3 service” or “regulated service” for the purposes of specified provisions of this Act (with the effect that specified provisions of this Act which apply in relation to Part 3 services or regulated services, or to providers of Part 3 services or regulated services, also apply in relation to app stores or to providers of app stores).(8) Regulations may not amend or make provision corresponding or similar to—(a) Chapter 2 of Part 4 (reporting CSEA content),(b) Chapter 5 of Part 7 (notices to deal with terrorism content and CSEA content), or(c) Part 10 (communications offences).(9) Regulations may make different provision with regard to app stores of different kinds.(10) In this section “specified” means specified in regulations.”Member’s explanatory statement
This amendment makes provision about the purpose and contents of regulations to regulate app stores which may be made by the Secretary of State under the preceding new Clause proposed to be inserted in my name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 12th July 2023
(10 months, 1 week ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III(b) Amendments for Report (Supplementary to the Third Marshalled List) - (12 Jul 2023)
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the amendments in this group consider regulatory accountability and the roles of Ofcom, the Government and Parliament in overseeing the new framework. The proposals include altering the powers of the Secretary of State to direct Ofcom, issue guidance to Ofcom and set strategic priorities. Ofcom’s operational independence is key to the success of this framework, but the regime must ensure that there is an appropriate level of accountability to government. Parliament will also have important functions, in particular scrutinising and approving the codes of practice which set out how platforms can comply with their duties and providing oversight of the Government’s powers.
I heard the strength of feeling expressed in Committee that the Bill’s existing provisions did not get this balance quite right and have tabled amendments to address this. Amendments 129, 134 to 138, 142, 143, 146 and 147 make three important changes to the power for the Secretary of State to direct Ofcom to modify a draft code of practice. First, these amendments replace the public policy wording in Clause 39(1)(a) with a more defined list of reasons for which the Secretary of State can make a direction. This list comprises: national security, public safety, public health and the UK’s international obligations. This is similar to the list set out in a Written Ministerial Statement made last July but omits “economic policy” and “burden to business”.
This closely aligns the reasons in the Bill with the existing power in Section 5 of the Communications Act 2003. The power is limited to those areas genuinely beyond Ofcom’s remit as a regulator and where the Secretary of State might have access to information or expertise that the regulator does not. Secondly, the amendments clarify that the power will be used only for exceptional reasons. As noble Lords know, this has always been our intent and the changes we are tabling today put this beyond doubt. Thirdly, the amendments increase the transparency regarding the use of the power by requiring the Secretary of State to publish details of a direction at the time the power is used. This will ensure that Parliament has advance sight of modifications to a code and I hope will address concerns that several directions could be made on a single code before Parliament became aware.
This group also considers Amendments 131 to 133, which create an 18-month statutory deadline for Ofcom to submit draft codes of practice to the Secretary of State to be laid in Parliament relating to illegal content, safety duties protecting children and other cross-cutting duties. These amendments sit alongside Amendment 230, which we debated on Monday and which introduced the same deadline for Ofcom’s guidance on Part 5 of the regime.
I am particularly grateful to my noble friend Lady Stowell of Beeston, with whom I have had the opportunity to discuss these amendments in some detail as they follow up points that she and the members of her committee gave particular attention to. I beg to move.
Baroness Stowell of Beeston (Con)
My Lords, I will speak to the amendments in this group in my name: Amendments 139, 140, 144 and 145. I thank the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Viscount, Lord Colville, for signing those amendments and for their continued support on this group. I am also grateful to my noble friend the Minister and his team for engaging with me on the issue of Secretary of State powers. He has devoted a lot of time and energy to this, which is reflected in the wide- ranging group of amendments tabled by him.
Before I go any further, it is worth emphasising that the underlying concern here is making sure that we have confidence, through this new regulation regime, that the Bill strikes the right balance of power between government, Parliament, the regulator and big tech firms. The committee that I chair—the Communications and Digital Select Committee of your Lordships’ House—has most focused on that in our consideration of the Bill. I should say also that the amendments I have brought forward in my name very much have the support of the committee as well.
These amendments relate to Clause 39, which is where the main issue lies in the context of Secretary of State powers, and we have three broad concerns. First, as it stood, the Bill handed the Secretary of State unprecedented powers to direct the regulator on pretty much anything. Secondly, these powers allowed the Government to conduct an infinite form of ping-pong with the regulator, enabling the Government to prevail in a dispute. Thirdly, this ping-pong could take place in private with no possibility of parliamentary oversight or being able to intervene, as would be appropriate in the event of a breakdown in the relationship between executive and regulator.
This matters because the Online Safety Bill creates a novel form for regulating the internet and what we can or cannot see online, in particular political speech, and it applies to the future. It is one thing for the current Government, who I support, to say that they would never use the powers in this way. That is great but, as we know, current Governments cannot speak for whoever is in power in the generations to come, so it is important that we get this right.
As my noble friend said, he has brought forward amendments to Clause 39 that help to address this. I support him in and commend him for that. The original laundry list of powers to direct Ofcom has been shortened and now follows the precedent set out in the Communications Act 2003. The government amendments also say that the Secretary of State must now publish their directions to Ofcom, which will improve transparency, and once the code is agreed Ofcom will publish changes so that Parliament can see what changes have been made and why. These are all very welcome and, as I say, they go a long way to addressing some of our concerns, but two critical issues remain.
First, the Government retain an opt-out, which means that they do not have to publish their directions if the Secretary of State believes that doing so would risk
“national security or public safety”,
or international relations. However, those points are now the precise grounds on which the Secretary of State may issue a direction and, if history is any guide, there is a real risk that we will never hear about the directions because the Government have decided that they are a security issue.
My Amendments 139 and 140 would require the Secretary of State to at least notify Parliament of the fact that a direction has been issued and what broad topic it relates to. That would not require any details to be published, so it does not compromise security, but it does give assurance that infinite, secretive ping-pong is not happening behind the scenes. My noble friend spoke so quickly at the beginning that I was not quite sure whether he signalled anything, but I hope that he may be able to respond enthusiastically to Amendments 139 and 140.
Secondly, the Government still have powers for infinite ping-pong. I appreciate that the Government have reservations about capping the number of exchanges between the Secretary of State and Ofcom, but they must also recognise the concern that they appear to be preparing the ground for any future Government to reject infinitely the regulator’s proposals and therefore prevail in a dispute about a politically contentious topic. My Amendments 144 and 145 would clarify that the Government will have a legally binding expectation that they will use no more than the bare minimum number of directions to achieve the intent set out in their first direction.
The Government might think that adding this to the Bill is superfluous, but it is necessary in order to give Parliament and the public confidence about the balance of power in this regime. If Parliament felt that the Secretary of State was acting inappropriately, we would have sufficient grounds to intervene. As I said, the Government acknowledged in our discussions the policy substance of these concerns, and as we heard from my noble friend the Minister in introducing this group, there is an understanding on this. For his part, there is perhaps a belief that what they have done goes far enough. I urge him to reconsider Amendments 144 and 145, and I hope that, when he responds to the debate on this group, he can say something about not only Amendments 139 and 140 but the other two amendments that will give me some grounds for comfort.
Baroness Merron (Lab)
My Lords, first, I have to say that, having read Hansard from last Thursday, I feel I should have drawn attention to my interests in the register that relate to the Jewish community. I apologise for not doing so at the time and am pleased to now put this on the record.
I will be brief, as noble Lords have already raised a number of very pertinent points, to which I know the Minister will want to respond. In this group of amendments, there is a very welcome focus on transparency, accountability and the role of Parliament, all of which are absolutely crucial to the success of the Bill. I am grateful to the Minister for his introduction and explanation of the impact of the proposed changes to the role of the Secretary of State and Ofcom, whose codes of practice will be, as the noble Viscount, Lord Colville, said, vitally important to the Bill. We very much welcome the amendments in the name of the noble Baroness, Lady Stowell, which identify the requirements of the Secretary of State. We also welcome the government amendments, which along with the amendments by the noble Baroness, have been signed by my noble friend Lord Stevenson.
The amendments tabled in the name of the noble Lord, Lord Moylan, raise interesting points about the requirement to use the affirmative procedure, among other points. I look forward to the Minister’s response to that and other amendments. It would be helpful to hear from the Minister his thoughts on arrangements for post-legislative scrutiny. It would also be helpful to deliberations to understand whether there have been discussions on this between the usual channels.
Lord Parkinson of Whitley Bay (Con)
My Lords, this is indeed an apposite day to be discussing ongoing ping-pong. I am very happy to speak enthusiastically and more slowly about my noble friend Lady Stowell of Beeston’s Amendments 139 and 140. We are happy to support those, subject to some tidying up at Third Reading. We agree with the points that she has made and are keen to bring something forward which would mean broadly that a statement would be laid before Parliament when the power to direct had been used. My noble friend Lady Harding characterised them as the infinite ping-pong question and the secretive ping-pong question; I hope that deals with the secretive ping-pong point.
My noble friend Lady Stowell’s other amendments focus on the infinite ping-pong question, and the power to direct Ofcom to modify a code. Her Amendments 139, 140, 144 and 145 seek to address those concerns: that the Secretary of State could enter into a private form of ping-pong with Ofcom, making an unlimited number of directions on a code to prevent it from ever coming before Parliament. Let me first be clear that we do not foresee that happening. As the amendments I have spoken to today show, the power can be used only when specific exceptional reasons apply. In that sense, we agree with the intent of the amendments tabled by my noble friend Lady Stowell. However, we cannot accept them as drafted because they rely on concepts— such as the “objective” of a direction—which are not consistent with the procedure for making a direction set out in the Bill.
The amendments I have brought forward mean that private ping-pong between the Secretary of State and Ofcom on a code is very unlikely to happen. Let me set out for my noble friend and other noble Lords why that is. The Secretary of State would need exceptional reasons for making any direction, and the Bill then requires that the code be laid before Parliament as soon as is reasonably practicable once the Secretary of State is satisfied that no further modifications to the draft are required. That does not leave room for the power to be used inappropriately. A code could be delayed in this way and in the way that noble Lords have set out only if the Secretary of State could show that there remained exceptional reasons once a code had been modified. This test, which is a very high bar, would need to be met each time. Under the amendments in my name, Parliament would also be made aware straightaway each time a direction was made, and when the modified code came before Parliament, it would now come under greater scrutiny using the affirmative procedure.
I certainly agree with the points that the noble Lord, Lord Allan, and others made that any directions should be made in as transparent a way as possible, which is why we have tabled these amendments. There may be some circumstances where the Secretary of State has access to information—for example, from the security services—the disclosure of which would have an adverse effect on national security. In our amendments, we have sought to retain the existing provisions in the Bill to make sure that we strike the right balance between transparency and protecting national security.
As the noble Lord mentioned, the Freedom of Information Act provides an additional route to transparency while also containing existing safeguards in relation to national security and other important areas. He asked me to think of an example of something that would be exceptional but not require that level of secrecy. By dropping economic policy and burden to business, I would point him to an example in those areas, but a concrete example evades me this afternoon. Those are the areas to which I would turn his attention.
Lord Allan of Hallam (LD)
Can the Minister confirm that the fact that a direction has been made will always be known to the public, even if the substance of it is not because it is withheld under the secrecy provision? In other words, will the public always have a before and after knowledge of the fact of the direction, even if its substance is absent?
Lord Parkinson of Whitley Bay (Con)
Yes; that is right.
I hope noble Lords will agree that the changes we have made and that I have outlined today as a package mean that we have reached the right balance in this area. I am very grateful to my noble friend Lady Stowell —who I see wants to come in—for the time that she too has given this issue, along with members of her committee.
Baroness Stowell of Beeston (Con)
I am grateful to my noble friend for his constructive response to my Amendments 139 and 140. I am sure he will do me the honour of allowing me to see the Government’s reversioning of my amendments before they are laid so that we can be confident at Third Reading that they are absolutely in line with expectations.
Could I press my noble friend a little further on Amendments 144 and 145? As I understood what he said, the objection from within government is to the language in the amendments I have tabled—although as my noble friend Lady Harding said, they are incredibly modest in their nature.
I was not sure whether my noble friend was saying in his defence against accepting them that issuing a direction would have to be exceptional, and that that led to a need to clarify that this would be ongoing. Would each time there is a ping or a pong be exceptional? Forgive me, because it starts to sound a bit ridiculous when we get into this amount of detail, but it seems to me that the “exceptional” issue kicks in at the point where you issue the direction. Once you engage in a dialogue, “exceptional” is no longer really the issue. It is an odd defence against trying to limit the number of times you allow that dialogue to continue. Bearing in mind that he is willing to look again at Amendments 139 and 140, I wonder whether, between now and Third Reading, he would at least ask parliamentary counsel to look again at the language in my original amendment.
Lord Parkinson of Whitley Bay (Con)
I am certainly happy to commit to showing my noble friend the tidying up we think necessary of the two amendments I said we are happy to accept ahead of Third Reading. On the others, as I said, the code could be delayed repeatedly only if the Secretary of State showed that there remained exceptional reasons once it had been modified, and that high bar would need to be met each time. So we do not agree with her Amendments 14 and 145 because of concerns about the drafting of my noble friend’s current amendment and because the government amendments we have brought forward cater for the scenario about which she is concerned. Her amendments would place a constraint on the Secretary of State not to give more directions than are necessary to achieve the objectives set out in the original direction, but they would not achieve the intent I think my noble friend has. The Bill does not require the direction to have a particular objective. Directions are made because the Secretary of State believes that modifications are necessary for exceptional reasons, and the direction must set out the reasons why the Secretary of State believes that a draft should be modified.
Through the amendments the Government have laid today, the direction would have to be for exceptional reasons relating to a narrower list and Parliament would be made aware each time a direction was made. Parliament would also have increased scrutiny in cases where a direction had been made under Clause 39(1)(a), because of the affirmative procedure. However, I am very happy to keep talking to my noble friend, as we will be on the other amendments, so we can carry on our conversation then if she wishes.
Let me say a bit about the amendments tabled by my noble friend Lord Moylan. His Amendment 218 would require the draft statement of strategic priorities laid before Parliament to be approved by resolution of each House. As we discussed in Committee, the statement of strategic priorities is necessary because future technological changes are likely to shape harms online, and the Government must have an avenue through which to state their strategic priorities in relation to these emerging technologies.
The Bill already requires the Secretary of State to consult Ofcom and other appropriate persons when preparing a statement. This provides an opportunity for consideration and scrutiny of a draft statement, including, for example, by committees of Parliament. This process, combined with the negative procedure, provides an appropriate level of scrutiny and is in line with comparable existing arrangements in the Communications Act in relation to telecommunications, the management of radio spectrum and postal services.
My noble friend’s other amendments would place additional requirements on the Secretary of State’s power to issue non-binding guidance to Ofcom about the exercise of its online safety functions. The guidance document itself does not create any statutory requirements —Ofcom is required only to have regard to the guidance —and on that basis, we do not agree that it is necessary to subject it to parliamentary approval as a piece of secondary legislation. As my noble friend Lady Harding of Winscombe pointed out, we do not require that in numerous other areas of the economy, and we do not think it necessary here.
Let me reassure my noble friend Lord Moylan on the many ways in which Parliament will be able to scrutinise the work of Ofcom. Like most other regulators, it is accountable to Parliament in how it exercises its functions. The Secretary of State is required to present its annual report and accounts before both Houses. Ministers from the devolved Administrations must also lay a copy of the report before their respective Parliament or Assembly. Ofcom’s officers can be required to appear before Select Committees to answer questions about its work; indeed, its chairman and chief executive appeared before your Lordships’ Communications and Digital Committee just yesterday. Parliament will also have a role in approving a number of aspects of the regulatory framework through its scrutiny of both primary and secondary legislation.
Lord Clement-Jones (LD)
My Lords, the key question is this: why have these powers over social media when the Secretary of State does not have them over broadcast?
Lord Parkinson of Whitley Bay (Con)
If I may, I will write to the noble Lord having reflected on that question further. We are talking here about the provisions set up in the Bill to deal with online harms; clearly, that is the focus here, which is why this Bill deals with that. I will speak to colleagues who look at other areas and respond further to the noble Lord’s question.
Let me reassure the noble Baroness, Lady Fox, that, through this Bill, both Ofcom and providers are being asked to have regard to freedom of expression. Ofcom already has obligations under the Human Rights Act to be bound by the European Convention on Human Rights, including Article 10 rights relating to freedom of expression. Through this Bill, user-to-user and search services will have to consider and implement safeguards for freedom of expression when fulfilling their duties. Those points are uppermost in our minds.
I am grateful for the support expressed by noble Lords for the government amendments in this group. Given the mixed messages of support and the continued work with my noble friend Lady Stowell of Beeston, I urge her not to move her amendments.
Member’s explanatory statement
This amendment is consequential on the amendment inserting new subsections (9) to (13) into this Clause in my name.
“(A1) The Secretary of State may direct OFCOM to modify a draft of a code of practice submitted under section 38(1) if the Secretary of State believes that modifications are required for the purpose of securing compliance with an international obligation of the United Kingdom.(B1) The Secretary of State may direct OFCOM to modify a draft of a code of practice, other than a terrorism or CSEA code of practice, submitted under section 38(1) if the Secretary of State believes that modifications are required for exceptional reasons relating to—(a) national security,(b) public safety,(c) public health, or(d) relations with the government of a country outside the United Kingdom.”Member’s explanatory statement
This amendment (together with other amendments to this Clause in my name) sets out the circumstances in which the Secretary of State can direct OFCOM to modify a draft of a code of practice.
(c) must be published, except where the Secretary of State considers that doing so would have the effect mentioned in paragraph (b).”Member’s explanatory statement
This amendment requires a direction given under Clause 39 to be published except in cases where the Secretary of State considers that to do so would be against the interests of national security, public safety or relations with the government of a country outside the United Kingdom.
“(ca) publish the document, and”Member’s explanatory statement
This amendment requires OFCOM to publish a document submitted to the Secretary of State in response the Secretary of State giving a direction under this Clause.
Member’s explanatory statement
This amendment is consequential on the amendments made to Clause 39 in my name.
“(A1) OFCOM must produce guidance for providers of Category 1 services to assist them in complying with their duties set out in section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)).”Member’s explanatory statement
This amendment requires OFCOM to produce guidance to assist providers of Category 1 services in carrying out their assessments as required by the new Clause proposed after Clause 11 in my name.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.
“OFCOM’s guidance about protecting women and girls
(1) OFCOM must produce guidance for providers of Part 3 services which focuses on content and activity—(a) in relation to which such providers have duties set out in this Part or Part 4, and(b) which disproportionately affects women and girls.(2) The guidance may, among other things—(a) contain advice and examples of best practice for assessing risks of harm to women and girls from content and activity mentioned in subsection (1), and for reducing such risks;(b) refer to provisions contained in a code of practice under section 36 which are particularly relevant to the protection of women and girls from such content and activity.(3) Before producing the guidance (including revised or replacement guidance), OFCOM must consult—(a) the Commissioner for Victims and Witnesses,(b) the Domestic Abuse Commissioner, and(c) such other persons as OFCOM consider appropriate.(4) OFCOM must publish the guidance (and any revised or replacement guidance).”Member’s explanatory statement
This new Clause requires OFCOM to produce and publish a guidance document focusing on online content and activity which disproportionately affects women and girls.
Lord Parkinson of Whitley Bay (Con)
My Lords, as we discussed in Committee, the Bill contains strong protection for women and girls and places duties on services to tackle and limit the kinds of offences and online abuse that we know disproportionately affect them. His Majesty’s Government are committed to ensuring that women and girls are protected online as well as offline. I am particularly grateful to my noble friend Lady Morgan of Cotes for the thoughtful and constructive way in which she has approached ensuring that the provisions in the Bill are as robust as possible.
It is with my noble friend’s support that I am therefore pleased to move government Amendment 152. This will create a new clause requiring Ofcom to produce guidance that summarises, in one clear place, measures that can be taken to tackle the abuse that women and girls disproportionately face online. This guidance will relate to regulated user-to-user and search services and will cover content regulated under the Bill’s frame- work. Crucially, it will summarise the measures in the Clause 36 codes for Part 3 duties, namely the illegal and child safety duties. It will also include a summary of platforms’ relevant Part 4 duties—for example, relevant terms of service and reporting provisions. This will provide a one-stop shop for providers.
Providers that adhere to the codes of practice will continue to be compliant with the duties. However, this guidance will ensure that it is easy and clear for platforms to implement holistic and effective protections for women and girls across their various duties. Any company that says it is serious about protecting women and girls online will, I am sure, refer to this guidance when implementing protections for its users.
Ofcom will have the flexibility to shape the guidance in a way it deems most effective in protecting women and girls online. However, as outlined in this amendment, we expect that it will include examples of best practice for assessing risks of harm to women and girls from content and activity, and how providers can reduce these risks and emphasise provisions in the codes of practice that are particularly relevant to the protection of women and girls.
To ensure that this guidance is effective and makes a difference, the amendment creates a requirement on Ofcom to consult the Domestic Abuse Commissioner and the Victims’ Commissioner, among other people or organisations it considers appropriate, when it creates this guidance. Much like the codes of practice, this will ensure that the views and voices of experts on the issue, and of women, girls and victims, are reflected. This amendment will also require Ofcom to publish this guidance.
I am grateful to all the organisations that have worked with us and with my noble friend Lady Morgan to get to this point. I hope your Lordships will accept the amendment. I beg to move.
Baroness Morgan of Cotes (Con)
My Lords, I will speak very briefly to this amendment; I know that the House is keen to get on to other business today. I very much welcome the amendment that the Government have tabled. My noble friend the Minister has always said that they want to keep women and girls safe online. As has been referred to elsewhere, the importance of making our digital streets safer cannot be overestimated.
As my noble friend said, women and girls experience a disproportionate level of abuse online. That is now recognised in this amendment, although this is only the start, not the end, of the matter. I thank my noble friend and the Secretary of State for their engagement on this issue. I thank the chief executive and the chair of Ofcom. I also thank the noble Baroness, Lady Kidron, the right reverend Prelate the Bishop of Gloucester, who I know cannot be here today, and the noble Lord, Lord Knight, who signed the original amendment that we discussed in Committee.
My noble friend has already talked about the campaigners outside the Chamber who wanted there to be specific mention of women and girls in the Bill. I thank Refuge, the 100,000 people who signed the End Violence Against Women coalition’s petition, BT, Glitch, Carnegie UK, Professor Lorna Woods, the NSPCC and many others who made the case for this amendment.
As my noble friend said, this is Ofcom guidance. It is not necessarily a code of practice, but it is still very welcome because it is broader than just the specific offences that the Government have legislated on, which I also welcome. As he said, this puts all the things that companies, platforms and search engines should be doing to protect women and girls online in one specific place. My noble friend mentioned holistic protection, which is very important.
There is no offline/online distinction these days. Women and girls should feel safe everywhere. I also want to say, because I know that my noble friend has had a letter, that this is not about saying that men and boys should not be safe online; it is about recognising the disproportionate levels of abuse that women and girls suffer.
I welcome the fact that, in producing this guidance, Ofcom will have to consult with the Domestic Abuse Commissioner and the Victims’ Commissioner and more widely. I look forward, as I am sure do all the organisations I just mentioned, to working with Ofcom on the first set of guidance that it will produce. It gives me great pleasure to have signed the amendment and to support its introduction.
Baroness Merron (Lab)
My Lords, this very positive government amendment acknowledges that there is not equality when it comes to online abuse. We know that women are 27 times more likely than men to be harassed online, that two-thirds of women who report abuse to internet companies do not feel heard, and three out of four women change their behaviour after receiving online abuse.
Like others, I am very glad to have added my name to support this amendment. I thank the Minister for bringing it before your Lordships’ House and for his introduction. It will place a requirement on Ofcom to produce and publish guidance for providers of Part 3 services in order to make online spaces safer for women and girls. As the noble Baroness, Lady Morgan, has said, while this is not a code of practice—and I will be interested in the distinction between the code of practice that was being called for and what we are expecting now—it would be helpful perhaps to know when we might expect to see it. As the noble Baroness, Lady Burt, just asked, what kind of timescale is applicable?
This is very much a significant step for women and girls, who deserve and seek specific protections because of the disproportionate amount of abuse received. It is crucial that the guidance take a holistic approach which focuses on prevention and tech accountability, and that it is as robust as possible. Can the Minister say whether he will be looking to the model of the Violence against Women and Girls Code of Practice, which has been jointly developed by a number of groups and individuals including Glitch, the NSPCC, 5Rights and Refuge? It is important that this be got right, that we see it as soon as possible and that all the benefits can be felt and seen.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to everyone for the support they have expressed for this amendment both in the debate now and by adding their names to it. As I said, I am particularly grateful to my noble friend Lady Morgan, with whom we have worked closely on it. I am also grateful for her recognition that men and boys also face harm online, as she rightly points out. As we discussed in Committee, this Bill seeks to address harms for all users but we recognise that women and girls disproportionately face harm online. As we have discussed with the noble Baroness, Lady Merron, women and girls with other characteristics such as women of colour, disabled women, Jewish women and many others face further disproportionate harm and abuse. I hope that Amendment 152 demonstrates our commitment to giving them the protection they need, making it easy and clear for platforms to implement protections for them across all the wide-ranging duties they have.
The noble Baroness, Lady Burt of Solihull, asked why it was guidance and not a code of practice. Ofcom’s codes of practice will set out how companies can comply with the duties and will cover how companies should tackle the systemic risks facing women and girls online. Stipulating that Ofcom must produce specific codes for multiple different issues could, as we discussed in Committee, create duplication between the codes, causing confusion for companies and for Ofcom.
As Ofcom said in its letter to your Lordships ahead of Report, it has already started the preparatory work on the draft illegal content and child sexual abuse and exploitation codes. If it were required to create a separate code relating to violence against women and girls, this preparatory work would need to be revised, so there would be the unintended—and, I think, across the House, undesired—consequence of slowing down the implementation of these vital protections. I am grateful for the recognition that we and Ofcom have had on that point.
Instead, government Amendment 152 will consolidate all the relevant measures across codes of practice, such as on illegal content, child safety and user empowerment, in one place, assisting platforms to reduce the risk of harm that women and girls disproportionately face.
On timing, at present Ofcom expects that this guidance will be published in phase 3 of the implementation of the Bill, which was set out in Ofcom’s implementation plan of 15 June. This is when the duties in Part 4 of the Bill, relating to terms of service and so on, will be implemented. The guidance covers the duties in Part 4, so for guidance to be comprehensive and have the most impact in protecting women and girls, it is appropriate for it to be published during phase 3 of the Bill’s implementation.
The noble Baroness, Lady Fox, mentioned the rights of trans people and the rights of people to express their views. As she knows, gender reassignment and religious or philosophical belief are both protected characteristics under the Equality Act 2010. Sometimes those are in tension, but they are both protected in the law.
With gratitude to all the noble Lords who have expressed their support for it, I commend the amendment to the House.
Baroness Fox of Buckley (Non-Afl)
The Minister did not quite grasp what I said but I will not keep the House. Would he be prepared to accept recommendations for a broader consultation—or who do I address them to? It is important that groups such as the Women’s Rights Network and others, which suffer abuse because they say “I know what a woman is”, are talked to in a discussion on women and abuse, because that would be appropriate.
Lord Parkinson of Whitley Bay (Con)
I am sorry—yes, the noble Baroness made a further point on consultation. I want to reassure her and other noble Lords that Ofcom has the discretion to consult whatever body it considers appropriate, alongside the Victims’ Commissioner, the Domestic Abuse Commissioner and others who I mentioned. Those consultees may not all agree. It is important that Ofcom takes a range of views but is able to consult whomever. As I mentioned previously, Ofcom and its officers can be scrutinised in Parliament through Select Committees and in other ways. The noble Baroness could take it up directly with them but could avail herself of those routes for parliamentary scrutiny if she felt that her pleas were falling on deaf ears.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this; it is important. Clause 49(3)(a)(i) mentions content
“generated directly on the service by a user”,
which, to me, implies that it would include the actions of another user in the metaverse. Sub-paragraph (ii) mentions content
“uploaded to or shared on the service by a user”,
which covers bots or other quasi-autonomous virtual characters in the metaverse. As we heard, a question remains about whether any characters or objects provided by the service itself are covered.
A scenario—in my imagination anyway—would be walking into an empty virtual bar at the start of a metaverse service. This would be unlikely to be engaging: the attractions of indulging in a lonely, morose drink at that virtual bar are limited. The provider may therefore reasonably configure the algorithm to generate characters and objects that are engaging until enough users then populate the service to make it interesting.
Of course, there is the much more straightforward question of gaming platforms. On Monday, I mentioned “Grand Theft Auto”, a game with an advisory age of 17—they are still children at that age—but that is routinely accessed by younger children. Shockingly, an article that I read claimed that it can evolve into a pornographic experience, where the player becomes the character from a first-person angle and received services from virtual sex workers, as part of the game design. So my question to the Minister is: does the Bill protect the user from these virtual characters interacting with users in virtual worlds?
Lord Parkinson of Whitley Bay (Con)
I will begin with that. The metaverse is in scope of the Bill, which, as noble Lords know, has been designed to be technology neutral and future-proofed to ensure that it keeps pace with emerging technologies—we have indeed come a long way since the noble Lord, Lord Clement-Jones, the noble Lords opposite and many others sat on the pre-legislative scrutiny committee for the Bill. Even as we debate, we envisage future technologies that may come. But the metaverse is in scope.
The Bill will apply to companies that enable users to share content online or to interact with each other, as well as search services. That includes a broad range of services, such as websites, applications, social media services, video games and virtual reality spaces, including the metaverse.
Any service that enables users to interact, as the metaverse does, will need to conduct a child access test and will need to comply with the child safety duties—if it is likely to be accessed by children. Content is broadly defined in the Bill as,
“anything communicated by means of an internet service”.
Where this is uploaded, shared or directly generated on a service by a user and able to be encountered by other users, it will be classed as user-generated content. In the metaverse, this could therefore include things like objects or avatars created by users. It would also include interactions between users in the metaverse such as chat—both text and audio—as well as images, uploaded or created by a user.
Lord Clement-Jones (LD)
My Lords, I hope I am not interrupting the Minister in full flow. He has talked about users entirely. He has not yet got to talking about what happens where the provider is providing that environment—in exactly the way in which the noble Lord, Lord Knight, illustrated.
Lord Parkinson of Whitley Bay (Con)
We talked about bots controlled by service providers before the noble Lord, Lord Knight, asked questions on this. The Bill is designed to make online service providers responsible for the safety of their users in light of harmful activities that their platforms might facilitate. Providers of a user-to-user service will need to adhere to their duties of care, which apply to all user-generated content present on their service. The Bill does not, however, regulate content published by user-to-user providers themselves. That is because the providers are liable for the content they publish on the service themselves. The one exception to this—as the noble Baroness, Lady Kidron, alluded to in her contribution—is pornography, which poses a particular risk to children and is regulated by Part 5 of the Bill.
I am pleased to reassure the noble Lord, Lord Clement- Jones, that the Bill—
Baroness Kidron (CB)
I thank the noble Lord for giving way. The Minister just said that private providers will be responsible for their content. I would love to understand what mechanism makes a provider responsible for their content?
Lord Parkinson of Whitley Bay (Con)
I will write to noble Lords with further information and will make sure that I have picked up correctly the questions that they have asked.
On Amendment 152A, which the noble Lord, Lord Clement-Jones, has tabled, I am pleased to assure him that the Bill already achieves the intention of the amendment, which seeks to add characters and objects that might interact with users in the virtual world to the Bill’s definition of user-generated content. Let me be clear again: the Bill already captures any service that facilitates online user-to-user interaction, including in the metaverse or other augmented reality or immersive online worlds.
The Bill broadly defines “content” as
“anything communicated by means of an internet service”,
so it already captures the various ways in which users may encounter content. Clause 211 makes clear that “encounter” in relation to content for the purposes of the Bill means to,
“read, view, hear or otherwise experience”
content. That definition extends to the virtual worlds which noble worlds have envisaged in their contributions. It is broad enough to encompass any way of encountering content, whether that be audio-visually or through online avatars or objects.
In addition, under the Bill’s definition of “functionality”,
“any feature that enables interactions of any description between users of the service”
will be captured. That could include interaction between avatars or interaction by means of an object in a virtual world. All in-scope services must therefore consider a range of functionalities as part of their risk assessment and must put in place any necessary measures to mitigate and manage any risks that they identify.
I hope that that provides some assurance to the noble Lord that the concerns that he has raised are covered, but I shall happily write on his further questions before we reach the amendment that the noble Baroness, Lady Finlay, rightly flagged in her contribution.
Lord Clement-Jones (LD)
I thank the Minister. I feel that we have been slightly unfair because we have been asking questions about an amendment that we have not been able to table. The Minister has perfectly well answered the actual amendment itself and has given a very positive reply—and in a sense I expected him to say what he said about the actual amendment. But, of course, the real question is about an amendment that I was unable to table.
Member’s explanatory statement
This amendment, and the next two amendments in my name, make it clear that an automated tool which is not a bot - as well as a bot - may be regarded as a user for the purposes of the definition of “user-generated content”.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment revises the definition of “news publisher content” so that, in particular, online content published by a recognised news publisher that has not first been broadcast is covered by the definition.
Lord Parkinson of Whitley Bay (Con)
My Lords, as noble Lords know, His Majesty’s Government are committed to defending the invaluable role of a free media, and our online safety legislation must protect the vital role of the press in providing people with reliable and accurate information online. That is why we have included strong protections for recognised news publishers in the Bill.
Clause 49(9) and (10) set out what is considered “news publisher content” in relation to a regulated user-to-user service, while Clause 52 sets out that news publishers’ content is exempt from search services’ duties. The government amendments clarify minor elements of these exemptions and definitions. Given the evolving consumption habits for news, recognised news publishers might clip or edit content from their published or broadcast versions to cater to different audiences and platforms. We want to ensure that recognised news publisher content is protected in all its forms, as long as that content is created or generated by the news publishers themselves.
First, our amendments clarify that any video or audio content published or broadcast by recognised news publishers will be exempt from the Bill’s safety duties and will benefit from the news publisher appeals process, when shared on platforms in scope of the Bill. These amendments ensure that old terminology works effectively in the internet age. The amendments now also make it clear that any news publisher content that is clipped or edited by the publisher itself will qualify for the Bill’s protections when shared by third parties on social media. However, these protections will not apply when a third-party user modifies that content itself. This will ensure that the protections do not apply to news publisher content that has been edited by a user in a potentially harmful way.
The amendments make it clear that the Bill’s protections apply to links to any article, video or audio content generated by recognised news publishers, clipped or edited, and regardless of the form in which that content was first published or broadcast. Taken together, these amendments ensure that our online safety legislation protects recognised news publishers’ content as intended. I hope noble Lords will support them. I beg to move.
Lord Parkinson of Whitley Bay (Con)
I reassure the noble Lord, Lord Stevenson, that he was right to sign the amendments; I am grateful that he did. I do not know whether it is possible to have a sense of déjà vu about debates that took place before one entered your Lordships’ House, but if so, I feel I have had it over the past hour. I am, however, glad to see the noble Lords, Lord Lipsey and Lord McNally, back in their places and that they have had the chance to express their views, which they were unable to do fully in Committee. I am grateful to noble Lords who have joined in that debate again.
At present, Amendment 159 would enable news publishers that are members of Impress, the sole UK regulator which has sought approval by the Press Recognition Panel, to benefit from the Bill’s protections for news publishers, without meeting the criteria set out in Clause 50(2). This would introduce a legislative advantage for Impress members over other news publishers. The amendment would, in effect, create strong incentives for publishers to join a specific press regulator. We do not consider that to be compatible with our commitment to a free press. To that end, as noble Lords know, we will repeal existing legislation that could have that effect, specifically Section 40 of the Crime and Courts Act 2013, through the media Bill, which was published recently.
Not only is creating an incentive for a publisher to join a specific regulator incompatible with protecting press freedom in the United Kingdom but it would undermine the aforementioned criteria. These have been drafted to be as robust as possible, with requirements including that organisations have publication of news as their principal purpose, that they are subject to a standards code and that their content is created by different persons. Membership of Impress, or indeed any other press regulator, does not and should not automatically ensure that these criteria are met.
Amendment 160 goes further by amending one of these criteria—specifically, the requirement for entities to be subject to a standards code. It would add the requirement that these standards codes be drawn up by a regulator, such as a body such as Impress. This amendment would create further incentives for news publishers to join a press regulator if they are to benefit from the exclusion for recognised news publishers. This is similarly not compatible with our commitment to press freedom.
We believe the criteria set out in Clause 50 of the Bill are already sufficiently strong, and we have taken significant care to ensure that only established news publishers are captured, while limiting the opportunity for bad actors to benefit.
The noble Lord, Lord Allan, asked about protections against that abuse by bad actors. The Bill includes protections for journalism and news publishers, given the importance of a free press in a democratic society. However, it also includes safeguards to prevent the abuse of these protections by bad actors. Platforms will still be able to remove recognised news publisher content that breaches their terms and conditions as long as they notify recognised news publishers and offer a right of appeal first. This means that content will remain online while the appeal is considered, unless it constitutes a relevant offence under the Bill or the platform would incur criminal or civil liability by hosting it. This marks a significant improvement on the status quo whereby social media companies can remove journalistic content with no accountability and little recourse for journalists to appeal.
We are clear that sanctioned news outlets such as RT must not benefit from these protections. We are amending the criteria for determining which entities qualify as recognised news publishers explicitly to exclude entities that are subject to sanctions. The criteria also exclude any entity that is a proscribed organisation under the Terrorism Act 2000 or whose purpose is to support an organisation that is proscribed under that Act. To require Ofcom or another party to assess standards would be to introduce press regulation by the back door.
The noble Baroness, Lady Fox of Buckley, asked about protecting clipped or edited content. Given evolving news consumption habits, recognised news publishers may clip or edit content from their published or broadcast versions to cater to different audiences and to be used on different platforms. We want to ensure recognised news publisher content is protected in all its forms as long as that content is still created or generated by the news publisher. For example, if a broadcaster shares a link to its shorter, online-only version of a long-form TV news programme or documentary on an in-scope platform, this should still benefit from the protections that the Bill affords. The amendment that we have brought forward ensures that this content and those scenarios remain protected but removes the risk of platforms being forced to carry news publisher content that has been edited by a third party potentially to cause harm. I hope that clarifies that.
I am grateful to the noble Lord, Lord Lipsey, for making it clear that he does not intend to press his amendments to a Division, so I look forward to that. I am also grateful for the support for the Government’s amendments in this group.
“(ii) is video or audio content that was originally published or broadcast by a recognised news publisher, and is not a clipped or edited form of such content (unless it is the recognised news publisher who has clipped or edited it), or(iii) is a link to an article or item within sub-paragraph (i) or to content within sub-paragraph (ii).”Member’s explanatory statement
This amendment ensures that, in particular, online content published by a recognised news publisher that has not first been broadcast is included in the list of content which does not count as search content for the purposes of the Bill.
Member’s explanatory statement
This technical amendment ensures that the new Clauses proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content and priority content harmful to children apply for the purposes of Part 3 of the Bill.
““Primary priority content that is harmful to children”
(1) “Primary priority content that is harmful to children” means content of any of the following kinds. (2) Pornographic content, other than content within subsection (6).(3) Content which encourages, promotes or provides instructions for suicide.(4) Content which encourages, promotes or provides instructions for an act of deliberate self-injury.(5) Content which encourages, promotes or provides instructions for an eating disorder or behaviours associated with an eating disorder.(6) Content is within this subsection if it—(a) consists only of text, or(b) consists only of text accompanied by—(i) identifying content which consists only of text,(ii) other identifying content which is not itself pornographic content,(iii) a GIF which is not itself pornographic content,(iv) an emoji or other symbol, or(v) any combination of content mentioned in sub-paragraphs (i) to (iv).(7) In this section and section (“Priority content that is harmful to children”) “injury” includes poisoning.”Member’s explanatory statement
This amendment describes which kinds of content count as primary priority content harmful to children for the purposes of Part 3 of the Bill.
““Priority content that is harmful to children”
(1) “Priority content that is harmful to children” means content of any of the following kinds.(2) Content which is abusive and which targets any of the following characteristics—(a) race,(b) religion,(c) sex,(d) sexual orientation,(e) disability, or(f) gender reassignment.(3) Content which incites hatred against people—(a) of a particular race, religion, sex or sexual orientation,(b) who have a disability, or(c) who have the characteristic of gender reassignment.(4) Content which encourages, promotes or provides instructions for an act of serious violence against a person.(5) Bullying content.(6) Content which—(a) depicts real or realistic serious violence against a person;(b) depicts the real or realistic serious injury of a person in graphic detail.(7) Content which—(a) depicts real or realistic serious violence against an animal;(b) depicts the real or realistic serious injury of an animal in graphic detail;(c) realistically depicts serious violence against a fictional creature or the serious injury of a fictional creature in graphic detail. (8) Content which encourages, promotes or provides instructions for a challenge or stunt highly likely to result in serious injury to the person who does it or to someone else.(9) Content which encourages a person to ingest, inject, inhale or in any other way self-administer—(a) a physically harmful substance;(b) a substance in such a quantity as to be physically harmful.(10) In subsections (2) and (3)—(a) “disability” means any physical or mental impairment;(b) “race” includes colour, nationality, and ethnic or national origins;(c) references to religion include references to a lack of religion.(11) For the purposes of subsection (3), a person has the characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex, and the reference to gender reassignment in subsection (2) is to be construed accordingly.(12) For the purposes of subsection (5) content may, in particular, be “bullying content” if it is content targeted against a person which—(a) conveys a serious threat;(b) is humiliating or degrading;(c) forms part of a campaign of mistreatment.(13) In subsection (6) “person” is not limited to a real person.(14) In subsection (7) “animal” is not limited to a real animal.”Member’s explanatory statement
This amendment describes which kinds of content count as priority content harmful to children for the purposes of Part 3 of the Bill.
Member’s explanatory statement
This amendment omits Clause 55 (regulations describing kinds of content harmful to children), as the kinds of content are now set out in the Bill - see the new Clauses proposed to be inserted after Clause 54 in my name.
Member’s explanatory statement
This amendment and the next two amendments in my name omit references to regulations which are no longer needed, as primary priority content and priority content harmful to children are now set out in the new Clauses proposed to be inserted after Clause 54 in my name, not in regulations.
“(2A) The regulations may also—(a) require providers to retain, for a specified period, data of a specified description associated with a report, and(b) impose restrictions or requirements in relation to the retention of such data (including how the data is to be secured or stored or who may access the data).(2B) The power to require the retention of data associated with a report includes power to require the retention of—(a) content generated, uploaded or shared by any user mentioned in the report (or metadata relating to such content), and(b) user data relating to any such person (or metadata relating to such data).“User data” here has the meaning given by section 206.” Member’s explanatory statement
This amendment provides that regulations under this Clause may require a provider to retain data associated with a report sent to the NCA and impose restrictions or requirements in relation to the retention of the data.
Lord Parkinson of Whitley Bay (Con)
My Lords, child sexual exploitation or abuse is an abhorrent crime. Reporting allows victims to be identified and offenders apprehended. It is vital that in-scope companies retain the data included in reports made to the National Crime Agency. This will enable effective prosecutions and ensure that children can be protected.
The amendments in my name in this group will enable the Secretary of State to include in the regulations about the reporting of child sexual exploitation or abuse content a requirement for providers to retain data. This requirement will be triggered only by a provider making a report of suspected child sexual exploitation or abuse to the National Crime Agency. The provider will need to retain the data included in the report, along with any associated account data. This is vital to enabling prosecutions and to ensuring that children can be protected, because data in reports cannot be used as evidence. Law enforcement agencies request this data only when they have determined that the content is in fact illegal and that it is necessary to progress investigations.
Details such as the types of data and the period of time for which providers must retain this data will be specified in regulations. This will ensure that the requirement is future-proofed against new types of data and will prevent companies retaining types of data that may have become obsolete. The amendments will also enable regulations to include any necessary safeguards in relation to data protection. However, providers will be expected to store, process and share this personal data within the UK GDPR framework.
Regulations about child sexual exploitation or abuse reporting will undergo a robust consultation with relevant parties and will be subject to parliamentary scrutiny. This process will ensure that the regulations about retaining data will be well-informed, effective and fit for purpose. These amendments bring the child sexual exploitation and abuse reporting requirements into line with international standards. I beg to move.
Lord Allan of Hallam (LD)
My Lords, these seem very sensible amendments. I am curious about why they have arrived only at this stage, given this was a known problem and that the Bill has been drafted over a long period. I am genuinely curious as to why this issue has been raised only now.
On the substance of the amendments, it seems entirely sensible that, given that we are now going to have 20,000 to 25,000 regulated entities in scope, some of which will never have encountered child sexual exploitation or abuse material or understood that they have a legal duty in relation to it, it will be helpful for them to have a clear set of regulations that tell them how to treat their material.
Child sexual exploitation or abuse material is toxic in both a moral and a legal sense. It needs to be treated almost literally as toxic material inside a company, and sometimes that is not well understood. People feel that they can forward material to someone else, not understanding that in doing so they will break the law. I have had experiences where well-meaning people acting in a vigilante capacity sent material to me, and at that point you have to report them to police. There are no ifs or buts. They have committed an offence in doing so. As somebody who works inside a company, your computer has to be quarantined and taken off and cleaned, just as it would be for any other toxic material, because we framed the law, quite correctly, to say that we do not want to offer people the defence of saying “I was forwarding this material because I’m a good guy”. Forwarding the material is a strict liability offence, so to have regulations that explain, particularly to organisations that have never dealt with this material, exactly how they have to deal with it in order to be legally compliant will be extremely helpful.
One thing I want to flag is that there are going to be some really fundamental cross-border issues that have to be addressed. In many instances of child sexual exploitation or abuse material, the material has been shared between people in different jurisdictions. The provider may not be in a UK jurisdiction, and we have got to avoid any conflicts of laws. I am sure the Government are thinking about this, but in drafting those regulations, what we cannot do, for example, is order a provider to retain data in a way that would be illegal in the jurisdiction from which it originates or in which it has its headquarters. The same would apply vice versa. We would not expect a foreign Government to order a UK company to act in a way that was against UK law in dealing with child sexual exploitation or abuse material. This all has to be worked out. I hope the Government are conscious of that.
I think the public interest is best served if the United Kingdom, the United States and the European Union, in particular, adopt common standards around this. I do not think there is anything between us in terms of how we would want to approach child sexual exploitation or abuse material, so the extent to which we end up having common legal standards will be extraordinarily helpful.
As a general matter, to have regulations that help companies with their compliance is going to be very helpful. I am curious as to how we have got there with the amendment only at this very late stage.
Lord Knight of Weymouth (Lab)
My Lords, from this side we certainly welcome these government amendments. I felt it was probably churlish to ask why it had taken until this late stage to comply with international standards, but that point was made very well by the noble Lord, Lord Allan of Hallam, and I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their support for these amendments and for their commitment, as expected, to ensuring that we have the strongest protections in the Bill for children.
The noble Lord, Lord Allan of Hallam, asked: why only now? It became apparent during the regular engagement that, as he would expect, the Government have with the National Crime Agency on issues such as this that this would be necessary, so we are happy to bring these amendments forward. They are vital amendments to enable law enforcement partners to prosecute offenders and keep children safe.
Reports received by the National Crime Agency are for intelligence only and so cannot be relied on as evidence. As a result, in some cases law enforcement agencies may be required to request that companies provide data in an evidential format. The submitted report will contain a limited amount of information from which law enforcement agencies will have to decide what action to take. Reporting companies may hold wider data that relate to the individuals featured in the report, which could allow law enforcement agencies to understand the full circumstances of the event or attribute identities to the users of the accounts.
The data retention period will provide law enforcement agencies with the necessary time to decide whether it is appropriate to request data in order to continue their investigations. I hope that explains the context of why we are doing this now and why these amendments are important ones to add to the Bill. I am very grateful for noble Lords’ support for them.
Member’s explanatory statement
This amendment is consequential on the other amendment to Clause 60 in my name.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 10th July 2023
(10 months, 1 week ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III Third marshalled list for Report - (10 Jul 2023)
Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by user-to- user service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, as I set out in Committee, the Government are bringing forward a package of amendments to address the challenges that bereaved parents and coroners have faced when seeking to access data after the death of a child.
These amendments have been developed after consultation with those who, so sadly, have first-hand experience of these challenges. I thank in particular the families of Breck Bednar, Sophie Parkinson, Molly Russell, Olly Stephens and Frankie Thomas for raising awareness of the challenges they have faced when seeking access to information following the heartbreaking cases involving their children. I am also grateful to the noble Baroness, Lady Kidron, for championing this issue in Parliament and more widely. I am very happy to say that she is supporting the government amendments in this group.
The loss of any life is heartbreaking, but especially so when it involves a child. These amendments will create a more straightforward and humane process for accessing data and will help to ensure that parents and coroners receive the answers they need in cases where a child’s death may be related to online harms. We know that coroners have faced challenges in accessing relevant data from online service providers, including information about a specific child’s online activity, where that might be relevant to an investigation or inquest. It is important that coroners can access such information.
As such, I turn first to Amendments 246, 247, 249, 250, 282, 283 and 287, which give Ofcom an express power to require information from regulated services about a deceased child’s online activity following a request from a coroner. This includes the content the child had viewed or with which he or she had engaged, how the content came to be encountered by the child, the role that algorithms and other functionalities played, and the method of interaction. It also covers any content that the child generated, uploaded or shared on the service.
Crucially, this power is backed up by Ofcom’s existing enforcement powers, so that, where a company refuses to provide information requested by Ofcom, companies may be subject to enforcement action, including senior management liability. To ensure that there are no barriers to Ofcom sharing information with coroners, first, Amendment 254 enables Ofcom to share information with a coroner without the prior consent of a business to disclose such information. This will ensure that Ofcom is free to provide information it collects under its existing online safety functions to coroners, as well as information requested specifically on behalf of a coroner, where that might be useful in determining whether social media played a part in a child’s death.
Secondly, coroners must have access to online safety expertise, given the technical and fast-moving nature of the industry. As such, Amendment 273 gives Ofcom a power to produce a report dealing with matters relevant to an investigation or inquest, following a request from a coroner. This may include, for example, information about a company’s systems and processes, including how algorithms have promoted specific content to a child. To this end, the Chief Coroner’s office will consider issuing non-statutory guidance and training for coroners about social media as appropriate, subject to the prioritisation of resources. We are confident that this well-established framework provides an effective means to provide coroners with training on online safety issues.
It is also important that we address the lack of transparency from large social media services about their approach to data disclosure. Currently, there is no common approach to this issue, with some services offering memorialisation or contact-nomination processes, while others seemingly lack any formal policy. To tackle this, a number of amendments in this group will require the largest services—category 1, 2A and 2B services—to set out policies relating to the disclosure of data regarding the online activities of a deceased child in a clear, accessible and sufficiently detailed format in their terms of service. These companies will also be required to provide a written response to data requests in a timely manner and must provide a dedicated helpline, or similar means, for parents to communicate with the company, in order to streamline the process. This will address the painful radio silence experienced by many bereaved parents. The companies must also offer options so that parents can complain when they consider that a platform is not meeting its obligations. These must be easy to access, easy to use and transparent.
The package of amendments will apply not only to coroners in England and Wales but also to Northern Ireland and equivalent investigations in Scotland, where similar sad events have occurred.
The Government will also address other barriers which are beyond the scope of this Bill. For example, we will explore measures to introduce data rights for bereaved parents who wish to request information about their deceased children through the Data Protection and Digital Information Bill. We are also working, as I said in Committee, with our American counterparts to clarify and, where necessary, address unintended barriers to information sharing created by the United States Stored Communications Act. I beg to move.
Baroness Kidron (CB)
My Lords, I thank the Minister and indeed the Secretary of State for bringing forward these amendments in the fulsome manner that they have. I appreciate it, but I know that Bereaved Families for Online Safety also appreciates it. The Government committed to bringing forward these amendments on the last day in Committee, so they have been pre-emptively welcomed and discussed at some length. One need only read through Hansard of 22 June to understand the strength of feeling about the pain that has been caused to families and the urgent need to prevent others experiencing the horror faced by families already dealing with the loss of their child.
I will speak briefly on three matters only. First, I must once again thank bereaved families and colleagues in this House and in the other place for their tireless work in pressing this issue. This is one of those issues that does not allow for celebration. As I walked from the Chamber on 22 June, I asked one of the parents how they felt. They said: “It is too late for me”. It was not said in bitterness but in acknowledgement of their profound hurt and the failure of companies voluntarily to do what is obvious, moral and humane. I ask the Government to see the sense in the other amendments that noble Lords brought forward on Report to make children safer, and make the same, pragmatic, thoughtful solution to those as they have done on this group of amendments. It makes a huge difference.
Secondly, I need to highlight just one gap; I have written to the Secretary of State and the Minister on this. I find it disappointing that the Government did not find a way to require senior management to attend an inquest to give evidence. Given that the Government have agreed that senior managers should be subject to criminal liability under some circumstances, I do not understand their objections to summoning them to co-operate with legal proceedings. If a company submits information in response to Ofcom and at the coroner’s request the company’s senior management is invited to attend the inquest, it makes sense that someone should be required to appear to answer and follow up those questions. Again, on behalf of the bereaved families and specifically their legal representatives, who are very clear on the importance of this part of the regime, I ask the Government to reconsider this point and ask the Minister to undertake to speak to the department and the MoJ, if necessary, to make sure that, if senior managers are asked to attend court, they are mandated to do so.
Thirdly, I will touch on the additional commitments the Minister made beyond the Bill, the first of which is the upcoming Data Protection and Digital Information Bill. I am glad to report that some of the officials working on the Bill have already reached out, so I am grateful to the Minister that this is in train, but I expect it to include guidance for companies that will, at a minimum, cover data preservation orders and guidance about the privacy of other users in cases where a child has died. I think that privacy for other users is central to this being a good outcome for everybody, and I hope we are able to include that.
I am pleased to hear about the undertaking with the US regarding potential barriers, and I believe—and I would love to hear from the Minister—that the objective is to make a bilateral agreement that would allow data to be shared between the two countries in the case of a child’s death. It is very specific requirement, not a wide-ranging one. I believe, if we can do it on a bilateral basis, it would be easier than a broad attempt to change the data storage Act.
I turn finally to training for coroners. I was delighted that the Chief Coroner made a commitment to consider issuing non-legislative guidance and training on social media for coroners and the offer of consultation with experts, including Ofcom, the ICO and bereaved families and their representatives, but this commitment was made subject to funding. I ask the Minister to agree to discuss routes to funding from the levy via Ofcom’s digital literacy duty. I have proposed an amendment to the government amendment that would make that happen, but I would welcome the opportunity to discuss it with the Minister. Coroners must feel confident in their understanding of the digital world, and I am concerned that giving this new route to regulated companies via Ofcom without giving them training on how to use it may create a spectre of failure or further frustration and distress for bereaved families. I know there is not a person in the House who would want that to be the outcome of these welcome government amendments.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the recognition of the work that has been done here, led by the noble Baroness, Lady Kidron, but involving many others, including officials who have worked to bring this package forward.
Noble Lords took the opportunity to ask a number of questions. The noble Baroness, Lady Kidron, asked about senior management liability. Ofcom will have extensive enforcement powers at its disposal if service providers do not comply with its information requests issued on behalf of a coroner. The powers will include the ability to hold senior managers criminally liable for non-compliance. Those powers are in line with Ofcom’s existing information-gathering powers in the Bill. Where Ofcom has issued an information request to a company, that company may be required to name a senior manager who is responsible for ensuring compliance with the requirements of the notice. If the named senior manager is found to have failed to comply with that information notice, or has failed to take all reasonable steps to prevent a failure to comply with the notice, that individual will be held personally liable and could be subject to imprisonment.
On the point about them not appearing in court, coroners have well-established powers to require senior managers to attend court. The enforcement powers available to Ofcom are in line with Ofcom’s existing information-gathering powers in the Bill. They do not extend to Ofcom requiring senior managers to appear in court as part of a coronial investigation. We do not think that would be appropriate for Ofcom, given that the coroner’s existing remit already covers this. The noble Baroness raised many specific instances that had come to her attention, and if she has specific examples of people not attending court that she would like to share with us and the Ministry of Justice, of course we would gladly follow those up.
The noble Lord, Lord Knight, rightly mentioned my noble friend Lady Newlove. I can reassure him that I have discussed this package of amendments with her, and had the benefit of her experience as a former Victims’ Commissioner.
On the training for coroners, which is an issue she raised, as did the noble Baroness, Lady Kidron, in her remarks just now, the Chief Coroner for England and Wales has statutory responsibility for maintaining appropriate arrangements for the training of coroners. That is of course independent of government, and exercised through the Judicial College, but the training is mandatory and the Chief Coroner is aware of the issues we are debating now.
The noble Lords, Lord Allan of Hallam and Lord Knight of Weymouth, raised the helpline for parents. Yes, we expect our approach of requiring a dedicated helpline or similar means will involve a human. As we say, we want a more humane process for those who need to use it; we think it would be more effective than requiring a company to provide a named individual contact. We touched on this briefly in Committee, where the point was raised, understandably, about staff turnover or people being absent on leave—that a requirement for a named individual could hinder the contact which families need to see there.
The noble Lord, Lord Allan, also asked some questions about deaths of people other than a child. First, Ofcom’s report in connection with investigations into a death covers any coronial inquest, not just children. More broadly, of course, social media companies may have their own terms and conditions or policies in place setting out when they will share information after somebody has passed away. Companies based outside the UK may have to follow the laws of the jurisdiction in which they are based, which may limit the sharing of data without a court order. While we recognise the difficulty that refusing to disclose data may cause for bereaved relatives in other circumstances, the right to access must, of course, be balanced with the right to privacy. Some adult social media users may be concerned, for instance, about the thought of family members having access to information about their private life after their deaths, so there is a complexity here, as I know the noble Lord understands.
The noble Baroness, Lady Kidron, asked about data preservation orders. I am very glad that officials from another Bill team are already in touch with her, as they should be. As we set out in Committee, we are aware of the importance of data preservation to coroners and bereaved parents, and the Government agree with the principle of ensuring that those data are preserved. We will work towards a solution through the Data Protection and Digital Information Bill. My noble friend Lord Camrose—who is unable to be with us today, also for graduation reasons—and I will be happy to keep the House and all interested parties updated about our progress in resolving the issue of data preservation as we work through this complex problem.
The noble Lord, Lord Clement-Jones, asked about the Information Commissioner’s Office. We expect Ofcom to consult the ICO on all the guidance where its expertise will be relevant, including on providers’ new duties under these amendments. I am grateful, as I say, for the support that they have had and the recognition that this has been a long process since these issues were first raised in the pre-legislative committee. We believe that it is of the utmost importance that coroners and families can access information about a child’s internet use following a bereavement, and that companies’ responses are made in a humane and transparent way.
This group of amendments should be seen alongside the wider protections for children in the Bill, and I hope they will help bereaved parents to get the closure that they deserve. The noble Lord, Lord Allan, was right to pay tribute to how these parents, who have campaigned so bravely, have turned their grief and frustration into a determination to make sure that no other parents go through the sorts of ordeals that they have. That is both humbling and inspiring, and I am glad that the Bill can help to be a part of the change that they are seeking. I share my noble friend Lady Harding’s wish that it may bring them a modicum of calm. I beg to move.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 25 into two Clauses.
Member’s explanatory statement
This amendment is about complaints of content being blocked because of an incorrect assessment of a user’s age. A reference to Clause 25(2) is inserted, as the duty in that provision can also be complied with by using age verification or age estimation.
and for the purposes of subsection (6), also includes the duties set out in section (Disclosure of information about use of service by deceased child users) (deceased child users).”Member’s explanatory statement
This amendment has the effect that OFCOM have a duty to review compliance by search service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.
Lord Clement-Jones (LD)
My Lords, very briefly, I commend these two amendments. Again, the provenance is very clear; the Joint Committee said:
“This regulatory alignment would simplify compliance for businesses, whilst giving greater clarity to people who use the service, and greater protection to children.”
It suggested that the Information Commissioner’s Office and Ofcom should issue a joint statement on how these two regulatory systems will interact once the Online Safety Bill has been enacted. That still sounds eminently sensible, a year and a half later.
Lord Parkinson of Whitley Bay (Con)
My Lords, Amendments 100 and 101 seek further to define the meaning of “significant” in the children’s access assessment, with the intention of aligning this with the meaning of “significant” in the Information Commissioner’s draft guidance on the age-appropriate design code.
I am grateful to the noble Baroness, Lady Kidron, for the way in which she has set out the amendments and the swiftness with which we have considered it. The test in the access assessment in the Bill is already aligned with the test in the code, which determines whether a service is likely to be accessed by children in order to ensure consistency for all providers. The Information Commissioner’s Office has liaised with Ofcom on its new guidance on the likely to access test for the code, with the intention of aligning the two regulatory regimes while reflecting that they seek to do different things. In turn, the Bill will require Ofcom to consult the ICO on its guidance to providers, which will further support alignment between the tests. So while we agree about the importance of alignment, we think that it is already catered for.
With regard to Amendment 100, Clause 30(4)(a) already states that
“the reference to a ‘significant’ number includes a reference to a number which is significant in proportion to the total number of United Kingdom users of a service”.
There is, therefore, already provision in the Bill for this being a significant number in and of itself.
On Amendment 101, the meaning of “significant” must already be more than insignificant by its very definition. The amendment also seeks to define “significant” with reference to the number of children using a service rather than seeking to define what is a significant number.
I hope that that provides some reassurance to the noble Baroness, Lady Kidron, and that she will be content to withdraw the amendment.
Baroness Kidron (CB)
I am not sure that, at this late hour, I completely understood what the Minister said. On the basis that we are seeking to align, I will withdraw my amendment, but can we check that we are aligned as my speech came directly from a note from officials that showed a difference? On that basis, I am happy to withdraw.
Member’s explanatory statement
This amendment is consequential on the amendment of clause 30 in my name.
“5A (1) In this paragraph “the relevant day”, in relation to a regulated user-to- user service, means—(a) the first day on which the service is a Category 1 service, or (b) the first day on which the service again becomes a Category 1 service (following a period during which the service was not a Category 1 service).(2) If, on the relevant day, section 12(2) guidance is available, a section 12(2) assessment of the service must be completed within the period of three months beginning with that day.(3) Sub-paragraph (4) applies if—(a) on the relevant day, the first section 12(2) guidance has not yet been published, and(b) immediately before the publication of that guidance, the service is still a Category 1 service.(4) The first section 12(2) assessment of the service must be completed within the period of three months beginning with the day on which the first section 12(2) guidance is published.”Member’s explanatory statement
This amendment and the rest of the amendments of Schedule 3 in my name provide for the timing of the first assessments under the new Clause proposed after Clause 11 in my name.
“Content of codes of practice: age assurance
11A (1) This paragraph is about the inclusion of age assurance in a code of practice as a measure recommended for the purpose of compliance with any of the duties set out in section 11(2) or (3) or 25(2) or (3), and sub- paragraph (2) sets out some further principles, in addition to those in paragraphs 1 and 2 (general principles) and 10(2) (freedom of expression and privacy), which are particularly relevant.(2) In deciding whether to recommend the use of age assurance, or which kinds of age assurance to recommend, OFCOM must have regard to the following—(a) the principle that age assurance should be effective at correctly identifying the age or age-range of users;(b) relevant standards set out in the latest version of the code of practice under section 123 of the Data Protection Act 2018 (age- appropriate design code);(c) the need to strike the right balance between—(i) the levels of risk and the nature, and severity, of potential harm to children which the age assurance is designed to guard against, and(ii) protecting the right of users and (in the case of search services or the search engine of combined services) interested persons to freedom of expression within the law;(d) the principle that more effective kinds of age assurance should be used to deal with higher levels of risk of harm to children;(e) the principle that age assurance should be easy to use, including by children of different ages and with different needs;(f) the principle that age assurance should work effectively for all users regardless of their characteristics or whether they are members of a certain group;(g) the principle of interoperability between different kinds of age assurance. (3) In a code of practice that describes measures for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must recommend (among other things) age verification or age estimation which is such of a kind, and which is to be used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child (see section 11(3C)).(4) In deciding which kinds and uses of age verification or age estimation to recommend for the purpose of compliance with the duty set out in section 11(3)(a), OFCOM must have regard to their guidance under section 73 that gives examples of kinds and uses of age verification and age estimation that are, or are not, highly effective at correctly determining whether or not a particular user is a child.(5) Nothing in sub-paragraph (2) is to be read as allowing OFCOM to recommend, for the purpose of compliance with the duty set out in section 11(3)(a) by providers subject to the requirement in section 11(3A), a kind or use of age verification or age estimation which does not meet the requirement to be highly effective as mentioned in section 11(3C).(6) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 11(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 11(6), (8) and (10) (inclusion of clear information in terms of service), and(b) section 17(2) and (3)(see, in particular, section 17(5)(e) (complaints about age assurance)).(7) A code of practice that recommends the use of age assurance for the purpose of compliance with the duties set out in section 25(2) or (3) must also describe measures recommended for the purpose of compliance with the duties set out in—(a) section 25(5) and (8) (inclusion of clear information in publicly available statement), and(b) section 27(2) and (3)(see, in particular, section 27(5)(d) (complaints about age assurance)).(8) A code of practice may—(a) refer to industry or technical standards for age assurance (where they exist);(b) elaborate on the principles mentioned in paragraphs (a) and (c) to (g) of sub-paragraph (2).(9) In this paragraph “age assurance” means age verification or age estimation, and see in particular section (“Age verification” and “age estimation”) (4) (self-declaration of age not to be regarded as age verification or age estimation).”Member’s explanatory statement
This amendment contains provisions which relate to OFCOM’s recommendation of age assurance in codes of practice for the purposes of Part 3 of the Bill. It includes some relevant principles and makes it clear that OFCOM must recommend highly effective age assurance in connection with the duty in Clause 11(3)(a) (preventing children from encountering primary priority content that is harmful to children).
Member’s explanatory statement
This amendment is a minor drafting change to omit a superfluous word.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 10th July 2023
(10 months, 1 week ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-III Third marshalled list for Report - (10 Jul 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
We began this group on the previous day on Report, and I concluded my remarks, so it is now for other noble Lords to contribute on the amendments that I spoke to on Thursday.
Lord Bethell (Con)
My Lords, I rise emphatically to welcome the government amendments in this group. They are a thoughtful and fulsome answer to the serious concerns expressed from the four corners of the Chamber by a great many noble Lords at Second Reading and in Committee about the treatment of age verification for pornography and online harms. For this, I express my profound thanks to my noble friend the Minister, the Secretary of State, the Bill team, the Ofcom officials and all those who have worked so hard to refine this important Bill. This is a moment when the legislative team has clearly listened and done everything it possibly can to close the gap. It is very much the House of Lords at its best.
It is worth mentioning the exceptionally broad alliance of noble Lords who have worked so hard on this issue, particularly my compadres, my noble friend Lady Harding, the noble Baroness, Lady Kidron, and the right reverend Prelate the Bishop of Oxford, who all signed many of the draft amendments. There are the Front-Benchers, including the noble Lords, Lord Stevenson, Lord Knight, Lord Clement-Jones and Lord Allan of Hallam, and the noble Baroness, Lady Merron. There are the Back-Benchers behind me, including my noble friends Lady Jenkin and Lord Farmer, the noble Lords, Lord Morrow, Lord Browne and Lord Dodds, and the noble Baroness, Lady Foster. Of those in front of me, there are the noble Baronesses, Lady Benjamin and Lady Ritchie, and there is also a number too large for me to mention, from all across the House.
I very much welcome the sense of pragmatism and proportionality at the heart of the Online Safety Bill. I welcome the central use of risk assessment as a vital tool for policy implementation and the recognition that some harms are worse than others, that some children need more protection than others, that we are legislating for future technologies that we do not know much about and that we must engage industry to achieve effective implementation. As a veteran of the Communications Act 2003, I strongly support the need for enabling legislation that has agility and a broad amount of support to stand the test of time.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been a good debate, perhaps unfairly curtailed in terms of the range of voices we have heard, but I am sure the points we wanted to have on the table are there and we can use them in summarising the debate we have had so far.
I welcome the Government’s amendments in this group. They have gone a long way to resolving a number of the difficulties that were left after the Digital Economy Act. As the noble Lord, Lord Clement-Jones, has said, we now have Part 3 and Part 5 hooked together in a consistent and effective way and definitions of “age verification” and “age estimation”. The noble Lord, Lord Grade, is sadly not in his place today—I normally judge the quality of the debate by the angle at which he resides in that top corner there. He is not here to judge it, but I am sure he would be upright and very excited by what we have been hearing so far. His point about the need for companies to be clearly responsible for what they serve up through their services is really important in what we are saying here today.
However, despite the welcome links across to the ICO age-appropriate design code, with the concerns we have been expressing on privacy there are still a number of questions which I think the Minister will want to deal with, either today or in writing. Several noble Lords have raised the question of what “proportionate” means in this area. I have mentioned it in other speeches in other groups. We all want the overall system to be proportionate in the way in which it allocates the powers, duties and responsibilities on the companies providing us with the services they do. But there is an exception for the question of whether children should have access to material which they should not get because of legal constraints, and I hope that “proportionate” is not being used in any sense to evade that.
I say that particularly because the concern has been raised in other debates—and I would be grateful if the Minister could make sure when he comes to respond that this issue is addressed—that smaller companies with less robust track records in terms of their income and expenditures might be able to plead that some of the responsibilities outlined in this section of the Bill do not apply to them because otherwise it would bear on their ability to continue. That would be a complete travesty of where we are trying to get to here, which is an absolute bar on children having access to material that is illegal or in the lists now in the Bill in terms of priority content.
The second worry that people have raised is: will the system that is set up here actually work in practice, particularly if it does not apply to all companies? That relates perhaps to the other half of the coin that I have just mentioned.
The third point, raised by a number of Peers, is: where does all this sit in relation to the review of pornography which was announced recently? A number of questions have been asked about issues which the Minister may be unable to respond to, but I suspect he may also want to write to us on the wider issue of timing and the terms of reference once they are settled.
I think we need to know this as we reach the end of the progress on this Bill, because you cannot expect a system being set up with the powers that are being given to Ofcom to work happily and well if Ofcom knows it is being reviewed at the same time. I hope that some consideration will be given to how we get the system up and running, even if the timescale is now tighter than it was, if at the same time a review rightly positioned to try to look at the wider range of pornography is going to impact on its work.
I want to end on the question raised by a large number of noble Lords: how does all this work sit with privacy? Where information and data are being shared on the basis of assuring access to services, there will be a worry if privacy is not ensured. The amendments tabled by the noble Baroness, Lady Kidron, are very salient to this. I look forward to the Minister’s response to them.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry that the noble Baroness, Lady Benjamin, was unable to be here for the start of the debate on Thursday and therefore that we have not had the benefit of hearing from her today. I am very glad that she was here to hear the richly deserved plaudits from across the House for her years of campaigning on this issue.
I am very glad to have had the opportunity to discuss matters directly with her including, when it was first announced, the review that we have launched. I am pleased that she gave it a conditional thumbs up. Many of her points have been picked up by other noble Lords today. I did not expect anything more than a conditional thumbs up from her, given her commitment to getting this absolutely right. I am glad that she is here to hear some of the answers that I am able to set out, but I know that our discussions would have continued even if she had been able to speak today and that her campaigns on this important issue will not cease; she has been tireless in them. I am very grateful to her, my noble friends Lord Bethell and Lady Harding, the noble Baroness, Lady Kidron, and many others who have been working hard on this.
Let me pick up on their questions and those of the noble Baroness, Lady Ritchie of Downpatrick, and others on the review we announced last week. It will focus on the current regulatory landscape and how to achieve better alignment of online and offline regulation of commercial pornography. It will also look at the effectiveness of the criminal law and the response of the criminal justice system relating to pornography. This would focus primarily on the approach taken by law enforcement agencies and the Crown Prosecution Service, including considering whether changes to the criminal law would address the challenges identified.
The review will be informed by significant expert input from government departments across Whitehall, the Crown Prosecution Service and law enforcement agencies, as well as through consultation with the industry and with civil society organisations and regulators including, as the noble Baroness, Lady Ritchie, rightly says, some of the many NGOs that do important work in this area. It will be a cross-government effort. It will include but not be limited to input from the Ministry of Justice, the Home Office, the Department for Science, Innovation and Technology and my own Department for Culture, Media and Sport. I assure my noble friend Lord Farmer that other government departments will of course be invited to give their thoughts. It is not an exhaustive list.
I detected the enthusiasm for further details from noble Lords across the House. I am very happy to write as soon as I have more details on the review, to keep noble Lords fully informed. I can be clear that we expect the review to be complete within 12 months. The Government are committed to undertaking it in a timely fashion so that any additional safeguards for protecting UK users of online services can be put in place as swiftly as possible.
My noble friend Lord Bethell asked about international alignment and protecting Britain for investment. We continue to lead global discussions and engagement with our international partners to develop common approaches to online safety while delivering on our ambition to make the UK the safest place in the world to be online.
The noble Baroness, Lady Kidron, asked about the new requirements. They apply only to Part 3 providers, which allow pornography or other types of primary priority content on their service. Providers that prohibit this content under their terms of service for all users will not be required to use age verification or age estimation. In practice, we expect services that prohibit this content to use other measures to meet their duties, such as effective content moderation and user reporting. This would protect children from this content instead of requiring measures that would restrict children from seeing content that is not allowed on the service in the first place.
These providers can still use age verification and age estimation to comply with the existing duty to prevent children encountering primary priority content. Ofcom can still recommend age-verification and age-estimation measures in codes of practice for these providers where proportionate. On the noble Baroness’s second amendment, relating to Schedule 4, Ofcom may refer to the age-assurance principles set out in Schedule 4 in its children’s codes of practice.
On the 18-month timetable, I can confirm that 18 months is a backstop and not a target. Our aim is to have the regime in force as quickly as possible while making sure that services understand their new duties. Ofcom has set out in its implementation road map that it intends to publish draft guidance under Part 5 this autumn and draft children’s codes next spring.
The noble Baroness, Lady Ritchie, also asked about implementation timetables. I can confirm that Part 3 and Part 5 duties will be implemented at the same time. Ofcom will publish draft guidance shortly after Royal Assent for Part 5 duties and codes for the illegal content duties in Part 3. Draft codes for Part 3 children’s duties will follow in spring next year. Some Part 3 duties relating to category 1 services will be implemented later, after the categorisation thresholds have been set in secondary legislation.
The noble Lord, Lord Allan of Hallam, asked about interoperability. We have been careful to ensure that the Bill is technology neutral and to allow for innovation across the age-assurance market. We have also included a principle on interoperability in the new list of age-assurance principles in Schedule 4 and the Part 5 guidance.
At the beginning of the debate, on the previous day on Report, I outlined the government amendments in this group. There are some others, which noble Lords have spoken to. Amendments 125 and 217, from the noble Baroness, Lady Kidron, seek to add additional principles on user privacy to the new lists of age-assurance principles for both Part 3 and 5, which are brought in by Amendments 124 and 216. There are already strong safeguards for user privacy in the Bill. Part 3 and 5 providers will need to have regard to the importance of protecting users’ privacy when putting in place measures such as age verification or estimation. Ofcom will be required to set out, in codes of practice for Part 3 providers and in guidance for Part 5 providers, how they can meet these duties relating to privacy. Furthermore, companies that use age-verification or age-estimation solutions will need to comply with the UK’s robust data protection laws or face enforcement action.
Adding the proposed new principles would, we fear, introduce confusion about the nature of the privacy duties set out in the Bill. Courts are likely to assume that the additions are intended to mean something different from the provisions already in the Bill relating to privacy. The new amendments before your Lordships imply that privacy rights are unqualified and that data can never be used for more than one purpose, which is not the case. That would introduce confusion about the nature of—
Lord Clement-Jones (LD)
My Lords, I apologise to the Minister. Can he write giving chapter and verse for that particular passage by reference to the contents of the Bill?
Lord Parkinson of Whitley Bay (Con)
I am very happy to do that. That would probably be better than me trying to do so at length from the Dispatch Box.
Government Amendment 124 also reinforces the importance of protecting children’s privacy, including data protection, by ensuring that Ofcom will need to have regard to standards set out under Section 123 of the Data Protection Act 2018 in the age-appropriate design code. I hope that explains why we cannot accept Amendments 125 or 217.
The noble Baroness, Lady Fox, has Amendment 184 in this group and was unable to speak to it, but I am very happy to respond to it and the way she set it out on the Marshalled List. It seeks to place a new duty on Ofcom to evaluate whether internet service providers, internet-connected devices or individual websites should undertake user-identification and age-assurance checks. This duty would mean that such an evaluation would be needed before Ofcom produces guidance for regulated services to meet their duties under Clauses 16 and 72.
Following this evaluation, Ofcom would need to produce guidance on age-verification and age-assurance systems, which consider cybersecurity and a range of privacy considerations, to be laid before and approved by Parliament. The obligation for Ofcom to evaluate age assurance, included in the noble Baroness’s amendment, is already dealt with by Amendment 271, which the Government have tabled to place a new duty on Ofcom to publish a report on the effectiveness of age-assurance solutions. That will specifically include consideration of cost to business, and privacy, including the processing of personal data.
Lord Allan of Hallam (LD)
I just realised I forgot to thank the Government for Amendment 271, which reflected something I raised in Committee. I will reflect back to the Minister that, as is reinforced by his response now, it goes precisely where I wanted to. That is to make sure—I have raised this many times—that we are not implementing another cookie banner, but are implementing something and then going back to say, “Did it work as we intended? Were the costs proportionate to what we achieved?” I want to put on the record that I appreciate Amendment 271.
Lord Parkinson of Whitley Bay (Con)
I appreciate the noble Lord’s interjection and, indeed, his engagement on this issue, which has informed the amendments that we have tabled.
In relation to the amendment of the noble Baroness, Lady Fox, as I set out, there are already robust safeguards for user privacy in the Bill. I have already mentioned Amendment 124, which puts age-assurance principles in the Bill. These require Ofcom to have regard, when producing its codes of practice on the use of age assurance, to the principle of protecting the privacy of users, including data protection. We think that the noble Baroness’s amendment is also unnecessary. I hope that she and the noble Baroness, Lady Kidron, will be willing to not move their amendments and to support the government amendments in the group.
Lord Stevenson of Balmacara (Lab)
There is always a simple question. We are in a bit of a mess—again. When I said at Second Reading that I thought we should try to work together, as was picked up by the noble Baroness in her powerful speech, to get the best Bill possible out of what we had before us, I really did not know what I was saying. Emotion caught me and I ripped up a brilliant speech which will never see the light of day and decided to wing it. I ended up by saying that I thought we should do the unthinkable in this House—the unthinkable in politics, possibly—and try to work together to get the Bill to come right. As the noble Lord, Lord Clement-Jones, pointed out, I do not think I have ever seen, in my time in this House, so many government amendments setting out a huge number of what we used to call concessions. I am not going to call them concessions—they are improvements to the Bill. We should pay tribute to the Minister, who has guided his extensive team, who are listening anxiously as we speak, in the good work they have been doing for some time, getting questioned quite seriously about where it is taking us.
The noble Lord, Lord Clement-Jones, is quite right to pick up what the pre-legislative scrutiny committee said about this aspect of the work we are doing today and what is in the Bill. We have not really nailed the two big things that social media companies ask: this amplification effect, where a single tweet—or thread, let us call it now—can go spinning around the world and gather support, comment, criticism, complaint, anger and all sorts of things that we probably do not really understand in the short period of time it takes to be read and reacted to. That amplification is not something we see in the real world; we do not really understand it and I am not quite sure we have got to the bottom of where we should be going at this stage.
The second most important point—the point we are stuck on at the moment; this rock, as it were, in the ocean—is the commercial pressure which, of course, drives the way in which companies operate. They are in it for the money, not the social purpose. They did not create public spaces for people to discuss the world because they think it is a good thing. There is no public service in this—this is a commercial decision to get as much money as possible from as many people as possible and, boy, are they successful.
But commercial pressures can have harms; they create harms in ways that we have discussed, and the Bill reflects many of those. This narrow difference between the way the Bill describes content, which is meant to include many of the things we have been talking about today—the four Cs that have been brought into the debate helpfully in recent months—does not really deal with the commercial pressures under which people are placed because of the way in which they deal with social media. We do not think the Bill is as clear as it could be; nor does it achieve as much as it should in trying to deal with that issue.
That is in part to do with the structure. It is almost beyond doubt that the sensibility of what we are trying to achieve here is in the Bill, but it is there at such a level of opacity that it does not have the clarity of the messages we have heard today from those who have spoken about individuals—Milly and that sort of story—and the impact on people. Even the noble Lord, Lord Bethell, whose swimming exploits we must admire, is an unwitting victim of the drive of commercial pressures that sees him in his underwear at inappropriate moments in order that they should seek the profits from that. I think it is great, but I wonder why.
I want to set the Minister a task: to convince us, now that we are at the bar, that when he says that this matter is still in play, he realises what that must imply and will give us a guarantee that we will be able to gain from the additional time that he seeks to get this to settle. There is a case, which I hope he will agree to, for having in the Bill an overarching statement about the need to separate out the harms that arise from content and the harms that arise from the system discussions and debates we have been having today where content is absent. I suggest that, in going back to Clause 1, the overarching objectives clause, it might well be worth seeing whether that might be strengthened so that it covers this impact, so that the first thing to read in the Bill is a sense that we embrace, understand and will act to improve this question of harm arising absent content. There is a case for putting into Clauses 10, 11, 25 and 82 the wording in Amendments 35, 36, 37A and 240, in the name of the noble Baroness, Lady Kidron, and to use those as a way of making sure that every aspect of the journey through which social media companies must go to fulfil the duties set out in the Bill by Ofcom reflects both the content that is received and the design choices made by those companies in bringing forward those proposals for material content harms and the harms that arise from the design choices. Clauses 208 and 209 also have to provide a better consideration of how one describes harms so that they are not always apparently linked to content.
That is a very high hurdle, particularly because my favourite topic of how this House works will be engaged. We have, technically, already passed Clause 1; an amendment was debated and approved, and now appears in versions of the Bill. We are about to finish with Clauses 10 and 11 today, so we are effectively saying to the Minister that he must accept that there are deficiencies in the amendments that have already been passed or would be, if we were to pass Amendments 35, 36, 37A, 85 and 240 in the name of the noble Baroness, Lady Kidron, and others. It is not impossible, and I understand that it would be perfectly reasonable, for the Government to bring back a series of amendments on Third Reading reflecting on the way in which the previous provisions do not fulfil the aspirations expressed all around the House, and therefore there is a need to change them. Given the series of conversations throughout this debate—my phone is red hot with the exchanges taking place, and we do not have a clear signal as to where that will end up—it is entirely up to the Minister to convince the House whether these discussions are worth it.
To vote on this when we are so close seems ridiculous, because I am sure that if there is time, we can make this work. But time is not always available, and it will be up to the Minister to convince us that we should not vote and up to the noble Baroness to decide whether she wishes to test the opinion of the House. We have a three-line Whip on, and we will support her. I do not think that it is necessary to vote, however—we can make this work. I appeal to the Minister to get over the bar and tell us how we are to do it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful for the discussion we have had today and the parallel discussions that have accompanied it, as well as the many conversations we have had, not just over the months we have been debating the Bill but over the past few days.
I will turn in a moment to the amendments which have been the focus of the debate, but let me first say a bit about the amendments in this group that stand in my name. As noble Lords have kindly noted, we have brought forward a number of changes, informed by the discussions we have had in Committee and directly with noble Lords who have taken an interest in the Bill for a long time.
Government Amendments 281C, 281D, 281E and 281G relate to the Bill’s interpretation of “harm”, which is set out in Clause 209. We touched on that briefly in our debate on Thursday. The amendments respond to concerns which I have discussed with many across your Lordships’ House that the Bill does not clearly acknowledge that harm and risk can be cumulative. The amendments change the Bill to make that point explicit. Government Amendment 281D makes it clear that harm may be compounded in instances where content is repeatedly encountered by an individual user. That includes, but is not limited to, instances where content is repeatedly encountered as a result of algorithms or functionalities on a service. Government Amendment 281E addresses instances in which the combination of multiple functionalities on a service cumulatively drives up the risk of harm.
Those amendments go hand in hand with other changes that the Government have made on Report to strengthen protections for children. Government Amendment 1, for instance, which we discussed at the beginning of Report, makes it clear that services must be safe by design and that providers must tackle harms which arise from the design and operation of their service. Government Amendments 171 and 172 set out on the face of the Bill the categories of “primary priority” and “priority” content which is harmful to children to allow the protections for children to be implemented as swiftly as possible following Royal Assent. As these amendments demonstrate, the Government have indeed listened to concerns which have been raised from all corners of your Lordships’ House and made significant changes to strengthen the Bill’s protections for children. I agree that it has been a model of the way in which your Lordships’ House operates, and the Bill has benefited from it.
Let me turn to the amendments in the name of the noble Baroness, Lady Kidron. I am very grateful for her many hours of discussion on these specific points, as well as her years of campaigning which led to them. We have come a long way and made a lot of progress on this issue since the discussion at the start of Committee. The nature of online risk versus harm is one which we have gone over extensively. I certainly accept the points that the noble Baroness makes; I know how heartfelt they are and how they are informed by her experience sitting in courtrooms and in coroners’ inquests and talking to people who have had to be there because of the harms they or their families have encountered online. The Government are firmly of the view that it is indisputable that a platform’s functionalities, features or wider design are often the single biggest factor in determining whether a child will suffer harm. The Bill makes it clear that functions, features and design play a key role in the risk of harm occurring to a child online; I draw noble Lords’ attention to Clause 11(5), which makes it clear that the child safety duties apply across all areas of a service, including the way it is designed, operated and used, as well as content present on the service. That makes a distinction between the design, operation and use, and the content.
In addition, the Bill’s online safety objectives include that regulated services should be designed and operated so as to protect from harm people in the United Kingdom who are users of the service, including with regard to algorithms used by the service, functionalities of the services and other features relating to the operation of the service. There is no reference to content in this section, again underlining that the Bill draws a distinction.
This ensures that the role of functionalities is properly accounted for in the obligations on providers and the regulator, but I accept that noble Lords want this to be set out more clearly. Our primary aim must be to ensure that the regulatory framework can operate as intended, so that it can protect children in the way that they deserve and which we all want to see. Therefore, we cannot accept solutions that, however well meaning, may inadvertently weaken the Bill’s framework or allow providers to exploit legal uncertainty to evade their duties. We have come back to that point repeatedly in our discussions.
Member’s explanatory statement
This amendment is consequential on the next amendment of Clause 11 in my name.
“(3A) The duty set out in subsection (3)(a) requires a provider to use age verification or age estimation (or both) to prevent children of any age from encountering primary priority content that is harmful to children which the provider identifies on the service.(3B) That requirement applies to a provider in relation to a particular kind of primary priority content that is harmful to children in every case except where—(a) a term of service indicates (in whatever words) that the presence of that kind of primary priority content that is harmful to children is prohibited on the service, and(b) that policy applies in relation to all users of the service.(3C) If a provider is required by subsection (3A) to use age verification or age estimation for the purpose of compliance with the duty set out in subsection (3)(a), the age verification or age estimation must be of such a kind, and used in such a way, that it is highly effective at correctly determining whether or not a particular user is a child.”Member’s explanatory statement
This amendment requires providers of user-to-user services to use age verification or age estimation to prevent children from encountering identified primary priority content that is harmful to children, unless the terms of service indicate that that kind of content is prohibited; and where that requirement applies, new subsection (3C) provides that the age verification or age estimation must be highly effective.
Lord Knight of Weymouth (Lab)
My Lords, as we have heard, this is a small group of amendments concerned with preventing size and lack of capacity being used as a reasonable excuse for allowing children to be unsafe. Part of the problem is the complexity of the Bill and the way it has been put together.
For example, Clause 11, around user-to-user services, is the pertinent clause and it is headed “Safety duties protecting children”. Clause 11(2) is preceded in italics with the wording “All services” so anyone reading it would think that what follows applies to all user-to-user services regardless of size. Clause 11(3) imposes a duty on providers
“to operate a service using proportionate systems and processes”
to protect children from harm. That implies that there will be judgment around what different providers can be expected to do to protect children; for example, by not having to use a particular unaffordable technical solution on age assurance if they can show the right outcome by doing things differently. That starts to fudge things a little.
The noble Lord, Lord Bethell, who introduced this debate so well with Amendment 39, supported by my noble friend Lady Ritchie, wants to be really sure that the size of the provider can never be used to argue that preventing all children from accessing porn is disproportionate and that a few children slipping through the net might just be okay.
The clarity of Clause 11 unravels even further at the end of the clause, where in subsection (12)(b) it reads that
“the size and capacity of the provider of a service”
is relevant
“in determining what is proportionate”.
The clause starts to fall apart at that point quite thoroughly in terms of anyone reading it being clear about what is supposed to happen.
Amendment 43 seeks to take that paragraph out, as we have heard from the noble Lord, Lord Russell, and would do the same for search in Amendment 87. I have added my name to these amendments because I fear that the ambiguity in the wording of this clause will give small and niche platforms an easy get out from ensuring that children are safe by design.
I use the phrase “by design” deliberately. We need to make a choice with this Bill even at this late stage. Is the starting point in the Bill children’s safety by design? Or is the starting point one where we do not want to overly disrupt the way providers operate their business first—which is to an extent how the speech from the noble Lord, Lord Allan, may have been heard—and then overlay children’s safety on top of that?
Yesterday, I was reading about how children access inappropriate and pornographic content, not just on Twitter, Instagram, Snapchat, TikTok and Pinterest but on Spotify and “Grand Theft Auto”—the latter being a game with an age advisory of “over 17” but which is routinely played by teenaged children. Wherever we tolerate children being online, there are dangers which must be tackled. Listening to the noble Baroness, Lady Harding, took me to where a big chunk of my day job in education goes to—children’s safeguarding. I regularly have to take training in safeguarding because of the governance responsibilities that I have. Individual childminders looking after one or two children have an assessment and an inspection around their safeguarding. In the real world we do not tolerate a lack of safety for children in this context. We should not tolerate it in the online world either.
The speech from the noble Lord, Lord Russell, reminded me of the breadcrumbing from big platforms into niche platforms that is part of that incel insight that he referenced. Content that is harmful to children can also be what some children are looking for, which keeps them engaged. Small, emergent services aggressively seeking growth could set algorithms accordingly. They must not be allowed to believe that engaging harmful content is okay until they get to the size that they need to be to afford the age-assurance technology which we might envisage in the Bill. I hope that the Minister shares our concerns and can help us with this problem.
Lord Parkinson of Whitley Bay (Con)
My Lords, short debates can be helpful and useful. I am grateful to noble Lords who have spoken on this group.
I will start with Amendment 39, tabled by my noble friend Lord Bethell. Under the new duty at Clause 11(3)(a), providers which allow pornography or other forms of primary priority content under their terms of service will need to use highly effective age verification or age estimation to prevent children encountering it where they identify such content on their service, regardless of their size or capacity. While the size and capacity of providers is included as part of a consideration of proportionality, this does not mean that smaller providers or those with less capacity can evade the strengthened new duty to protect children from online pornography. In response to the questions raised by the noble Baronesses, Lady Ritchie of Downpatrick and Lady Kidron, and others, no matter how much pornographic content is on a service, where providers do not prohibit this content they would still need to meet the strengthened duty to use age verification or age estimation.
Proportionality remains relevant for the purposes of providers in scope of the new duty at Clause 11(3)(a) only in terms of the age-verification or age-estimation measures that they choose to use. A smaller provider with less capacity may choose to go for a less costly but still highly effective measure. For instance, a smaller provider with less capacity might seek a third-party solution, whereas a larger provider with greater capacity might develop their own solution. Any measures that providers use will need to meet the new high bar of being “highly effective”. If a provider does not comply with the new duties and fails to use measures which are highly effective at correctly determining whether or not a particular user is a child, Ofcom can take tough enforcement action.
The other amendments in this group seek to remove references to the size and capacity of providers in provisions relating to proportionality. The principle of proportionate, risk-based regulation is fundamental to the Bill’s regulatory framework, and we consider that the Bill as drafted already strikes the correct balance. The Bill ultimately will regulate a large number of services, ranging from some of the biggest companies in the world to smaller, voluntary organisations, as we discussed in our earlier debate on exemptions for public interest services.
The provisions regarding size and capacity recognise that what it is proportionate to require of companies of various sizes and business models will be different. Removing this provision would risk setting a lowest common denominator standard which does not create incentives for larger technology companies to do more to protect their users than smaller organisations. For example, it would not be proportionate for a large multinational company which employs thousands of content moderators and which invests in significant safety technologies to argue that it is required to take only the same steps to comply as a smaller provider which might have only a handful of employees and a few thousand UK users.
While the size and capacity of providers is included as part of a consideration of proportionality, let me be clear that this does not mean that smaller providers or those with less capacity do not need to meet the child safety duties and other duties in the Bill, such as the illegal content safety duties. These duties set out clear requirements for providers. If providers do not meet these duties, they will face enforcement action.
I hope that is reassuring to my noble friend Lord Bethell and to the other noble Lords with amendments in this group. I urge my noble friend to withdraw his amendment.
Lord Bethell (Con)
My Lords, I thank my noble friend the Minister for that reassurance. He put the points extremely well. I very much welcome his words from the Dispatch Box, which go a long way towards clarifying and reassuring.
This was a short and perfectly formed debate. I will not go on a tour d’horizon of everyone who has spoken but I will mention the noble Lord, Lord Allan of Hallam. He is entirely right that no one wants gratuitously to hound out businesses from the UK that contribute to the economy and to our life here. There are good regulatory principles that should be applied by all regulators. The five regulatory principles of accountability, transparency, targeting, consistency and proportionality are all in the Legislative and Regulatory Reform Act 2006. Ofcom will embrace them and abide by them. That kind of reassurance is important to businesses as they approach the new regulatory regime.
I take on board what my noble friend the Minister said in terms of the application of regulations regardless of size or capacity, and the application of these strengthened duties, such as “highly effective”, regardless of any economic or financial capacity. I feel enormously reassured by what he has said. I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment refers to age verification and age estimation as mentioned in the preceding amendment in my name, and clarifies the relationship between Clause 11(4) and new subsection (3A) of Clause 11 inserted by that amendment.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 11 into two Clauses.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 11 into two Clauses.
“Assessment duties: user empowerment
(1) This section sets out the duties about assessments related to adult user empowerment which apply in relation to Category 1 services (in addition to the duties about risk assessments set out in section 8 and, in the case of Category 1 services likely to be accessed by children, section 10).(2) A duty to carry out a suitable and sufficient assessment for the purposes of section 12(2) at a time set out in, or as provided by, Schedule 3.(3) A duty to take appropriate steps to keep such an assessment up to date.(4) Before making any significant change to any aspect of a service’s design or operation, a duty to carry out a further suitable and sufficient assessment for the purposes of section 12(2) relating to the impacts of that proposed change.(5) An assessment of a service “for the purposes of section 12(2)” means an assessment of the following matters—(a) the user base;(b) the incidence of relevant content on the service;(c) the likelihood of adult users of the service encountering, by means of the service, each kind of relevant content (with each kind separately assessed), taking into account (in particular) algorithms used by the service, and how easily, quickly and widely content may be disseminated by means of the service;(d) the likelihood of adult users with a certain characteristic or who are members of a certain group encountering relevant content which particularly affects them;(e) the likelihood of functionalities of the service facilitating the presence or dissemination of relevant content, identifying and assessing those functionalities more likely to do so;(f) the different ways in which the service is used, and the impact of such use on the likelihood of adult users encountering relevant content;(g) how the design and operation of the service (including the business model, governance, use of proactive technology, measures to strengthen adult users’ control over their interaction with user-generated content, and other systems and processes) may reduce or increase the likelihood of adult users encountering relevant content.(6) In this section “relevant content” means content to which section 12(2) applies (content to which user empowerment duties set out in that provision apply).(7) See also—(a) section 19(8A) and (9) (records of assessments), and(b) Schedule 3 (timing of providers’ assessments).” Member’s explanatory statement
This amendment requires providers of Category 1 services to carry out and update as necessary an assessment about how likely it is that adult users will encounter content to which Clause 12(2) applies (suicide and self-harm content and so on - see Clause 12(10), (11) and (12)).
Member’s explanatory statement
This amendment is a technical drafting change related to the next amendment in my name.
“(4A) A duty to operate a service using a system or process which seeks to ensure that all registered adult users are offered the earliest possible opportunity, in relation to each control feature included in the service, to take a step indicating to the provider that—(a) the user wishes to retain the default setting for the feature (whether that is that the feature is in use or applied, or is not in use or applied), or(b) the user wishes to change the default setting for the feature.(4B) The duty set out in subsection (4A)—(a) continues to apply in relation to a user and a control feature for so long as the user has not yet taken a step mentioned in that subsection in relation to the feature;(b) no longer applies in relation to a user once the user has taken such a step in relation to every control feature included in the service.”Member’s explanatory statement
This amendment imposes a new duty on providers of Category 1 services to proactively ask all registered adult users whether they wish to opt in or opt out of any features offered in compliance with the duty in subsection (2), until a choice is made.
Member’s explanatory statement
This amendment is consequential on the splitting up of Clause 12 into two Clauses.
Member’s explanatory statement
This amendment provides that a provider can only conclude that children cannot access a service if age verification or age estimation is used on the service with the result that children are not normally able to access it.
Member’s explanatory statement
This amendment is about complaints of content being blocked because of an incorrect assessment of a user’s age. A reference to Clause 11(2) is inserted, as the duty in that provision can also be complied with by using age verification or age estimation.
Lord Stevenson of Balmacara (Lab)
It is always nice to be nice to the Minister.
I will reference, briefly, the introduction of the amendments in the name of the noble Baroness, Lady Fraser of Craigmaddie, which I signed. They were introduced extremely competently, as you would expect, by my noble and learned kinsman Lord Hope. It is important to get the right words in the right place in Bills such as this. He is absolutely right to point out the need to be sure that we are talking about the right thing when we say “freedom of expression”—that we do mean that and not “freedom of speech”; we should not get them mixed up—and, also, to have a consistent definition that can be referred to, because so much depends on it. Indeed, this group might have run better and more fluently if we had started with this amendment, which would have then led into the speeches from those who had the other amendments in the group.
The noble Baroness is not present today, but not for bad news: for good news. Her daughter is graduating and she wanted to be present at that; it is only right that she should do that. She will be back to pick up other aspects of the devolution issues she has been following very closely, and I will support her at that time.
The debate on freedom of expression was extremely interesting. It raised issues that, perhaps, could have featured more fully had this been timetabled differently, as both noble Lords who introduced amendments on this subject said. I will get my retaliation in first: a lot of what has been asked for will have been done. I am sure that the Minister will say that, if you look at the amendment to Clause 1, the requirement there is that freedom of expression is given priority in the overall approach to the Bill, and therefore, to a large extent, the requirement to replace that at various parts of the Bill may not be necessary. But I will leave him to expand on that; I am sure that he will.
Other than that, the tension I referred to in an earlier discussion, in relation to what we are made to believe about the internet and the social media companies, is that we are seeing a true public square, in which expressions and opinions can be exchanged as freely and openly as they would be in a public space in the real world. But, of course, neither of those places really exists, and no one can take the analogy further than has been done already.
The change, which was picked up by the noble Baroness, Lady Stowell, in relation to losing “legal but harmful”, has precipitated an issue which will be left to social media companies to organise and police—I should have put “policing” in quotation marks. As the noble Baroness, Lady Kidron, said, the remedy for much of this will be an appeals mechanism that works both at the company level and for the issues that need rebalancing in relation to complexity or because they are not being dealt with properly. We will not know that for a couple of years, but at least that has been provided for and we can look forward to it. I look forward to the Minister’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I hope that the noble Baroness, Lady Fox, and my noble friend Lord Moylan do feel that they have been listened to. It was striking, in this debate, that they had support from all corners of your Lordships’ House. I know that, at various points in Committee, they may have felt that they were in a minority, but they have been a very useful and welcome one. This debate shows that many of the arguments that they have made throughout the passage of the Bill have resonated with noble Lords from across the House.
Although I have not signed amendments in the names of the noble Baroness and my noble friend Lord Moylan, in many cases it is not because I disagree with them but because I think that what they do is already covered in the Bill. I hope to reassure them of that in what I say now.
Amendments 77 to 81 from the noble Baroness, Lady Fox, would require services to have particular regard to freedom of expression and privacy when deciding on their terms of service. Services will already need to have particular regard to users’ rights when deciding on safety systems to fulfil their duties. These requirements will be reflected in providers’ terms of service, as a result of providers’ duties to set out their safety measures in their terms of service. The framework will also include a range of measures to allow scrutiny of the formulation, clarity and implementation of category 1 providers’ own terms of service.
However, there are some points on which we disagree. For instance, we do not think that it would be appropriate for all providers to have a general duty to have a particular regard to freedom of expression when deciding on their own terms of service about content. We believe that the Bill achieves the right balance. It requires providers to have regard to freedom of expression when carrying out their safety duties, and it enables public scrutiny of terms of service, while recognising providers’ own freedom of expression rights as private entities to set the terms of service that they want. It is of course up to adults to decide which services to use based on the way those services are drawn up and the way the terms of service set out what is permissible in them.
Nothing in the Bill restricts service providers’ ability to set their own terms and conditions for legal content accessed by adults—that is worth stressing. Ofcom will not set platforms’ terms and conditions, nor will it take decisions on whether individual pieces of content should, or should not, be on a platform. Rather, it will ensure that platforms set clear terms and conditions, so that adults know what to expect online, and ensure that platforms have systems and processes in place to enforce those terms and conditions themselves.
Amendment 226 from the noble Baroness, Lady Fox, would require providers to use all relevant information that is reasonably available to them whenever they make judgments about content under their terms of service. That is, where they have included or drafted those terms of service in compliance with duties in the Bill. Her amendment would be to an existing requirement in Clause 173, which already requires providers to take this approach whenever they implement a system or process to comply, and this system is making judgments about certain content. For example, Clause 173 already covers content judgments made via systems and processes that a category 1 provider implements to fulfil its Clause 65 duties to enforce its own terms of service consistently. So we feel that Clause 173 is already broad enough to achieve the objectives that the noble Baroness, Lady Fox, seeks.
My noble friend Lord Moylan’s amendments seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties and when drafting codes or guidance. As we discussed in Committee, Ofcom has existing obligations to protect freedom of expression, and the Bill will include additional measures in this regard. We are also making additional amendments to underline the importance of freedom of expression. I am grateful to the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Fraser of Craigmaddie for their work to define “freedom of expression” in the Bill. The Bill’s new overarching statement at Clause 1, as the noble Lord, Lord Stevenson, rightly pointed out, lists “freedom of expression”, signalling that it is a fundamental part of the Bill. That is a helpful addition.
Amendment 188 in the name of the noble Baroness, Lady Fox, seeks to disapply platforms’ Clause 65 duties when platforms’ terms of service restrict lawful expression, or expression otherwise protected by Article 10 of the European Convention on Human Rights. Her amendment would mean that category 1 providers’ Clause 65 duties to enforce clear, accessible terms of service in a consistent manner would not apply to any of their terms of service, where they are making their own decisions restricting legal content. That would greatly undermine the application of these provisions in the Bill.
Article 10 of the European Convention on Human Rights concerns individuals’ and entities’ rights to receive and impart ideas without undue interference by public authorities, not private entities. As such, it is not clear how a service provider deciding not to allow a certain type of content on its platform would engage the Article 10 rights of a user.
Beyond the legal obligations regarding the treatment of certain kinds of user-generated content imposed by this Bill and by other legislation, platforms are free to decide what content they wish, or do not wish, to have on their services. Provisions in the Bill will set out important duties to ensure that providers’ contractual terms on such matters are clear, accessible and consistently enforced.
Lord Moylan (Con)
My Lords, before my noble friend sits down, perhaps I could seek a point of clarification. I think I heard him say, at the beginning of his response to this short debate, that providers will be required to have terms of service which respect users’ rights. May I ask him a very straightforward question: do those rights include the rights conferred by Article 10 of the European Convention on Human Rights? Put another way, is it possible for a provider operating in the United Kingdom to have terms and conditions that abridge the rights conferred by Article 10? If it is possible, what is the Government’s defence of that? If it is not possible, what is the mechanism by which the Bill achieves that?
Lord Parkinson of Whitley Bay (Con)
As I set out, I think my noble friend and the noble Baroness, Lady Fox, are not right to point to the European Convention on Human Rights here. That concerns individuals’ and entities’ rights
“to receive and impart ideas without undue interference”
by public authorities, not private entities. We do not see how a service provider deciding not to allow certain types of content on its platform would engage the Article 10 rights of the user, but I would be very happy to discuss this further with my noble friend and the noble Baroness in case we are talking at cross-purposes.
Lord Allan of Hallam (LD)
On that point specifically, having worked inside one of the companies, they fear legal action under all sorts of laws, but not under the European Convention on Human Rights. As the Minister explained, it is for public bodies; if people are going to take a case on Article 10 grounds, they will be taking it against a public body. There are lots of other grounds to go after a private company but not ECHR compliance.
“(8A) A duty to make and keep a written record, in an easily understandable form, of all aspects of every assessment under section (Assessment duties: user empowerment) (assessments related to the adult user empowerment duty set out in section 12(2)), including details about how the assessment was carried out and its findings.”Member’s explanatory statement
This amendment requires providers of Category 1 services to keep full records of their assessments under the new Clause proposed after Clause 11 in my name.
Creative Industries (Communications and Digital Committee Report)
Lord Parkinson of Whitley Bay Excerpts(10 months, 2 weeks ago)
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The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, this has indeed been an excellent debate. I agree with the noble Lord, Lord Griffiths of Burry Port, that it has been an uplifting way to end what has been a long and busy week in your Lordships’ House. Like everyone who has spoken, I am very grateful to my noble friend Lady Stowell of Beeston for tabling this debate and for how she opened it and outlined the work of your Lordships’ committee. I am in the slightly unusual position of having been a DCMS Minister when the department began the inquiry and when it reported but having in the interim sat briefly on the committee, so I can join with the deserved plaudits which were raised for my noble friend on how she chairs that committee, the remarks that have been made about the cross-party and consensual way that it operates, and the regret which was shared by all that the noble Baroness, Lady Featherstone, could not be here to join in our debate today.
As everyone who has spoken knows, the creative industries make an invaluable contribution to this country, as an economic powerhouse and by enriching the lives of everyone that they touch in the UK and around the world. As many noble Lords have noted, the creative industries have grown one-and-a-half times as quickly as the rest of the economy between 2010 and 2019, generating £108 billion in GVA in 2021. Their growth in terms of jobs has been even more marked. Their strong performance and potential is why my right honourable friend the Chancellor selected them as one of his five priority sectors in the 2022 Autumn Statement. I am grateful to my noble friend Lady Stowell for her recognition of the renewed level of political attention and support that the creative industries have across government.
The report of your Lordships’ committee has been timely as well as important. We share a passion for ensuring that we have a thriving, growing creative sector. The Secretary of State and I were delighted to receive the committee’s letter welcoming the publication of the Government’s Creative Industries Sector Vision. I agree with my noble friend Lord Vaizey that it may not have the glitziest name, but the sector vision is just that. It is a forward look and a starting point for us to work with the industry on the goals and objectives outlined in it. It marks a commitment between government and industry, which come together through the Creative Industries Council, to take action, for us to build on the solid foundations of the sector deal which was announced in 2018 to meet our jointly agreed goals by 2030. These are to:
“Grow creative clusters across the UK, adding £50 billion more in Gross Value Added … Build a highly-skilled, productive and inclusive workforce for the future, supporting one million more jobs across the UK … Maximise the positive impact of the creative industries on people, communities, the environment, and the UK’s global standing”.
We have demonstrated our commitment to the sector by providing over £300 million in support since 2021. The sector vision itself was supported by a further £77 million of funding. This will go to supporting key industry priorities, including ones which noble Lords have highlighted today, such as the importance of live-music venues. We have provided £5 million to expand Arts Council England’s support for live-music venues. The noble Lord, Lord Watson of Invergowrie, is right to highlight the important work that it does in supporting emerging artists. As with the sector deal in 2018, we expect these public commitments to unleash even larger amounts of private investment across the sector.
I am delighted that my noble friend Lord Vaizey was here to remind us of how much positive news there is across the creative industries, as well as to issue the challenge for us to tell our story more proudly. I am grateful for his kind words and for jinxing my career prospects in government. I feel about him as TS Eliot did about Ezra Pound in his dedication to The Wasteland, “il miglior fabbro”.
But we know that this diverse and dynamic sector delivers high-value, high-skilled jobs, from advertising to theatre, publishing to film and much more besides. It sets us apart on the international stage, distributing British content across the globe and enhancing our soft power, through talent, cutting-edge technologies and infrastructure, and strong intellectual property frameworks. We have made great progress but, as your Lordships’ committee points out, there is more to do. I will pick up on some of the issues raised in the debate and in the committee’s report.
The creative industries are a remarkably innovative sector and have been at the forefront of developments in artificial intelligence and immersive technology for many years. This crossover, also known as “createch”, has become especially prominent in recent months, with advances in AI technology. As my noble friend Lady Stowell reminded us, Ai-Da the robot was a star witness in the committee’s proceedings. The creative industries have been key users of AI for many years, in sectors such as video games, publishing and advertising. AI has enormous potential to deliver high-quality jobs and opportunities and to enable further growth in the creative industries.
However, it is important that we harness the benefits of AI while also managing the risks, including in the domain of copyright, which many noble Lords spoke about. It is vital that creatives are fairly compensated for their work—the noble Lord, Lord Berkeley of Knighton, spoke powerfully about the challenges and some of the numbers involved in doing that. The UK has world-leading protections for copyright and intellectual property. We know how important maintaining these are for the success of our creative industries, and we understand creators’ concerns when their work is used by artificial intelligence without their consent.
The noble Earl, Lord Clancarty, asked for an update on our work in this area. The government response to the Vallance Pro-innovation Regulation of Technologies Review in March confirmed that we would seek to develop a code of practice on copyright and to allow AI innovators and the creative industries to grow together in partnership. We want rights holders to be assured that AI firms will use their content appropriately and lawfully, and we want to ensure that AI-generated outputs are labelled appropriately to provide confidence in the origin of creative content.
We want to take a balanced and pragmatic approach. As my noble friend Lady Stowell noted, the Intellectual Property Office is working with representatives from across the creative industries, as well as AI firms, to develop good practice, guidance and other measures that support this goal. Those working-group meetings are happening as we speak, and officials from DCMS are observing them and attending an informal project board with colleagues from the Department for Science, Innovation and Technology and the Intellectual Property Office. The IPO is aiming to publish a principles-based code in draft before the Summer Recess, and it will outline next steps in this work.
Noble Lords talked about the importance of creator remuneration in music. We have always supported industry-led approaches—legislation is often not the best answer, and it is certainly rarely the swiftest. For example, with music streaming, the industry has worked together to produce an industry commitment to improve metadata and is close to reaching an agreement on transparency. Similarly, we think that an industry working group is the best way to reach a consensus on creator remuneration, building on the steps that individual companies have already taken.
The music industry is already a major driver of economic growth and investment in the UK, and the Government are eager to ensure that it remains globally competitive. That is why, in the sector vision, the Government trebled funding for the music exports growth scheme to £3.2 million over the next two years, helping emerging artists to break into new global markets and to ensure that the UK’s music sector remains one of the biggest music exporters in the world. This week, we had the very welcome news from the BPI that UK music exports jumped 20% last year to break £700 million for the first time.
Businesses also need to be able to invest in order to grow, and tax can be just as important in their growth cycle as access to finance. A number of noble Lords talked about the importance of tax reliefs. We recognise the importance of competitive creative industries tax reliefs to provide incentives in the screen sector in the UK. In 2021-22, a total of £989 million was paid out across our tax reliefs for film, television and video games, supporting over 1,800 productions and games.
The Government are committed to ensuring that our audiovisual tax reliefs remain world-leading and continue to best serve the needs of creative companies. Reforms to those tax reliefs, announced by the Chancellor at the Budget, will ensure that the tax system continues to drive growth and delivers on our commitment to build an enterprise economy, as well as bringing greater clarity to businesses about eligible productions. We want to work closely with the VFX sector on boosting growth and supporting a pipeline of talent into this cutting-edge UK industry.
Thanks to the redoubtable campaigning and effective evidence marshalling of the sector, the Budget this spring extended the higher rates of tax reliefs for theatres, orchestras, museums and galleries by two years, estimated to be worth £350 million collectively. I have already heard from theatres and producers about the difference it is making in terms of the creative risks they are able to take and the programming they are now doing for the months ahead.
My noble friend Lord Vaizey of Didcot asked about R&D tax reliefs, which are a vital part of growing businesses across the UK. As he knows, the UK is unique in having two R&D schemes: one for large businesses, and one for smaller businesses. Earlier this year, my noble friend will have seen that the Government ran a consultation which sought views on a simplified R&D tax relief scheme, merging the two schemes. The Government are considering their response to the consultation and will publish draft legislation on a merged scheme for the technical consultation. My noble friend, however, will have to wait for a fiscal event to hear more about the work which may flow from it.
My noble friend was also right to remind us of the importance of conservatoires and centres of excellence. Like the noble Baroness, Lady Merron, I look forward to the Yehudi Menuhin event later this year. I had the pleasure of going to one of the school leavers’ concerts with my noble friend Lord Blackwell last year. It really was remarkable. I began today by visiting Camberwell College of Arts, which has nurtured and developed world-leading arts and creativity in this country for 125 years. I went to its MA show to see some of the current postgraduate students’ work.
In the 2021-22 academic year, the Department for Education asked the Office for Students to invest an additional £10 million in our world-leading specialist providers. We have maintained that level of funding at £58 million for the current academic year.
Noble Lords rightly noted the creative industries’ impact on broad swathes of our lives as well as the economy. We know that this means it is more than just DCMS which has a role to play in providing support for our creative industries. I was much taken with the analogy given by the noble Lord, Lord Berkeley, of the Government as an orchestra and his desire to hear a more synchronous sound from us. The committee’s report is correct that a plan on its own is not enough and cross-departmental collaboration will be key to its success. However, I am delighted to say that we have made excellent progress in this area, as shown by the breadth of commitments contained in the sector vision. We are working with His Majesty’s Treasury on new funding for the sector; with the Department for Science, Innovation and Technology on cutting edge R&D through the CoSTAR programme and the next wave of creative clusters; with the Department for Business and Trade on boosting creative exports; and with the Department for Education to build the talent pipeline, through a range of skills and education initiatives.
I certainly agree with the noble Baroness, Lady Rebuck, that the skills pipeline is of critical importance to our creative industries. That is why I am delighted that this week we have announced further members of the panel who will be working with the wonderful noble Baroness, Lady Bull, to develop a cultural education plan for the Government. She has been working incredibly hard on it. I attended one of the listening exercises she held a few weeks ago and I was at the Royal Opera House to attend the head teachers’ symposium, where we gathered further thoughts to feed into it. I will begin next week at the Department for Education, meeting the whole panel with the noble Baroness. Furthermore, the upcoming round table on apprenticeships will be co-chaired by both the Education Secretary and my right honourable friend the Secretary of State for DCMS.
My department is working closely with the Department for Education and with the industry to drive forward the work to build a highly skilled workforce and support 1 million more jobs across the UK. We will publish the cultural education plan later this year and deliver the national plan for music education, driven by my noble friend Lady Fleet. That included £25 million in capital funding for musical instruments. We will explore opportunities for enrichment activities as part of our wraparound childcare provision. We will improve creative apprenticeships, with regards to small and medium enterprise engagement, training provision and the effectiveness and sustainability of the flexi-job model. We will support the rollout of T-levels, and complementary high-quality, employer-led level 3 qualifications, and we will work with the industry so that it can take advantage of skills boot camps at national and regional levels, and benefit from new local skills improvement plans and the lifelong loan entitlement in 2025.
Noble Lords asked for more detail on the creative careers programme. They are right that there can be a lack of understanding about jobs in the creative industries, such as over the sheer availability of roles that there are. For instance, it takes some 500 different jobs to make a single blockbuster movie. There are also misconceptions about the stability and accessibility of creative jobs, which is why the work that we are doing in the sector vision aims to improve understanding and challenge those misconceptions, including through the Discover Creative Careers programme.
The noble Lord, Lord Clement-Jones, was right to highlight the importance of freelancers in the creative industries. Last month we had a very good debate focused specifically on them. The policy and evidence centre delivered its independent review of job quality and working practices in the creative industries earlier this year, and that was co-funded by DCMS. The Government and the industry will set out an action plan to address the recommendations later in the year.
The noble Lord, Lord Foster of Bath, asked about the benefits system and how it interacts with freelancers in the creative sector. Again, we touched on that in the debate last month, and I know that Equity is holding an event next week. Unfortunately, I will be in the Chamber as we work on the Online Safety Bill, but I am glad that it is coming to engage colleagues from across the House and from the departments for work and education on it.
I will take back the idea from the noble Baroness, Lady Bonham-Carter, about the Education Secretary joining the Creative Industries Council but, as she may well know, Sir Peter Bazalgette, who jointly chairs it, is a non-executive director at the Department for Education, which helps with that join-up across government. I will also take back to colleagues in the Department for Education the point made by the noble Earl, Lord Clancarty, about the dichotomy with the Russell group universities.
Tackling skills gaps and shortages through all these initiatives is work that is being done. It requires significant evidence and data, which is another area on which we are working with the Department for Education. Our understanding of the creative industries through evidence and data is constantly expanding. Where gaps remain, such as forecasting skills needs, the DfE’s Unit for Future Skills is working to fill them, in partnership with analysts at DCMS and the Creative Industries Policy and Evidence Centre. Furthermore, inspired by the BFI’s film and high-end TV skills review, the Creative Industries Council has committed to delivering subsector skills reviews over the next year, giving a clearer picture of the gaps and shortages particular to each subsector of the creative industries.
I am incredibly proud of the creative industries sector—
Lord Clement-Jones (LD)
The Minister has covered a great deal of ground, but he has not covered the implementation of the Beijing treaty and the performing rights issues in the light of AI, or some of the other IP issues. Will he write?
Lord Parkinson of Whitley Bay (Con)
I will, although I may not be able to say much more than I am happy to say now in response to the noble Lord. The discussions on the code of practice are ongoing, and a public update will follow shortly; if it follows shortly enough for me to write with more detail, I will. If not, I hope he will be satisfied with that for now.
Many questions were noted in the debate over the past three hours, and I have tried to cover as many of them as I can. As noble Lords noted, the report touched on huge numbers of areas but also highlighted further areas for us all to explore in government and in your Lordships’ committee. I am very proud of the work that we are doing through the creative industries sector vision and, if I may say so, as a former member of the committee, I am very proud of the report that your Lordships’ committee has published.
The clear passion was evident from every noble Lord who spoke in this debate, and their anxiety to get this right for the future. Perhaps, on a sunny Friday, I may also say that I detected notes of optimism, both in the tributes being paid to new and established schools, at Old Street and in Camden. I hope that they will allow some of that optimism to extend to the work being done in government. I look forward to working with noble Lords from across the House to put it into action.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 6th July 2023
(10 months, 2 weeks ago)
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“(ba) the duties about assessments related to adult user empowerment set out in section (Assessment duties: user empowerment),”Member’s explanatory statement
This amendment ensures that the new duties in the new Clause proposed after Clause 11 in my name are imposed on providers of Category 1 services.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, as noble Lords will be aware, the Government removed the legal but harmful provisions from the Bill in another place, given concerns about freedom of expression. I know that many noble Lords would not have taken that approach, but I am grateful for their recognition of the will of the elected House in this regard as well as for their constructive contributions about ways of strengthening the Bill while continuing to respect that.
I am therefore glad to bring forward a package of amendments tabled in my name relating to adult safety. Among other things, these strengthen our existing approach to user empowerment and terms of service by rebalancing the power over the content adults see and interact with online, moving the choice away from unaccountable technology companies and towards individual users.
First, we are introducing a number of amendments, which I am pleased to say have the support of the Opposition Front Bench, which will introduce a comprehensive duty on category 1 providers to carry out a full assessment of the incidence of user empowerment content on their services. The amendments will mean that platforms can be held to account by Ofcom and their users when they fail to assess the incidence of this kind of content on their services or when they fail to offer their users an appropriate ability to control whether or not they view it.
Amendments 19 to 21 and 26—I am grateful to noble Lords opposite for putting their names to them—will strengthen the user empowerment content duty. Category 1 providers will now need proactively to ask their registered adult users how they would like the control features to be applied. We believe that these amendments achieve two important aims that your Lordships have been seeking from these duties: first, they ensure that they are more visible for registered adult users; and, secondly, they offer better protection for young adult users.
Amendments 55 and 56, tabled by the noble Lord, Lord Clement-Jones, my noble friend Lord Moylan and the noble Baroness, Lady Fox of Buckley, seek to provide users with a choice over how the tools are applied for each category of content set out in Clause 12(10), (11) and (12). The legislation gives platforms the flexibility to decide what tools they offer in compliance with Clause 12(2). A blanket approach is unlikely to be consistent with the duty on category 1 services to have particular regard to the importance of protecting users’ freedom of expression when putting these features in place. Additionally, the measures that Ofcom will recommend in its code of practice must consider the impact on freedom of expression so are unlikely to be a blanket approach.
Amendments 58 and 63 would require providers to set and enforce consistent terms of service on how they identify the categories of content to which Clause 12(2) applies; and to apply the features to content only when they have reasonable grounds to infer that it is user empowerment content. I assure noble Lords that the Bill’s freedom of expression duties will prevent providers overapplying the features or adopting an inconsistent or capricious approach. If they do, Ofcom can take enforcement action.
Amendments 59, 64 and 181, tabled by the noble Lord, Lord Clement-Jones, seek to require that the user empowerment and user verification features are provided at no cost. I reassure the noble Lord that the effect of these amendments is already achieved by the drafting of Clause 12. Category 1 providers will be compliant with their duties only if they proactively ask all registered users whether or not they want to use the user empowerment content features, which would not be possible with a paywall. Amendment 181 is similar and applies to user verification. While the Bill does not specify that verification must be free of charge, category 1 providers can meet the duties in the Bill only by offering all adult users the option to verify themselves.
Turning to Amendment 204, tabled by the noble Baroness, Lady Finlay of Llandaff, I share her concern about the impact that self-harm and suicide content can have. However, as I said in Committee, the Bill goes a long way to provide protections for both children and adults from this content. First, it includes the new criminal offence of encouraging or assisting self-harm. This then feeds through into the Bill’s illegal content duties. Companies will be required to take down such content when it is reported to them by users.
Beyond the illegal content duties, there are specific protections in place for children. The Government have tabled amendments designating content that encourages, promotes or provides instructions as a category of primary priority content, meaning that services will have to prevent children of all ages encountering it. For adults, the Government listened to concerns and, as mentioned, have strengthened the user empowerment duties to make it easier for adult users to opt in to using them by offering a forced choice. We have made a careful decision, however, to balance these protections with users’ right to freedom of expression and therefore cannot require platforms to treat legal content accessed by adults in a prescribed way. That is why, although I share the noble Baroness’s concerns about the type of content that she mentions, I cannot accept her amendment and hope that she will agree.
The Bill’s existing duties require category 1 platforms to offer users the ability to verify their identity. Clause 12 requires category 1 platforms to offer users the ability to filter out users who have not verified their identity. Amendment 183 from my noble friend Lord Moylan seeks to give Ofcom the discretion to decide when it is and is not proportionate for category 1 services to offer users the ability to verify their identity. We do not believe that these will be excessively burdensome, given that they will apply only to category 1 companies, which have the resource and capacity to offer such tools.
Amendment 182 would require platforms to offer users the option to make their verification status visible. The existing duty in Clause 57, in combination with the duty in Clause 12, will already provide significant protections for adults from anonymous abuse. Adult users will now be able to verify their own status and decide to interact only with other verified users, whether or not their status is visible. We do not believe that this amendment would provide additional protections.
The Government carefully considered mandating that all users display their verification status, which may heighten some users’ safety, but it would be detrimental to vulnerable users, who may need to remain anonymous for perfectly justifiable reasons. Further government amendments in my name will expand the types of information that Ofcom can require category 1, 2A and 2B providers to publish in their transparency reports in relation to user empowerment content.
Separately, but also related to transparency, government Amendments 189 and 202 make changes to Clause 67 and Schedule 8. These relate to category 1 providers’ duties to create clear and accessible terms of service and apply them consistently and transparently. Our amendments tighten these parts of the Bill so that all the providers’ terms through which they might indicate that a certain type of content is not allowed on their service, are captured by these duties.
I hope that noble Lords will therefore accept the Government amendments in this group and that my anticipatory remarks about their amendments will give them some food for thought as they make their contributions. I beg to move.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am happy to acknowledge and recognise what the Government did when they created user empowerment duties to replace legal but harmful. I think they were trying to counter the dangers of over-paternalism and illiberalism that oblige providers to protect adult users from content that allegedly would cause them harm.
At least the new provisions brought into the Bill have a different philosophy completely. They enhance users’ freedom as individuals and allow them to apply voluntary content filters and freedom of choice, on the principle that adults can make decisions for themselves.
In case anyone panics, I am not making a philosophical speech. I am reminding the Government that that is what they said to us—to everybody—“We are getting rid of legal but harmful because we believe in this principle”. I am worried that some of the amendments seem to be trying to backtrack from that different basis of the Bill—and that more liberal philosophy—to go back to the old legal but harmful. I say to the noble Lord, Lord Allan of Hallam, that the cat is distinctly not dead.
The purpose of Amendment 56 is to try to ensure that providers also cannot thwart the purpose of Clause 12 and make it more censorious and paternalistic. I am not convinced that the Government needed to compromise on this as I think Amendment 60 just muddies the waters and fudges the important principle that the Government themselves originally established.
Amendment 56 says that the default must be no filtering at all. Then users have to make an active decision to switch on the filtering. The default is that you should be exposed to a full flow of ideas and, if you do not want that, you have to actively decide not to and say that you want a bowdlerised or sanitised version.
Amendment 56 takes it a bit further, in paragraph (b), and applies different levels of filtering in terms of content of democratic importance and journalistic content. In the Bill itself, the Government accept the exceptional nature of those categories of content, and this just allows users to be able to do the same and say, “No; I might want to filter some things out but bear in mind the exceptional importance of democratic and journalistic content”. I worry that the government amendments signal to users that certain ideas are dangerous and must be hidden. That is my big concern. In other words, they might be legal but they are harmful: that is what I think these amendments try to counter.
One of the things that worries me about the Bill is the danger of echo chambers. I know we are concentrating on harms, but I think echo chambers are harmful. I started today quite early at Blue Orchid at 55 Broadway with a big crowd of sixth formers involved in debating matters. I complimented Keir Starmer on his speech on the importance of oracy and encouraging young people to speak. I stressed to all the year 12 and year 13 young people that the important thing was that they spoke out but also that they listened to contrary opinions and got out of their safe spaces and echo chambers. They were debating very difficult topics such as commercial surrogacy, cancel culture and the risks of contact sports. I am saying all that to them and then I am thinking, “We have now got a piece of legislation that says you can filter out all the stuff you do not want to hear and create your own safe space”. So I just get anxious that we do not inadvertently encourage in the young—I know this is for all adults—that antidemocratic tendency to not want to hear what you do not want to hear, even when it would be good to hear as many opinions as possible.
I also want to press the Minister on the problem of filtering material that targets race, religion, sex, sexual orientation, disability and gender reassignment. I keep trying to raise the problem that it could lead to diverse philosophical views around those subjects also being removed by overzealous filtering. You might think that you know what you are asking to be filtered out. If you say you want to filter out material that is anti-religion, you might not mean that you do not want any debates on religious tolerance. For example, there was that major controversy over the “The Lady of Heaven” film. I know the Minister was interested, as I was, in the dangers of censorship in relation to that. You would not want, because you said, “Don’t target me for my religion”, to not be able to access that debate.
I think there is a danger that we are handing a lot of power to filterers to make filtering decisions based on their values when we are not clear about what they are. Look at what has happened with the banks in the last few days. Their values have closed down people’s bank accounts because they disagree on values. Again, we say “Don’t target on race”, but I have been having lots of arguments with people recently who have accused the Government, through their Illegal Migration Bill, of being racist. I think we just need to know that we are not accepting an ideological filtering of what we see.
Amendment 63 is key because it requires providers’ terms of service to include provisions about how content to which Clause 12(2) applies is identified, precisely to try to counter these problems. It imposes a duty on providers to apply those provisions consistently, as the noble Lord, Lord Moylan, explained. The point that providers have to set out how they identify content that is allegedly hostile, for example, to religion, or racially abusive, is important because this is about empowering users. Users need to know whether this will be done by machine learning or will it be a human doing it. Do they look for red flags and, if so, what are the red flags? How are these things decided? That means that providers have to state clearly and be accountable for their definition of any criteria that could justify them filtering out and disturbing the flow of democratic information. It is all about transparency and accountability in that sense.
Finally, in relation to Amendment 183, I am worried about the notion of filtering out content from unverified users for a range of reasons. It indicates somehow that there is a direct link between being unverified or anonymous and harm or being dodgy, which I think that is illegitimate. It has already been explained that there will be a detrimental impact on certain organisations —we have talked about Reddit, but I like to remember Mumsnet. There are quite a lot of organisations with community-centred models, where the structure is that influencers broadcast to their followers and where there are pseudonymous users. Is the requirement to filter out those contributors likely to lead to those models collapsing? I need to be reassured on this because I am not convinced at all. As has been pointed out, there will be a two-tier internet because those who are unable or unwilling to disclose their identity online or to be verified by someone would be or could be shut out from public discussions. That is a very dangerous place to have ended up, even though I am sure it is not what the Government intend.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the broad, if not universal, support for the amendments that we have brought forward following the points raised in Committee. I apologise for anticipating noble Lords’ arguments, but I am happy to expand on my remarks in light of what they have said.
My noble friend Lord Moylan raised the question of non-verified user duties and crowdsourced platforms. The Government recognise concerns about how the non-verified user duties will work with different functionalities and platforms, and we have engaged extensively on this issue. These duties are only applicable to category 1 platforms, those with the largest reach and influence over public discourse. It is therefore right that such platforms have additional duties to empower their adult users. We anticipate that these features will be used in circumstances where vulnerable adults wish to shield themselves from anonymous abuse. If users decide that they are restricting their experience on a particular platform, they can simply choose not to use them. In addition, before these duties come into force, Ofcom will be required to consult effective providers regarding the codes of practice, at which point they will consider how these duties might interact with various functionalities.
My noble friend and the noble Lord, Lord Allan of Hallam, raised the potential for being bombarded with pop-ups because of the forced-choice approach that we have taken. These amendments have been carefully drafted to minimise unnecessary prompts or pop-ups. That is why we have specified that the requirement to proactively ask users how they want these tools to be applied is applicable only to registered users. This approach ensures that users will be prompted to make a decision only once, unless they choose to ignore it. After a decision has been made, the provider should save this preference and the user should not be prompted to make the choice again.
The noble Lord, Lord Clement-Jones, talked further about his amendments on the cost of user empowerment tools as a core safety duty in the Bill. Category 1 providers will not be able to put the user empowerment tools in Clause 12 behind a pay wall and still be compliant with their duties. That is because they will need to offer them to users at the first possible opportunity, which they will be unable to do if they are behind a pay wall. The wording of Clause 12(2) makes it clear that providers have a duty to include user empowerment features that an adult user may use or apply.
Lord Allan of Hallam (LD)
The Minister may not have the information today, but I would be happy to get it in writing. Can he clarify exactly what will be expected of a service that already prohibits all the Clause 12 bad stuff in their terms of service?
Lord Parkinson of Whitley Bay
I will happily write to the noble Lord on that.
Clause 12(4) further sets out that all search user empowerment content tools must be made available to all adult users and be easy to access.
The noble Lord, Lord Clement-Jones, on behalf of the noble Baroness, Lady Finlay, talked about people who will seek out suicide, self-harm or eating-disorder content. While the Bill will not prevent adults from seeking out legal content, it will introduce significant protections for adults from some of the most harmful content. The duties relating to category 1 services’ terms of service are expected hugely to improve companies’ own policing of their sites. Where this content is legal and in breach of the company’s terms of service, the Bill will force the company to take it down.
We are going even further by introducing a new user empowerment content-assessment duty. This will mean that where content relates to eating disorders, for instance, but which is not illegal, category 1 providers need fully to assess the incidence of this content on their service. They will need clearly to publish this information in accessible terms of service, so users will be able to find out what they can expect on a particular service. Alternatively, if they choose to allow suicide, self-harm or eating content disorder which falls into the definition set out in Clause 12, they will need proactively to ask users how they would like the user empowerment content features to be applied.
My noble friend Lady Morgan was right to raise the impact on vulnerable people or people with disabilities. While we anticipate that the changes we have made will benefit all adult users, we expect them particularly to benefit those who may otherwise have found it difficult to find and use the user empowerment content features independently—for instance, some users with types of disabilities. That is because the onus will now be on category 1 providers proactively to ask their registered adult users whether they would like these tools to be applied at the first possible opportunity. The requirement also remains to ensure that the tools are easy to access and to set out clearly what tools are on offer and how users can take advantage of them.
Lord Clement-Jones (LD)
My Lords, does the Minister have any more to say on identity verification?
Lord Parkinson of Whitley Bay (Con)
I am being encouraged to be brief so, if I may, I will write to the noble Lord on that point.
Member’s explanatory statement
This amendment ensures that the new duties in Clause 19 proposed by amendments in my name to that clause are imposed on providers of Category 1 services.
Member’s explanatory statement
This amendment inserts a signpost to the new duties imposed on providers of Category 1 services by the new Clause proposed after Clause 11 in my name.
Lord Parkinson of Whitley Bay (Con)
My Lords, I will speak to the government amendments now but not anticipate the non-government amendments in this group.
As noble Lords know, protecting children is a key priority for this Bill. We have listened to concerns raised across your Lordships’ House about ensuring that it includes the most robust protections for children, particularly from harmful content such as pornography. We also recognise the strength of feeling about ensuring the effective use of age-assurance measures, by which we mean age verification and age estimation, given the important role they will have in keeping children safe online.
I thank the noble Baroness, Lady Kidron, and my noble friends Lady Harding of Winscombe and Lord Bethell in particular for their continued collaboration over the past few months on these issues. I am very glad to have tabled a significant package of amendments on age assurance. These are designed to ensure that children are prevented from accessing pornography, whether it is published by providers in scope of the Part 5 duties or allowed by user-to-user services that are subject to Part 3 duties. The Bill will be explicit that services will need to use highly effective age verification or age estimation to meet these new duties.
These amendments will also ensure that there is a clear, privacy-preserving and future-proof framework governing the use of age assurance, which will be overseen by Ofcom. Our amendments will, for the first time, explicitly require relevant providers to use age verification or age estimation to protect children from pornography. Publishers of pornographic content, which are regulated in Part 5, will need to use age verification or age estimation to ensure that children are not normally able to encounter content which is regulated provider pornographic content on their service.
Further amendments will ensure that, where such tools are proactive technology, Ofcom may also require their use for Part 5 providers to ensure compliance. Amendments 279 and 280 make further definitional changes to proactive technology to ensure that it can be recommended or required for this purpose. To ensure parity across all regulated pornographic content in the Bill, user-to-user providers which allow pornography under their terms of service will also need to use age verification or age estimation to prevent children encountering pornography where they identify such content on their service. Providers covered by the new duties will also need to ensure that their use of these measures meets a clear, objective and high bar for effectiveness. They will need to be highly effective at correctly determining whether a particular user is a child. This new bar will achieve the intended outcome behind the amendments which we looked at in Committee, seeking to introduce a standard of “beyond reasonable doubt” for age assurance for pornography, while avoiding the risk of legal challenge or inadvertent loopholes.
To ensure that providers are using measures which meet this new bar, the amendments will also require Ofcom to set out, in its guidance for Part 5 providers, examples of age-verification and age-estimation measures which are highly effective in determining whether a particular user is a child. Similarly, in codes of practice for Part 3 providers, Ofcom will need to recommend age-verification or age-estimation measures which can be used to meet the new duty to use highly effective age assurance. This will meet the intent of amendments tabled in Committee seeking to require providers to use measures in a manner approved by Ofcom.
I confirm that the new requirement for Part 3 providers will apply to all categories of primary priority content that is harmful to children, not just pornography. This will mean that providers which allow content promoting or glorifying suicide, self-harm and eating disorders will also be required to use age verification or age estimation to protect children where they identify such content on their service.
Further amendments clarify that a provider can conclude that children cannot access a service—and therefore that the service is not subject to the relevant children’s safety duty—only if it uses age verification or age estimation to ensure that children are not normally able to access the service. This will ensure consistency with the new duties on Part 3 providers to use these measures to prevent children’s access to primary priority content. Amendment 34 inserts a reference to the new user empowerment duties imposed on category 1 providers in the child safety duties.
Amendment 214 will require Part 5 providers to publish a publicly available summary of the age-verification or age-estimation measures that they are using to ensure that children are not normally able to encounter content that is regulated provider pornographic content on their service. This will increase transparency for users on the measures that providers are using to protect children. It also aligns the duties on Part 5 providers with the existing duties on Part 3 providers to include clear information in terms of service on child protection measures or, for search engines, a publicly available statement on such measures.
I thank the noble Baroness, Lady Kidron, for her tireless work relating to Amendment 124, which sets out a list of age-assurance principles. This amendment clearly sets out the important considerations around the use of age-assurance technologies, which Ofcom must have regard to when producing its codes of practice. Amendment 216 sets out the subset of principles which apply to Part 5 guidance. Together, these amendments ensure that providers are deploying age-assurance technologies in an appropriate manner. These principles appear as a full list in Schedule 4. This ensures that the principles can be found together in one place in the Bill. The wider duties set out in the Bill ensure that the same high standards apply to both Part 3 and Part 5 providers. These principles have been carefully drafted to avoid restating existing duties in the Bill. In accordance with good legislative drafting practice, the principles also do not include reference to other legislation which already directly applies to providers. In its relevant guidance and codes, however, Ofcom may include such references as it deems appropriate.
Finally, I highlight the critical importance of ensuring that users’ privacy is protected throughout the age-assurance processes. I make it clear that privacy has been represented in these principles to the furthest degree possible, by referring to the strong safeguards for user privacy already set out in the Bill.
In recognition of these new principles and to avoid duplication, Amendment 127 requires Ofcom to refer to the age-assurance principles, rather than to the proactive technology principles, when recommending age-assurance technologies that are also proactive technology.
We have listened to the points raised by noble Lords about the importance of having clear and robust definitions in the Bill for age assurance, age verification and age estimation. Amendment 277 brings forward those definitions. We have also made it clear that self-declared age, without additional, more robust measures, is not to be regarded as age verification or age estimation for compliance with duties set out in the Bill. Amendment 278 aligns the definition of proactive technology with these new definitions.
The Government are clear that the Bill’s protections must be implemented as quickly as is feasible. This entails a complex programme of work for the Government and Ofcom, as well as robust parliamentary scrutiny of many parts of the regime. All of this will take time to deliver. It is right, however, that we set clear expectations for when the most pressing parts of the regulation—those targeting illegal content and protecting children—should be in place. These amendments create an 18-month statutory deadline from the day the Bill is passed for Ofcom’s implementation of those areas. By this point, Ofcom must submit draft codes of practice to the Secretary of State to be laid in Parliament and publish its final guidance relating to illegal content duties, duties about content harmful to children and duties about pornography content in Part 5. This also includes relevant cross-cutting duties, such as content reporting procedures, which are relevant to illegal content and content harmful to children.
In line with convention, most of the Bill’s substantive provisions will be commenced two months after Royal Assent. These amendments ensure that a set of specific clauses will commence earlier—on the day of Royal Assent—allowing Ofcom to begin vital implementation work sooner than it otherwise would have done. Commencing these clauses early will enable Ofcom to launch its consultation on draft codes of practice for illegal content duties shortly after Royal Assent.
Amendment 271 introduces a new duty on Ofcom to produce and publish a report on in-scope providers’ use of age-assurance technologies, and for this to be done within 18 months of the first date on which both Clauses 11 and 72(2), on pornography duties, are in force. I thank the noble Lord, Lord Allan of Hallam, for the amendment he proposed in Committee, to which this amendment responds. We believe that this amendment will improve transparency in how age-assurance solutions are being deployed by providers, and the effectiveness of those solutions.
Finally, we are also making a number of consequential and technical amendments to the Bill to split Clauses 11 and 25 into two parts. This is to ensure these do not become unwieldy and that the duties are clear for providers and for Ofcom. I beg to move.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 6th July 2023
(10 months, 2 weeks ago)
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(a) software or an automated tool or algorithm applied by the provider or by a person acting on behalf of the provider, or(b) an automated tool or algorithm made available on the service by the provider or by a person acting on behalf of the provider.”Member’s explanatory statement
This amendment is about what counts as “provider content” for the purposes of the exemption in paragraph 4 of Schedule 1 of the Bill (which provides that limited functionality services are exempt). Words are added to expressly cover the case where an automated tool or algorithm is made available on the service by a provider, such as a generative AI bot.
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 protecting children against accessing pornography online. As technology evolves, it is important that the regulatory framework introduced by the Bill keeps pace with emerging risks to children and exposure to pornography in new forms, such as generative artificial intelligence.
Part 5 of the Bill has been designed to be future-proof, and we assess that it would already capture AI-generated pornography. Our Amendments 206 and 209 will put beyond doubt that content is “provider pornographic content” where it is published or displayed on a Part 5 service by means of an automated tool or algorithm, such as a generative AI bot, made available on the service by a provider. Amendments 285 and 293 make clear that the definition of an automated tool includes a bot. Amendment 276 clarifies the definition of a provider of a Part 5 service, to make clear that a person who controls an AI bot that generates pornography can be regarded as the provider of a service.
Overall, our amendments provide important certainty for users, providers and Ofcom on the services and content in scope of the Part 5 duties. This will ensure that the new, robust duties for Part 5 providers to use age verification or age estimation to prevent children accessing provider pornographic content will also extend to AI-generated pornography. I beg to move.
Baroness Harding of Winscombe (Con)
My Lords, the noble Baroness, Lady Kidron, has unfortunately been briefly detained. If you are surprised to see me standing up, it is because I am picking up for her. I start by welcoming these amendments. I am grateful for the reaction to the thought-provoking debate that we had in Committee. I would like to ask a couple of questions just to probe the impact around the edges.
Amendment 27 looks as if it implies that purely content-generating machine-learning or AI bots could be excluded from the scope of the Bill, rather than included, which is the opposite of what we were hoping to achieve. That may be us failing to understand the detail of this large body of different amendments, but I would welcome my noble friend the Minister’s response to make sure that in Amendment 27 we are not excluding harm that could be generated by some form of AI or machine-learning instrument.
Maybe I can give my noble friend the Minister an example of what we are worried about. This is a recent scenario that noble Lords may have seen in the news, of a 15 year-old who asked, “How do I have sex with a 30 year-old?”. The answer was given in forensic detail, with no reference to the fact that it would in fact be statutory rape. Would the regulated service, or the owner of the regulated service that generated that answer, be included or excluded as a result of Amendment 27? That may be my misunderstanding.
This group is on AI-generated pornography. My friend, the noble Baroness, Lady Kidron, and I are both very concerned that it is not just about pornography, and that we should make sure that AI is included in the Bill. Specifically, many of us with teenage children will now be learning how to navigate the Snap AI bot. Would harm generated by that bot be captured in these amendments, or is it only content that is entirely pornographic? I hope that my noble friend the Minister can clarify both those points, then we will be able to support all these amendments.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has been a short but important debate and I am grateful to noble Lords for their broad support for the amendments here and for their questions. These amendments will ensure that services on which providers control a generative tool, such as a generative AI bot, are in scope of Part 5 of the Bill. This will ensure that children are protected from any AI-generated pornographic content published or displayed by provider-controlled generative bots. These changes will not affect the status of any non-pornographic AI-generated content, or AI-generated content shared by users.
We are making a minor change to definitions in Part 3 to ensure that comments or reviews on content generated by a provider-controlled artificial intelligence source are not regulated as user-generated content. This is consistent with how the Bill treats comments and reviews on other provider content. These amendments do not have any broader impact on the treatment of bots by Part 3 of the Bill’s regime beyond the issue of comments and reviews. The basis on which a bot will be treated as a user, for example, remains unchanged.
I am grateful to the noble Lord, Lord Clement-Jones, for degrouping his Amendment 152A so that I can come back more fully on it in a later group and I am grateful for the way he spoke about it in advance. I am grateful too for my noble friend Lady Harding’s question. These amendments will ensure that providers which control a generative tool on a service, such as a generative AI bot, are in scope of Part 5 of the Bill. A text-only generative AI bot would not be in scope of Part 5. It is important that we focus on areas which pose the greatest risk of harm to children. There is an exemption in Part 5 for text-based provider pornographic content because of the limited risks posed by published pornographic content. This is consistent with the approach of Part 3 of the Digital Economy Act 2017 and its provisions to protect children from commercial online pornography, which did not include text-based content in scope.
The right reverend Prelate the Bishop of Oxford is right to ask whether we think this is enough. These changes certainly help. The way that the Bill is written in a technology-neutral way will help us to future proof it but, as we have heard throughout the passage of the Bill, we all know that this area of work will need constant examination and scrutiny. That is why the Bill is subject the post-Royal Assent review and scrutiny that it is and why we are grateful for the anticipation noble Lords and Members of Parliament in the other place have already given to ensuring that it delivers on what we want to see. I believe these amendments, which put out of doubt important provisions relating to generative AI, are a helpful addition and I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, much like the noble Lord, Lord Clement-Jones, I started off being quite certain I knew what to say about these amendments. I even had some notes—unusual for me, I know—but I had to throw them away, which I always do with my notes, because the arguments have been persuasive. That is exactly why we are here in Parliament discussing things: to try to reach common solutions to difficult problems.
We started with a challenge to the Minister to answer questions about scope, exemptions and discretion in relation to a named service—Wikipedia. However, as the debate went on, we came across the uncomfortable feeling that, having got so far into the Bill and agreed a lot of amendments today improving it, we are still coming up against quite stubborn issues that do not fit neatly into the categorisation and structures that we have. We do not seem to have the right tools to answer the difficult questions before us today, let alone the myriad questions that will come up as the technology advances and new services come in. Why have we not already got solutions to the problems raised by Amendments 281, 281A and 281B?
There is also the rather difficult idea we have from the noble Lord, Lord Russell, of dark patterns, which we need to filter into our thinking. Why does that not fit into what we have got? Why is it that we are still worried about Wikipedia, a service for public good, which clearly has risks in it and is sometimes capable of making terrible mistakes but is definitely a good thing that should not be threatened by having to conform with a structure and a system which we think is capable of dealing with some of the biggest and most egregious companies that are pushing stuff at us in the way that we have talked about?
I have a series of questions which I do not have the answers to. I am looking forward to the Minister riding to my aid on a white charger of enormous proportions and great skill which will take us out without having to fall over any fences.
If I may, I suggest to the Minister a couple of things. First, we are stuck on the word “content”. We will come back to that in the future, as we still have an outstanding problem about exactly where the Bill sets it. Time and again in discussions with the Bill team and with Ministers we have been led back to the question of where the content problem lies and where the harms relate to that, but this little debate has shown beyond doubt that harm can occur independent of and separate from content. We must have a solution to that, and I hope it will be quick.
Secondly, when approaching anybody or anything or any business or any charity that is being considered in scope for this Bill, we will not get there if we are looking only at the question of its size and its reach. We have to look at the risks it causes, and we have to drill down hard into what risks we are trying to deal with using our armoury as we approach these companies, because that is what matters to the children, vulnerable people and adults who would suffer otherwise, and not the question of whether or not these companies are big or small. I think there are solutions to that and we will get there, but, when he comes to respond, the Minister needs to demonstrate to us that he is still willing to listen and think again about one or two issues. I look forward to further discussions with him.
Lord Parkinson of Whitley Bay (Con)
I am grateful to noble Lords for their contributions during this debate. I am sympathetic to arguments that we must avoid imposing disproportionate burdens on regulated services, and particularly that the Bill should not inhibit services from providing valuable information which is of benefit to the public. However, I want to be clear that that is why the Bill has been designed in the way that it has. It has a broad scope in order to capture a range of services, but it has exemptions and categorisations built into it. The alternative would be a narrow scope, which would be more likely inadvertently to exempt risky sites or to displace harm on to services which we would find are out of scope of the Bill. I will disappoint noble Lords by saying that I cannot accept their amendments in this group but will seek to address the concerns that they have raised through them.
The noble Lord, Lord Allan, asked me helpfully at the outset three questions, to which the answers are yes, no and maybe. Yes, Wikipedia and OpenStreetMap will be in scope of the Bill because they allow users to interact online; no, we do not believe that they would fall under any of the current exemptions in the Bill; and the maybe is that Ofcom does not have the discretion to exempt services but the Secretary of State can create additional exemptions for further categories of services if she sees fit.
I must also say maybe to my noble friend Lord Moylan on his point about Wikipedia—and with good reason. Wikipedia, as I have just explained, is in scope of the Bill and is not subject to any of its exemptions. I cannot say how it will be categorised, because that is based on an assessment made by the independent regulator, but I reassure my noble friend that it is not the regulator but the Secretary of State who will set the categorisation thresholds through secondary legislation; that is to say, a member of the democratically elected Government, accountable to Parliament, through legislation laid before that Parliament. It will then be for Ofcom to designate services based on whether or not they meet those thresholds.
It would be wrong—indeed, nigh on impossible—for me to second-guess that designation process from the Dispatch Box. In many cases it is inherently a complex and nuanced matter since, as my noble friend Lady Harding said, many services change over time. We want to keep the Bill’s provisions flexible as services change what they do and new services are invented.
Lord Parkinson of Whitley Bay (Con)
I would just like to finish my thought on Wikipedia. Noble Lords are right to mention it and to highlight the great work that it does. My honourable friend the Minister for Technology and the Digital Economy, Paul Scully, met Wikipedia yesterday to discuss its concerns about the Bill. He explained that the requirements for platforms in this legislation will be proportionate to the risk of harm, and that as such we do not expect the requirements for Wikipedia to be unduly burdensome.
Lord Allan of Hallam (LD)
I am computing the various pieces of information that have just been given, and I hope the Minister can clarify whether I have understood them correctly. These services will be in scope as user-to-user services and do not have an exemption, as he said. The Secretary of State will write a piece of secondary legislation that will say, “This will make you a category 1 service”—or a category 2 or 2B service—but, within that, there could be text that has the effect that Wikipedia is in none of those categories. So it and services like it could be entirely exempt from the framework by virtue of that secondary legislation. Is that a correct interpretation of what he said?
Lord Parkinson of Whitley Bay (Con)
The Secretary of State could create further exemptions but would have to bring those before Parliament for it to scrutinise. That is why there is a “maybe” in answer to his third question in relation to any service. It is important for the legislation to be future-proofed that the Secretary of State has the power to bring further categorisations before Parliament for it to discuss and scrutinise.
Lord Allan of Hallam (LD)
My Lords, I will keep pressing this point because it is quite important, particularly in the context of the point made by the noble Baroness, Lady Kidron, about categorisation, which we will debate later. There is a big difference when it comes to Schedule 11, which defines the categorisation scheme: whether in the normal run of business we might create an exemption in the categorisation secondary legislation, or whether it would be the Secretary of State coming back with one of those exceptional powers that the Minister knows we do not like. He could almost be making a case for why the Secretary of State has to have these exceptional powers. We would be much less comfortable with that than if the Schedule 11 categorisation piece effectively allowed another class to be created, rather than it being an exceptional Secretary of State power.
Lord Parkinson of Whitley Bay (Con)
I do not think that it is, but it will be helpful to have a debate on categorisation later on Report, when we reach Amendment 245, to probe this further. It is not possible for me to say that a particular service will certainly be categorised one way or another, because that would give it carte blanche and we do not know how it may change in the future—estimable though I may think it is at present. That is the difficulty of setting the precise parameters that the noble Baroness, Lady Fox, sought in her contribution. We are setting broad parameters, with exemptions and categorisations, so that the burdens are not unduly heavy on services which do not cause us concern, and with the proviso for the Secretary of State to bring further exemptions before Parliament, as circumstances strike her as fit, for Parliament to continue the debate we are having now.
The noble Baroness, Lady Kidron, in her earlier speech, asked about the functionalities of user-to-user services. The definitions of user-to-user services are broad and flexible, to capture new and changing services. If a service has both user-to-user functionality and a search engine, it will be considered a combined service, with respective duties for the user-to-user services which form part of its service and search duties in relation to the search engine.
I reassure my noble friend Lady Harding of Winscombe that the Bill will not impose a disproportionate burden on services, nor will it impede the public’s access to valuable content. All duties on services are proportionate to the risk of harm and, crucially, to the capacity of companies. The Bill’s proportionate design means that low-risk services will have to put in place only measures which reflect the risk of harm to their users. Ofcom’s guidance and codes of practice will clearly set out how these services can comply with their duties. We expect that it will set out a range of measures and steps for different types of services.
Moreover, the Bill already provides for wholesale exemptions for low-risk services and for Ofcom to exempt in-scope services from requirements such as record-keeping. That will ensure that there are no undue burdens to such services. I am grateful for my noble friend’s recognition, echoed by my noble friend Lady Stowell of Beeston, that “non-profit” does not mean “not harmful” and that there can be non-commercial services which may pose harms to users. That is why it is important that there is discretion for proper assessment.
Amendment 30 seeks to allow Ofcom to withdraw the exemptions listed in Schedule 1 from the Bill. I am very grateful to my noble friend Lord Moylan for his time earlier this week to discuss his amendment and others. We have looked at it, as I promised we would, but I am afraid that we do not think that it would be appropriate for Ofcom to have this considerable power—my noble friend is already concerned that the regulator has too much.
The Bill recognises that it may be necessary to remove certain exemptions if there is an increased risk of harm from particular types of services. That is why the Bill gives the Secretary of State the power to remove particular exemptions, such as those related to services which have limited user-to-user functionality and those which offer one-to-one live aural communications. These types of services have been carefully selected as areas where future changes in user behaviour could necessitate the repeal or amendment of an exemption in Schedule 1. This power is intentionally limited to only these types of services, meaning that the Secretary of State will not be able to remove exemptions for comments on recognised news publishers’ sites. That is in recognition of the Government’s commitment to media freedom and public debate. It would not be right for Ofcom to have the power to repeal those exemptions.
Amendments 281 and 281B, in the name of the noble Lord, Lord Russell of Liverpool, are designed to ensure that the lists of features under the definition of “functionality” in the Bill apply to all regulated services. Amendment 281A aims to add additional examples of potentially addictive functionalities to the Bill’s existing list of features which constitute a “functionality”. I reassure him and other noble Lords that the list of functionalities in the Bill is non-exhaustive. There may be other functionalities which could cause harm to users and which services will need to consider as part of their risk assessment duties. For example, if a provider’s risk assessment identifies that there are functionalities which risk causing significant harm to an appreciable number of children on its service, the Bill will require the provider to put in place measures to mitigate and manage that risk.
He and other noble Lords spoke about the need for safety by design. I can reassure them this is already built into the framework of the Bill, which recognises how functionalities including many of the things mentioned today can increase the risk of harm to users and will encourage the safe design of platforms.
Amendments 281 and 281B have the effect that regulated services would need to consider the risk of harm of functionalities that are not relevant for their kind of service. For example, sharing content with other users is a functionality of user-to-user services, which is not as relevant for search services. The Bill already outlines specific features that both user-to-user and search services should consider, which are the most relevant functionalities for those types of service. Considering these functionalities would create an unnecessary burden for regulated services which would detract from where their efforts can best be focused. That is why I am afraid I cannot accept the amendments that have been tabled.
Lord Clement-Jones (LD)
My Lords, surely it is the role of the regulators to look at functionalities of this kind. The Minister seemed to be saying that it would be an undue burden on the regulator. Is not that exactly what we are meant to be legislating about at this point?
Lord Parkinson of Whitley Bay (Con)
Perhaps I was not as clear as I could or should have been. The regulator will set out in guidance the duties that fall on the businesses. We do not want the burden on the business to be unduly heavy, but there is an important role for Ofcom here. I will perhaps check—
Lord Clement-Jones (LD)
But these functionalities are a part of their business model, are they not?
Lord Parkinson of Whitley Bay (Con)
Hence Ofcom will make the assessments about categorisation based on that. Maybe I am missing the noble Lord’s point.
Lord Clement-Jones (LD)
I think we may need further discussions on the amendment from the noble Lord, Lord Russell.
Lord Parkinson of Whitley Bay (Con)
I will check what I said but I hope that I have set out why we have taken the approach that we have with the broad scope and the exemptions and categorisations that are contained in it. With that, I urge the noble Lord to withdraw his amendment.
Lord Allan of Hallam (LD)
My Lords, that was a very useful debate. I appreciate the Minister’s response and his “yes, no, maybe” succinctness, but I think he has left us all more worried than when the debate started. My noble friend Lord Clement-Jones tied it together nicely. What we want is for the regulator to be focused on the greatest areas of citizen risk. If there are risks that are missing, or things that we will be asking the regulator to do that are a complete waste of time because they are low risk, then we have a problem. We highlighted both those areas. The noble Lord, Lord Russell, rightly highlighted that we are not content with just “content” as the primary focus of the legislation; it is about a lot more than content. In my amendment and those by the noble Lord, Lord Moylan, we are extremely worried—and remain so—that the Bill creates a framework that will trap Wikipedia and services like it, without that being our primary intention. We certainly will come back to this in later groups; I will not seek to press the amendment now, because there is a lot we all need to digest. However, at the end of this process, we want to get to point where the regulator is focused on things that are high risk to the citizen and not wasting time on services that are very low risk. With that, I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment is consequential on the new Clauses proposed to be inserted after Clause 54 in my name setting out which kinds of content count as primary priority content and priority content harmful to children.
Lord Parkinson of Whitley Bay (Con)
My Lords, the government amendments in this group relate to the categories of primary priority and priority content that is harmful to children.
Children must be protected from the most harmful online content and activity. As I set out in Committee, the Government have listened to concerns about designating primary priority and priority categories of content in secondary legislation and the need to protect children from harm as swiftly as possible. We have therefore tabled amendments to set out these categories in the Bill. I am grateful for the input from across your Lordships’ House in finalising the scope of these categories.
While it is important to be clear about the kinds of content that pose a risk of harm to children, I acknowledge what many noble Lords raised during our debates in Committee, which is that protecting children from online harm is not just about content. That is why the legislation takes a systems and processes approach to tackling the risk of harm. User-to-user and search service providers will have to undertake comprehensive, mandatory risk assessments of their services and consider how factors such as the design and operation of a service and its features and functionalities may increase the risk of harm to children. Providers must then put in place measures to manage and mitigate these risks, as well as systems and processes to prevent and protect children from encountering the categories of harmful content.
We have also listened to concerns about cumulative harm. In response to this, the Government have tabled amendments to Clause 209 to make it explicit that cumulative harm is addressed. This includes cumulative harm that results from algorithms bombarding a user with content, or where combinations of functionality cumulatively drive up the risk of harm. These amendments will be considered in more detail under a later group of amendments, but they are important context for this discussion.
I turn to the government amendments, starting with Amendment 171, which designates four categories of primary priority content. First, pornographic content has been defined in the same way as in Part 5—to give consistent and comprehensive protection for children, regardless of the type of service on which the pornographic content appears. The other three categories capture content which encourages, promotes or provides instructions for suicide, self-harm or eating disorders. This will cover, for example, glamorising or detailing methods for carrying out these dangerous activities. Designating these as primary priority content will ensure that the most stringent child safety duties apply.
Government Amendment 172 designates six categories of priority content. Providers will be required to protect children from encountering a wide range of harmful violent content, which includes depictions of serious acts of violence or graphic injury against a person or animal, and the encouragement and promotion of serious violence, such as content glamorising violent acts. Providers will also be required to protect children from encountering abusive and hateful content, such as legal forms of racism and homophobia, and bullying content, which sadly many children experience online.
The Government have heard concerns from the noble Baronesses, Lady Kidron and Lady Finlay of Llandaff, about extremely dangerous activities being pushed to children as stunts, and content that can be harmful to the health of children, including inaccurate health advice and false narratives. As such, we are designating content that encourages dangerous stunts and challenges as a category of priority content, and content which encourages the ingestion or inhalation of, or exposure to, harmful substances, such as harmful abortion methods designed to be taken by a person without medical supervision.
Amendment 174, from the noble Baroness, Lady Kidron, seeks to add “mis- and disinformation” and “sexualised content” to the list of priority content. On the first of these, I reiterate what I said in Committee, which is that the Bill will protect children from harmful misinformation and disinformation where it intersects with named categories of primary priority or priority harmful content—for example, an online challenge which is promoted to children on the basis of misinformation or disinformation, or abusive content with a foundation in misinformation or disinformation. However, I did not commit to misinformation and disinformation forming its own stand-alone category of priority harmful content, which could be largely duplicative of the categories that we have already included in the Bill and risks capturing a broad range of legitimate content.
We have already addressed key concerns related to misinformation and disinformation content which presents the greatest risk to children by including content which encourages the ingestion or inhalation of, or exposure to, harmful substances to the list of priority categories. However, the term “mis- and disinformation”, as proposed by Amendment 174, in its breadth and subjectivity risks inadvertently capturing a wide range of content resulting in disproportionate, excessive censorship of the content children see online, including in areas of legitimate debate. The harm arising from misinformation or disinformation usually arises from the context or purpose of the content, rather than the mere fact that it is untrue. Our balanced approach ensures that children are protected from the most prevalent and concerning harms associated with misinformation and disinformation.
Baroness Ritchie of Downpatrick (Lab)
My Lords, we spent a lot of time in Committee raising concerns about how pornography and age verification were going to operate across all parts of the Bill. I have heard what the Minister has said in relation to this group, priority harms to children, which I believe is one of the most important groups under discussion in the Bill. I agree that children must be protected from the most harmful content online and offline.
I am grateful to the Government for having listened carefully to the arguments put forward by the House in this regard and commend the Minister for all the work he and his team have done since them. I also commend the noble Lord, Lord Bethell. He and I have been in some discussion between Committee and now in relation to these amendments.
In Committee, I argued for several changes to the Bill which span three groups of amendments. One of my concerns was that pornography should be named as a harm in the Bill. I welcome the Government’s Amendment 171, which names pornography as a primary priority content. I also support Amendment 174 in the name of the noble Baroness, Lady Kidron. She is absolutely right that sexualised content can be harmful to children if not age appropriate and, in that regard, before she even speaks, I ask the Minister tousb reconsider his views on this amendment and to accept it.
Within this group are the amendments which move the definition of “pornographic content” from Part 5 to Clause 211. In that context, I welcome the Government’s announcement on Monday about a review of the regulation, legislation and enforcement of pornography offences.
In Committee, your Lordships were very clear that there needed to be a consistent approach across the Bill to the regulation of pornography. I am in agreement with the amendments tabled in Committee to ensure that consistency applies across all media. In this regard, I thank the noble Baroness, Lady Benjamin, for her persistence in raising this issue. I also thank my colleagues on the Opposition Front Bench, the noble Lord, Lord Stevenson, and the noble Baroness, Lady Merron.
I appreciate that the Government made this announcement only three days ago, but I hope the Minister will set out a timetable for publishing the terms of reference and details of how this review will take place. The review is too important to disappear into the long grass over the Summer Recess, never to be heard of again, so if he is unable to answer my question today, will he commit to writing to your Lordships with the timeframe before the House rises for the summer? Will he consider the active involvement of external groups in this review, as much expertise lies outside government in this area? In that regard, I commend CARE, CEASE and Barnardo’s for all their input into the debates on the Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I think the noble Baroness’s comments relate to the next group of amendments, on pornography. She might have skipped ahead, but I am grateful for the additional thinking time to respond to her questions. Perhaps she will save the rest of her remarks for that group.
Baroness Ritchie of Downpatrick (Lab)
I thank the Minister for that. In conclusion, I hope he will reflect on those issues and come back, maybe at the end of the next group. I remind the House that in February the APPG on Commercial Sexual Exploitation, in its inquiry on pornography, recommended that the regulation of pornography should be consistent across all online platforms and between the online and offline spheres. I hope we can incorporate the voices I have already mentioned in the NGO sphere in order to assist the Government and both Houses in ensuring that we regulate the online platforms and that children are protected from any harms that may arise.
Lord Stevenson of Balmacara (Lab)
My Lords, like the noble Baroness, Lady Harding, I want to make it very clear that I think the House as a whole welcomes the change of heart by the Government to ensure that we have in the Bill the two sides of the question of content that will be harmful to children. We should not walk away from that. We made a big thing of this in Committee. The Government listened and we have now got it. The fact that we do not like it—or do not like bits of it—is the price we pay for having achieved something which is, probably on balance, good.
The shock comes from trying to work out why it is written the way it is, and how difficult it is to see what it will mean in practice when companies working to Ofcom’s instructions will take this and make this happen in practice. That lies behind, I think I am right in saying, the need for the addition to Amendment 172 from the noble Baroness, Lady Kidron, which I have signed, along with the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford. Both of them have spoken well in support of it and I do not need to repeat those points.
Somehow, in getting the good of Amendments 171 and 172, we have lost the flexibility that we think we want as well to try to get that through. The flexibility does exist, because the Government have retained powers to amend and change both primary priority content that is harmful to children and the primary content. Therefore, subject to approval through the secondary legislation process, this House will continue to have a concern about that—indeed, both Houses will.
Somehow, however, that does not get to quite where the concern comes from. The concern should be both the good points made by the noble Lord, Lord Russell—I should have caught him up in the gap and said I had already mentioned the fact that we had been together at the meeting. He found some additional points to make which I hope will also be useful to future discussion. I am glad he has done that. He is making a very good point in relation to cultural context and the work that needs to go on—which we have talked about in earlier debates—in order to make this live: in other words, to make people who are responsible for delivering this through Ofcom, but also those who are delivering it through companies, to understand the wider context. In that sense, clearly we need the misinformation/disinformation side of that stuff. It is part and parcel of the problems we have got. But more important even than that is the need to see about the functionality issues. We have come back to that. This Bill is about risk. The process that we will be going through is about risk assessment and making sure that the risks are understood by those who deliver services, and the penalties that follow the failure of the risk assessment process delivering change that we want to see in society.
However, it is not just about content. We keep saying that, but we do not see the changes around it. The best thing that could happen today would be if the Minister in responding accepted that these clauses are good—“Tick, we like them”—but could we just not finalise them until we have seen the other half of that, which is: what are the other risks to which those users of services that we have referred to and discussed are receiving through the systemic design processes that are designed to take them in different directions? It is only when we see the two together that we will have a proper concern.
I may have got this wrong, but the only person who can tell us is the Minister because he is the only one who really understands what is going on in the Bill. Am I not right in saying—I am going to say I am right; he will say no, I am not, but I am, aren’t I?—that we will get to Clauses 208 and 209, or the clauses that used to be 208 and 209, one of which deals with harms from content and the other deals with functionality? We may need to look at the way in which those are framed in order to come back and understand better how these lie and how they interact with that. I may have got the numbers wrong—the Minister is looking a bit puzzled, so I probably have—but the sense is that this will probably not come up until day 4. While I do not want to hold back the Bill, we may need to look at some of the issues that are hidden in the interstices of this set of amendments in order to make sure that the totality is better for those who have to use it.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has been a useful debate. As the noble Baroness, Lady Kidron, says, because I spoke first to move the government amendments, in effect I got my response in first to her Amendment 174, the only non-government amendment in the group. That is useful because it allows us to have a deeper debate on it.
The noble Baroness asked about the way that organisations such as the British Board of Film Classification already make assessments of sexualised content. However, the Bill’s requirement on service providers and the process that the BBFC takes to classify content are not really comparable. Services will have far less time and much more content to consider them the BBFC does, so will not be able to take the same approach. The BBFC is able to take an extended time to consider maybe just one scene, one image or one conversation, and therefore can apply nuance to its assessments. That is not possible to do at the scale at which services will have to apply the child safety duties in the Bill. We therefore think there is a real risk that they would excessively apply those duties and adversely affect children’s rights online.
I know the noble Baroness and other noble Lords are rightly concerned with protecting rights to free expression and access to information online for children and for adults. It is important that we strike the right balance, which is what we have tried to do with the government amendments in this group.
Baroness Kidron (CB)
To be clear, the point that I made about the BBFC was not to suggest a similar arrangement but to challenge the idea that we cannot categorise material of a sexualised nature. Building on the point made by the noble Lord, Lord Allan, perhaps we could think about it in terms of the amber light rather than the red light—in other words, something to think about.
Lord Parkinson of Whitley Bay (Con)
I certainly will think about it, but the difficulty is the scale of the material and the speed with which we want these assessments to be made and that light to be lit, in order to make sure that people are properly protected.
My noble friend Lord Moylan asked about differing international terminology. In order for companies to operate in the United Kingdom they must have an understanding of the United Kingdom, including the English-language terms used in our legislation. He made a point about the Equality Act 2010. While it uses the same language, it does not extend the Equality Act to this part of the Bill. In particular, it does not create a new offence.
The noble Baroness, Lady Fox, also mentioned the Equality Act when she asked about the phraseology relating to gender reassignment. We included this wording to ensure that the language used in the Bill matches Section 7(1) of the Equality Act 2010 and that gender reassignment has the same meaning in the Bill as it does in that legislation. As has been said by other noble Lords—
Baroness Fox of Buckley (Non-Afl)
I clarify that what I said was aimed at protecting children. Somebody corrected me and asked, “Do you know that this says ‘abusive’?”—of course I do. What I suggested was that this is an area that is very contentious when we talk about introducing it to children. I am thinking about safeguarding children in this instance, not just copying and pasting a bit of an Act.
Lord Moylan (Con)
I take this opportunity to ask my noble friend the Minister a question; I want some clarity about this. Would an abusive comment about a particular religion—let us say a religion that practised cannibalism or a historical religion that sacrificed babies, as we know was the norm in Carthage—count as “priority harmful content”? I appreciate that we are mapping the language of the Equality Act, but are we creating a new offence of blasphemy in this Bill?
Lord Parkinson of Whitley Bay (Con)
As was pointed out by others in the debate, the key provision in Amendment 172 is subsection (2) of the proposed new clause, which relates to:
“Content which is abusive and which targets any of the following characteristics”.
It must both be abusive and target the listed characteristics. It does not preclude legitimate debate about those things, but if it were abusive on the basis of those characteristics—rather akin to the debate we had in the previous group and the points raised by the noble Baroness, Lady Kennedy of The Shaws, about people making oblique threats, rather than targeting a particular person, by saying, “People of your characteristic should be abused in the following way”—it would be captured.
Baroness Fox of Buckley (Non-Afl)
I will keep this short, because I know that everyone wants to get on. It would be said that it is abusive to misgender someone; in the context of what is going on in sixth forms and schools, I suggest that this is a problem. It has been suggested that showing pictures of the Prophet Muhammad in an RE lesson—these are real-life events that happen offline—is abusive. I am suggesting that it is not as simple as saying the word “abusive” a lot. In this area, there is a highly contentious and politicised arena that I want to end, but I think that this will exacerbate, not help, it.
Lord Moylan (Con)
My noble friend seemed to confirm what I said. If I wish to be abusive—in fact, I do wish to be abusive—about the Carthaginian religious practice of sacrificing babies to Moloch, and I were to do that in a way that came to the attention of children, would I be caught as having created “priority harmful content”? My noble friend appears to be saying yes.
Lord Parkinson of Whitley Bay (Con)
Does my noble friend wish to do that and direct it at children?
Lord Moylan (Con)
With respect, it does not say “directed at children”. Of course, I am safe in expressing that abuse in this forum, but if I were to do it, it came to the attention of children and it were abusive—because I do wish to be abusive about that practice—would I have created “priority harmful content”, about which action would have to be taken?
Baroness Harding of Winscombe (Con)
May I attempt to assist the Minister? This is the “amber” point described by the noble Lord, Lord Allan: “priority content” is not the same as “primary priority content”. Priority content is our amber light. Even the most erudite and scholarly description of baby eating is not appropriate for five year-olds. We do not let it go into “Bod” or any of the other of the programmes we all grew up on. This is about an amber warning: that user-to-user services must have processes that enable them to assess the risk of priority content and primary priority content. It is not black and white, as my noble friend is suggesting; it is genuinely amber.
Lord Parkinson of Whitley Bay (Con)
My Lords, we may be slipping back into a Committee-style conversation. My noble friend Lord Moylan rightly says that this is the first chance we have had to examine this provision, which is a concession wrung out of the Government in Committee. As the noble Lord, Lord Stevenson, says, sometimes that is the price your Lordships’ House pays for winning these concessions, but it is an important point to scrutinise in the way that my noble friend Lord Moylan and the noble Baroness, Lady Fox, have done.
I will try to reassure my noble friend and the noble Baroness. This relates to the definition of a characteristic with which we began our debates today. To be a characteristic it has to be possessed by a person; therefore, the content that is abusive and targets any of the characteristics has to be harmful to an individual to meet the definition of harm. Further, it has to be material that would come to the attention of children in the way that the noble Baronesses who kindly leapt to my defence and added some clarity have set out. So my noble friend would be able to continue to criticise the polytheistic religions of the past and their tendencies to his heart’s content, but there would be protections in place if what he was saying was causing harm to an individual—targeting them on the basis of their race, religion or any of those other characteristics—if that person was a child. That is what noble Lords wanted in Committee, and that is what the Government have brought forward.
My noble friend and others asked why mis- and disinformation were not named as their own category of priority harmful content to children. Countering mis- and disinformation where it intersects with the named categories of primary priority or priority harmful content, rather than as its own issue, will ensure that children are protected from the mis- and disinformation narratives that present the greatest risk of harm to them. We recognise that mis- and disinformation is a broad and cross-cutting issue, and we therefore think the most appropriate response is to address directly the most prevalent and concerning harms associated with it; for example, dangerous challenges and hoax health advice for children to self-administer harmful substances. I assure noble Lords that any further harmful mis- and disinformation content will be captured as non-designated content where it presents a material risk of significant harm to an appreciable number of children.
In addition, the expert advisory committee on mis- and disinformation, established by Ofcom under the Bill, will have a wide remit in advising on the challenges of mis- and disinformation and how best to tackle them, including how they relate to children. Noble Lords may also have seen that the Government have recently tabled amendments to update Ofcom’s statutory media literacy duty. Ofcom will now be required to prioritise users’ awareness of and resilience to misinformation and disinformation online. This will include children and their awareness of and resilience to mis- and disinformation.
My noble friend Lady Harding of Winscombe talked about commercial harms. Harms exacerbated by the design and operation of a platform—that is, their commercial models—are covered in the Bill already through the risk assessment and safety duties. Financial harm, as used in government Amendment 237, is dealt with by a separate legal framework, including the Consumer Protection from Unfair Trading Regulations. This exemption ensures that there is no regulatory overlap.
The noble Lord, Lord Russell of Liverpool, elaborated on remarks made earlier by the noble Lord, Lord Stevenson of Balmacara, about their meeting looking at the incel movement, if it can be called that. I assure the noble Lord and others that Ofcom has a review and report duty and will be required to stay on top of changes in the online harms landscape and report to government on whether it recommends changes to the designated categories of content because of the emerging risks that it sees.
The noble Baroness, Lady Kidron, anticipated the debate we will have on Monday about functionalities and content. I am grateful to her for putting her name to so many of the amendments that we have brought forward. We will continue the discussions that we have been having on this point ahead of the debate on Monday. I do not want to anticipate that now, but I undertake to carry on those discussions.
In closing, I reiterate what I know is the shared objective across your Lordships’ House—to protect children from harmful content and activity. That runs through all the government amendments in this group, which cover the main categories of harmful content and activity that, sadly, too many children encounter online every day. Putting them in primary legislation enables children to be swiftly protected from encountering them. I therefore hope that noble Lords will be heartened by the amendments that we have brought forward in response to the discussion we had in Committee.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 6th July 2023
(10 months, 2 weeks ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-II Second marshalled list for Report - (6 Jul 2023)
“Introduction
(1) This Act provides for a new regulatory framework which has the general purpose of making the use of internet services regulated by this Act safer for individuals in the United Kingdom.(2) To achieve that purpose, this Act (among other things)—(a) imposes duties which, in broad terms, require providers of services regulated by this Act to identify, mitigate and manage the risks of harm (including risks which particularly affect individuals with a certain characteristic) from—(i) illegal content and activity, and(ii) content and activity that is harmful to children, and(b) confers new functions and powers on the regulator, OFCOM.(3) Duties imposed on providers by this Act seek to secure (among other things) that services regulated by this Act are—(a) safe by design, and(b) designed and operated in such a way that—(i) a higher standard of protection is provided for children than for adults,(ii) users’ rights to freedom of expression and privacy are protected, and(iii) transparency and accountability are provided in relation to those services.”Member’s explanatory statement
This amendment provides for a new introductory Clause.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, I am pleased that we are on Report, and I thank all noble Lords who took part in Committee and those with whom I have had the pleasure of discussing issues arising since then, particularly for their constructive and collaborative nature, which we have seen throughout the passage of Bill.
In Committee, I heard the strength of feeling and the desire for an introductory clause. It was felt that this would help make the Bill less complex to navigate and make it less easy for providers to use this complexity to try to evade their duties under it. I have listened closely to these concerns and thank the noble Lord, Lord Stevenson of Balmacara, the noble Baroness, Lady Merron, and others for their work on this proposal. I am particularly grateful for their collaborative approach to ensuring the new clause has the desired effect without causing legal uncertainty. In that spirit, I am pleased to introduce government Amendment 1. I am grateful too to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, who have signed their names to it. That is a very good start to our amendments here on Report.
Amendment 1 inserts an introductory clause at the start of the Bill, providing an overarching statement about the main objectives of the new regulatory framework. The proposed new clause describes the main broad objectives of the duties that the Bill imposes on providers of regulated services and that the Bill confers new functions and powers on Ofcom.
The clause makes clear that regulated services must identify, mitigate and manage risks that particularly affect people with a certain characteristic. This recognises that people with certain characteristics, or more than one such characteristic, are disproportionately affected by online harms and that providers must account for and protect them from this. The noble Baroness, Lady Merron, raised the example of Jewish women, as did the noble Baroness, Lady Anderson of Stoke-on-Trent. Sadly, they have first-hand experience of the extra levels of abuse and harm that some groups of people can face when they have more than one protected characteristic. It could just as easily be disabled women or queer people of colour. The noble Baroness, Lady Merron, has tabled several amendments highlighting this problem, which I will address further in response to the contribution I know she will make to this debate.
Subsection 3 of the proposed new clause outlines the main outcomes that the duties in the Bill seek to secure. It is a fundamental principle of the legislation that the design of services can contribute to the risk of users experiencing harm online. I thank the noble Lord, Lord Russell of Liverpool, for continuing to raise this issue. I am pleased to confirm that this amendment will state clearly that a main outcome of the legislation is that services must be safe by design. For example, providers must choose and design their functionalities so as to limit the risk of harm to users. I know this is an issue to which we will return later on Report, but I hope this provides reassurance about the Government’s intent and the effect of the Bill’s framework.
Services must also be designed and operated in a way which ensures that a higher standard of protection is provided for children than for adults, that users’ rights to freedom of expression and privacy are protected and that transparency and accountability are enhanced. It should be noted that we have worked to ensure that this clause provides clarity to those affected by the Bill without adversely affecting the interpretation or effect of the substantive provisions of the rest of the Bill. As we debated in Committee, this is of the utmost importance, to ensure that this clause does not create legal uncertainty or risk with the interpretation of the rest of the Bill’s provisions.
I hope that your Lordships will welcome this amendment and I beg to move.
Amendment 2 (to Amendment 1)
Lord Clement-Jones (LD)
My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.
I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.
I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has indeed set us on a good course, and I am grateful to noble Lords for their questions and contributions. I apologise to my noble friend Lord Moylan, with whom I had the opportunity to discuss a number of issues relating to freedom of expression on Monday. We had tabled this amendment, and I apologise if I had not flagged it and sought his views on it explicitly, though I was grateful to him and the noble Baroness, Lady Fox of Buckley, for their time in discussing the issues of freedom of expression more broadly.
I am grateful to my noble friend Lady Harding and to the noble Baroness, Lady Kidron, for their tireless work over many months on this Bill and for highlighting the importance of “content” and “activity”. Both terms have been in the Bill since its introduction, for instance in Clauses 5(2) and (3), but my noble friend Lady Harding is right to highlight it in the way that she did. The noble Baroness, Lady Kidron, asked about the provisions on safety by design. The statement in the new clause reflects the requirements throughout the Bill to address content and activity and ensure that services are safe by design.
On the amendments tabled by the noble Baroness, Lady Merron, which draw further attention to people who have multiple characteristics and suffer disproportionately because of it, let me start by saying again that the Government recognise that this is, sadly, the experience for many people online, and that people with multiple characteristics are often at increased risk of harm. The Bill already accounts for this, and the current drafting captures people with multiple characteristics because of Section 6 of the Interpretation Act 1978. As she says, this was a new one to me—other noble Lords may be more familiar with this legacy of the Callaghan Government—but it does mean that, when interpreting statute, words in the singular include the plural and words in the plural include the singular.
If we simply amended the references that the noble Baroness highlights in her amendments, we would risk some uncertainty about what those provisions cover. I sympathise with the concern which lies behind her amendments, and I am grateful for her time in discussing this matter in detail. I agree that it would be helpful to make it clearer that the Bill is designed to protect people with multiple characteristics. This clause is being inserted to give clarity, so we should seek to do that throughout.
We have therefore agreed to add a provision in Clause 211—the Bill’s interpretation clause—to make clear that all the various references throughout the Bill to people with a certain characteristic include people with a combination of characteristics. This amendment was tabled yesterday and will be moved at a later day on Report, so your Lordships’ House will have an opportunity to look at and vote on that. I hope that that provision clarifies the intention of the wording used in the Bill and puts the issue beyond doubt. I hope that the noble Baroness will be satisfied, and I am grateful to all noble Lords for their support on this first amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for his response. It is a very practical response and certainly one that I accept as a way forward. I am sure that the whole House is glad to hear of his acknowledgement of the true impact that having more than one protected characteristic can have, and of his commitment to wanting the Bill to do the job it is there to do. With that, I am pleased to withdraw the amendment in my name.
Lord Stevenson of Balmacara (Lab)
My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.
In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.
The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.
Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.
I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.
That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.
Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.
The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.
If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.
As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.
Lord Parkinson of Whitley Bay (Con)
I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.
I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.
Lord Allan of Hallam (LD)
I appreciate the Minister’s response. Could he also respond to my suggestion that it would be helpful for some of the people working on the front line to meet officials to go through their concerns in more detail?
Lord Parkinson of Whitley Bay (Con)
I am very happy to make that commitment. It would be useful to have their continued engagement, as we have had throughout the drafting of the Bill.
The noble Baroness, Lady Burt of Solihull, has tabled a number of amendments related to the new offence of cyberflashing. I will start with her Amendment 6. We believe that this amendment reduces the threshold of the new offence to too great an extent. It could, for example, criminalise a person sending a picture of naked performance art to a group of people, where one person might be alarmed by the image but the sender sends it anyway because he or she believes that it would be well received. That may be incorrect, unwise and insensitive, but we do not think it should carry the risk of being convicted of a serious sexual offence.
Crucially, the noble Baroness’s amendment requires that the harm against the victim be proven in court. Not only does this add an extra step for the prosecution to prove in order for the perpetrator to be convicted, it creates an undue burden on the victim, who would be cross-examined about his or her—usually her—experience of harm. For example, she might have to explain why she felt humiliated; this in itself could be retraumatising and humiliating for the victim. By contrast, Clause 170 as drafted means that the prosecution has only to prove and focus on the perpetrator’s intent.
Baroness Burt of Solihull (LD)
I am very grateful for the Minister’s comments. This is the crux of my confusion: I am not entirely sure why it is necessary for the victim to appear in court. In intimate image abuse, is it not the case that the victim does not have to make an appearance in court? What is the difference between intimate image abuse and cyberflashing abuse? I do not get why one attracts a physical court appearance and the other does not. They seem to be different sides of the same coin to me.
Lord Parkinson of Whitley Bay (Con)
If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.
Lord Clement-Jones (LD)
My Lords, we are coming to this in the next group, but that is a consent-based offence, is it not?
Lord Parkinson of Whitley Bay (Con)
It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.
Lord Clement-Jones (LD)
I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?
Lord Parkinson of Whitley Bay (Con)
Perhaps I can respond to the point about intimate abuse when we come on to the next group—that might be helpful.
Lord Clement-Jones (LD)
It might be helpful—except for the refusal to accept my noble friend’s amendment.
Lord Parkinson of Whitley Bay (Con)
If the defendant said that they had sent an image because they thought that consent had been obtained, the person whose consent was under question would find themselves cross-examined on it in a way that we do not want to see. We do not want that to be a barrier to people reporting this, in the same way that it is not for people who report flashing on the streets.
Lord Garnier (Con)
My Lords, I do not want to interfere in private grief, but the courts have powers to protect witnesses, particularly in cases where they are vulnerable or will suffer acute distress, by placing screens in the way and controlling the sorts of cross-examinations that go on. I accept the concern expressed by the noble Baroness, Lady Burt, but I think that my noble friend the Minister will be advised that there are protective measures in place already for the courts to look after people of the sort that she is worried about.
Lord Parkinson of Whitley Bay (Con)
There are indeed but, as my noble and learned friend’s interjection makes clear, those are still means for people to be cross-examined and give their account in court, even with those mitigations and protections. That is really the crux of the issue here.
We have already debated the risk that the approach that the noble Baroness sets out in her Amendments 5C and 7A criminalises sending messages, and people whom we would not deem to be criminal. I want to reassure her and your Lordships’ House that the intent-based offence, as drafted at Clause 170, provides the comprehensive protections for victims that we all want to see, including situations where the perpetrator claims it was “just for a joke”. The offence is committed if a perpetrator intended to cause humiliation, and that captures many supposed “joke” motives, as the perverted form of humour in this instance is often derived from the victim’s humiliation, alarm or distress.
Indeed, it was following consultation with victims’ groups and others that the Law Commission added humiliation as a form of intent to the offence to address those very concerns. Any assertions made by a defendant in this regard would not be taken at face value but would be considered and tested by the police and courts in the usual way, alongside the evidence. The Crown Prosecution Service and others are practised in prosecuting intent, and juries and magistrates may infer intention from the context of the behaviour and its foreseeable consequences.
The addition of defences, as the noble Baroness suggests in her Amendment 7A, is unfortunately still not sufficient to ensure that we are not overcriminalising here. Even with the proposed defences, sending a picture of genitalia without consent for medical reasons would still risk being considered a criminal Act and potentially compel a medical professional to justify that he or she has an adequate defence.
Lord Parkinson of Whitley Bay (Con)
It is about the burden on the medical professionals and the question of whether it comes to court when the police investigate it and the prosecution make out. We do not want to see that sort of behaviour being overly criminalised or the risk of prosecution hanging over people for reasons where it is not needed. We want to make sure that the offence is focused on the behaviour that we all want to tackle here.
The Law Commission has looked at this extensively—and I am glad the noble Baroness has had the opportunity to speak to it directly—and brought forward these proposals, which mirror the offence of flashing that already exists in criminal law. We think that is the right way of doing it and not risking the overcriminalisation of those whom noble Lords would not want to capture.
Contrary to some concerns that have been expressed, the onus is never on the victim to marshal evidence or prove the intent of the perpetrator. It is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we and the Law Commission consulted the police and the CPS extensively in bringing the offence forward.
By contrast, as I say, the consent-based approach is more likely to put onerous pressure on the victim by focusing the case on his or her behaviour and sexual history instead of the behaviour of the perpetrator. I know and can tell from the interjections that noble Lords still have some concerns or questions about this offence as drafted. I reassure them, as my noble friend Lady Morgan of Cotes urged, that we will be actively monitoring and reviewing the implementation of this offence, along with the Crown Prosecution Service and the police, to ensure that it is working effectively and bringing perpetrators to justice.
The noble Baroness, Lady Burt, also raised the importance of public engagement and education in this regard. As she may know, the Government have a long-term campaign to tackle violence against women and girls. The Enough campaign covers a range of online and offline forms of abuse, including cyberflashing. The campaign includes engaging with the public to deepen understanding of this offence. It focuses on educating young people about healthy relationships, on targeting perpetrators and on ensuring that victims of violence against women and girls can access support. Future phases of the Enough campaign will continue to highlight the abusive nature and unacceptability of these behaviours, and methods for people safely to challenge them.
In addition, in our tackling violence against women and girls strategy the Government have committed to invest £3 million better to understand what works to prevent violence against women and girls, to invest in high-quality, evidence-informed prevention projects, including in schools, aiming to educate and inform children and young people about violence against women and girls, healthy relationships and the consequences of abuse.
With that commitment to keep this under review—to ensure that it is working in the way that the Law Commission and the Government hope and expect it to—and with that explanation of the way we will be encouraging the public to know about the protections that are there through the law and more broadly, I hope noble Lords will be reassured and will not press their amendments.
Baroness Kennedy of The Shaws (Lab)
Before the Minister sits down, I express my gratitude that he has indicated that my amendment would have some serious impact. I thank the noble Lord, Lord Clement-Jones, for saying that there should be some learning among men in the House and in wider society about what puts real fear in the hearts of women and how it affects how women conduct their lives. I thank those who said that some change is necessary.
We have to remember that this clause covers a threatening communications offence. I know that something is going to be said about the particular vulnerability of women and girls—the noble Baroness, Lady Morgan, mentioned it, and I am grateful for that—but this offence is not specific to one gender. It is a general offence that someone commits if a message they send conveys a threat of death or serious harm.
I reassure the noble Baroness, Lady Fox, that we are not talking about a slight—saying to a woman that she is ugly or something. This is not about insults but about serious threats. The business about it being reckless as to whether or not it is going to be carried out is vital. Clause 164(1)(c)(i) says an offence is committed if it is intended that an individual encountering the message would fear that the threat would be carried out. I would like to see added the words, “whether or not by the person sending the message”.
Just think of this in the Irish context of years gone by. If someone sent a message saying, “You should be kneecapped”, it is very clear that we would be talking about something that would put someone in terror and fear. It is a serious fear, so I am glad that this is supported by the Minister, and I hope we will progress it to the next stage.
Lord Harlech (Con)
My Lords, without wishing to disrupt the very good nature of this debate, I remind the House that the Companion advises against speaking more than once on Report, except for specific questions or points of elucidation.
Lord Parkinson of Whitley Bay (Con)
None the less, I am grateful to the noble Baroness for her clarification and expansion of this point. I am glad that she is satisfied with the approach we have set out.
Baroness Kennedy of The Shaws (Lab)
It is not specific to women; it is general.
Lord Parkinson of Whitley Bay (Con)
The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.
Lord Garnier (Con)
My Lords, I will be incredibly brief because everything that needs to be said has been said at least twice. I am grateful to those who have taken the trouble to listen to what I had to say, and I am grateful to the Minister for his response. I beg leave to withdraw my amendment.
Member’s explanatory statement
This amendment provides that “photograph” and “film” in the new offence of sending a photograph or film of genitals (and, by extension the new offences of sharing an intimate photograph or film) includes an image which has been altered and which appears to be a photograph or film.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful for the opportunity to continue some of the themes we touched on in the last group and the debate we have had throughout the passage of the Bill on the importance of tackling intimate image abuse. I shall introduce the government amendments in this group that will make a real difference to victims of this abhorrent behaviour.
Before starting, I take the opportunity again to thank the Law Commission for the work it has done in its review of the criminal law relating to the non-consensual taking, making and sharing of intimate images. I also thank my right honourable friend Dame Maria Miller, who has long campaigned for and championed the victims of online abuse. Her sterling efforts have contributed greatly to the Government’s approach and to the formulation of policy in this sensitive area, as well as to the reform of criminal law.
As we announced last November, we intend to bring forward a more expansive package of measures based on the Law Commission’s recommendations as soon as parliamentary time allows, but the Government agree with the need to take swift action. That is why we are bringing forward these amendments now, to deliver on the recommendations which fall within the scope of the Bill, thereby ensuring justice for victims sooner.
These amendments repeal the offence of disclosing private sexual photographs and films with intent to cause distress and replace it with four new sexual offences in the Sexual Offences Act 2003. The first is a base offence of sharing an intimate photograph or film without consent or reasonable belief in consent. This recognises that the sharing of such images, whatever the intent of the perpetrator, should be considered a criminal violation of the victim’s bodily autonomy.
The amendments create two more serious offences of sharing an intimate photograph or film without consent with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification. Offenders committing the latter offence may also be subject to notification requirements, commonly referred to as being on the sex-offenders register. The amendments create an offence of threatening to share an intimate image. These new sharing offences are based on the Law Commission’s recommended approach to the idea of intimate photographs or films to include images which show or appear to show a person nude or partially nude, or which depict sexual or toileting activity. This will protect more victims than the current Section 33 offence, which protects only images of a private and sexual nature.
Finally, these clauses will, for the first time, make it a criminal offence to share a manufactured or so-called deepfake image of another person without his or her consent. This form of intimate image abuse is becoming more prevalent, and we want to send a clear message that it will not be tolerated.
By virtue of placing these offences in the Sexual Offences Act 2003, we are extending to these offences also the current special measures, so that victims can benefit from them in court, and from anonymity provisions, which are so important when something so intimate has been shared without consent. This is only the first stage in our reform of the law in this area. We are committed to introducing additional changes, giving effect to further recommendations of the Law Commission’s report which are beyond the scope of the Bill, when parliamentary time allows.
I hope that noble Lords from across your Lordships’ House will agree that these amendments represent an important step forward in tackling intimate image abuse and protecting victims. I commend them to the House, and I beg to move.
Lord Allan of Hallam (LD)
My Lords, I welcome these new offences. From my professional experience, I know that what came to be known as “sextortion” created some of the most distressing cases you could experience, where an individual would obtain intimate images, often by deception, and then use them to make threats. This is where a social network is particularly challenging; it enables people to access a network of all the family and friends of an individual whose photo they now hold and to threaten to distribute it to their nearest and dearest. This affects men and women; many of the victims were men who were honey-potted into sharing intimate images and in the worst cases it led to suicide. It was not uncommon that people would feel that there was no way out; the threat was so severe that they would take their own lives. It is extremely welcome that we are doing something about it, and making it more obvious to anyone who is thinking about committing this kind of offence that they run the risk of criminal prosecution.
I have a few specific questions. The first is on the definitions in proposed new Section 66D, inserted by government Amendment 8, where the Government are trying to define what “intimate” or “nudity” represents. This takes me back again to my professional experience of going through slide decks and trying to decide what was on the right or wrong side of a nudity policy line. I will not go into the detail of everything it said, not least because I keep noticing younger people in the audience here, but I will leave you with the thought that you ended up looking at images that involved typically fishnets, in the case of women, and socks, in the case of men—I will leave the rest to your Lordships’ imaginations to determine at what point someone has gone from being clothed to nude. I can see in this amendment that the courts are going to have to deal with the same issues.
The serious point is that, where there is alignment between platform policies, definitions and what we do not want to be distributed, that is extremely helpful, because it then means that if someone does try to put an intimate image out across one of the major platforms, the platform does not have to ask whether there was consent. They can just say that it is in breach of their policy and take it down. It actually has quite a beneficial effect on slowing transmission.
The other point that comes out of that is that some of these questions of intimacy are quite culturally subjective. In some cultures, even a swimsuit photo could be used to cause humiliation and distress. I know this is extremely difficult; we do not want to be overly censorious but, at the same time, we do not want to leave people exposed to threats, and if you come from a culture where a swimsuit photo would be a threat, the definitions may not work for you. So I hope that, as we go through this, there will be a continued dialogue between experts in the platforms who have to deal with these questions and people working on the criminal offence side. To the extent that we can achieve it, there should be alignment and the message should go out that if you are thinking of distributing an image like this, you run the risk of being censored by the platforms but also of running into a criminal prosecution. That is on the mechanics of making it work.
Baroness Merron (Lab)
My Lords, I am grateful to the Minister for introducing this suite of government amendments. From these Benches we welcome them. From the nature of the debate, this seems to be very much a work in progress. I wish the Minister well as he and the Justice Minister continue to pick their way through a route to get us to where we need to be. I too thank the Law Commission, Dame Maria Miller MP and so many other campaigners who, as noble Lords have said, have got us to this important point.
However, as I am sure is recognised, with the best of intentions, the government amendments still leave some areas that are as yet unresolved, particularly on sharing images with others: matters such as revenge porn and sending unwanted pictures on dating apps. There are areas still to be explored. The Minister and the Justice Minister said in a letter that, when parliamentary time allows, there will be a broader package of offences being brought forward. I realise that the Minister cannot be precise, but I would appreciate some sense of urgency or otherwise in terms of parliamentary time and when that might be.
We are only just starting to understand the impact of, for example, artificial intelligence, which we are about to come on to. That will be relevant in this regard too. We all understand that this is a bit of a moveable feast. The test will be whether this works. Can the Minister say a bit more about how this suite of measures will be kept under review and, in so doing, will the Government be looking at keeping an eye on the number of charges that are brought? How will this be reported to the House?
In line with this, will there be some consideration of the points that were raised in the previous group? I refer particularly to the issues raised in the amendments tabled by the noble Baroness, Lady Burt, especially where there may not be the intent, or the means, to obtain sexual gratification. They might be about “having a bit of a laugh”, as the noble Baroness said—which might be funny to some but really not funny to others.
In welcoming this, I hope that the Minister will indicate that this is just one step along the way and when we will see further steps.
Lord Parkinson of Whitley Bay (Con)
I am happy to respond clearly to that. As my right honourable friend Edward Argar MP and I said in our letter, this is just the first step towards implementing the changes which the Law Commission has recommended and which we agree are needed. We will implement a broader package of offences, covering, for instance, the taking of intimate images without consent, which were also part of the Law Commission’s report. The parameters of this Bill limit what we can do now. As I said in my opening remarks, we want to bring those forward now so that we can provide protections for victims in all the ways that the Bill gives us scope to do. We will bring forward further provisions when parliamentary time allows. The noble Baroness will understand that I cannot pre-empt when that is, although if we make good progress on the Bill, parliamentary time may allow for it sooner.
The noble Baroness also asked about our review. We will certainly take into account the number of prosecutions and charges that are brought. That is always part of our consideration of criminal law, but I am happy to reassure her that this will be the case here. These are new offences, and we want to make sure that they are leading to prosecutions to deter people from doing it.
The noble Lord, Lord Allan of Hallam, asked whether images will include those shared on virtual reality platforms and in other novel ways. As he knows, the Bill is written in a technologically neutral way to try to be future-proof and capture those technologies which have not yet been invented. I mentioned deepfakes in my opening remarks, which we can envisage. An image will be included on whatever platform it is shared, if it appears to be a photograph or film—that is to say, if it is photo-real. I hope that reassures him.
Lord Clement-Jones (LD)
If the Minister has time, can he actually direct us to that, because it is important that we are clear that it really is captured?
Lord Parkinson of Whitley Bay (Con)
In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.
I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.
The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.
The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way
“which appears to be a photograph or film”.
That is where the point I make about photo-reality is captured.
The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.
Baroness Kidron (CB)
I believe I misspoke when I asked my question. I referred to under-18s. Of course, if they are under 18 then it is child sexual abuse. I meant someone under the age of 18 with an adult image. I put that there for the record.
Lord Parkinson of Whitley Bay (Con)
If the noble Baroness misspoke, I understood what she intended. I knew what she was getting at.
With that, I hope noble Lords will be content not to press their amendments and that they will support the government amendments.
“Sharing or threatening to share intimate photograph or film
In the Sexual Offences Act 2003, after section 66A (inserted by section 170), insert—“66B Sharing or threatening to share intimate photograph or film(1) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) B does not consent to the sharing of the photograph or film, and(c) A does not reasonably believe that B consents.(2) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the sharing of the photograph or film.(3) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state, (b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the sharing of the photograph or film, and(d) A does not reasonably believe that B consents.(4) A person (A) commits an offence if—(a) A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and(b) A does so—(i) with the intention that B or another person who knows B will fear that the threat will be carried out, or(ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.(5) Subsections (1) to (4) are subject to section 66C (exemptions).(6) For the purposes of subsections (1) to (3) and section 66C(3)(b)—(a) “consent” to the sharing of a photograph or film includes general consent covering the particular act of sharing as well as specific consent to the particular act of sharing, and(b) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.(7) Where a person is charged with an offence under subsection (4), it is not necessary for the prosecution to prove—(a) that the photograph or film mentioned in the threat exists, or(b) if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.(8) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for sharing the photograph or film.(9) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).(10) A person who commits an offence under subsection (2), (3) or (4) is liable—(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.(11) In subsection (9) “the maximum term for summary offences” means—(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;(b) if the offence is committed after that time, 51 weeks.(12) If on the trial of a person charged with an offence under subsection (2) or (3) a magistrates’ court or jury finds the person not guilty of the offence charged, the magistrates’ court or jury may find the person guilty of an offence under subsection (1).(13) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (12) convicted before it of an offence under subsection (1) as a magistrates’ court would have on convicting the person of the offence. 66C Sharing or threatening to share intimate photograph or film: exemptions(1) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),(b) B had no reasonable expectation of privacy from the photograph or film being taken, and(c) B was, or A reasonably believes that B was, in the intimate state voluntarily.(2) For the purposes of subsection (1)(b), whether a person had a reasonable expectation of privacy from a photograph or film being taken is to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken.(3) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film had, or A reasonably believes that the photograph or film had, been previously publicly shared, and(b) B had, or A reasonably believes that B had, consented to the previous sharing.(4) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1) if—(a) B is a person under 16,(b) B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film, and(c) the photograph or film is shared—(i) with a healthcare professional acting in that capacity, or(ii) otherwise in connection with the care or treatment of B by a healthcare professional.(5) A person who shares a photograph or film which shows, or appears to show, a child in an intimate state does not commit an offence under section 66B(1) if the photograph or film is of a kind ordinarily shared between family and friends.(6) A person who threatens to share a photograph or film which shows, or appears to show, another person in an intimate state does not commit an offence under section 66B(4) if, by reason of this section, the person would not commit an offence under section 66B(1), (2) or (3) by sharing the photograph or film in the circumstances conveyed by the threat.66D Sharing or threatening to share intimate photograph or film: interpretation(1) This section applies for the purposes of sections 66B and 66C.(2) A person “shares” something if the person, by any means, gives or shows it to another person or makes it available to another person.(3) But a provider of an internet service by means of which a photograph or film is shared is not to be regarded as a person who shares it.(4) “Photograph” and “film” have the same meaning as in section 66A (see subsections (3) to (5) of that section). (5) Except where a photograph or film falls within subsection (8), a photograph or film “shows, or appears to show, another person in an intimate state” if it shows or appears to show—(a) the person participating or engaging in an act which a reasonable person would consider to be a sexual act,(b) the person doing a thing which a reasonable person would consider to be sexual,(c) all or part of the person’s exposed genitals, buttocks or breasts,(d) the person in an act of urination or defecation, or(e) the person carrying out an act of personal care associated with the person’s urination, defecation or genital or anal discharge.(6) For the purposes of subsection (5)(c) the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes—(a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing,(b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear, and(c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be).(7) In subsection (6)(c) “obscured” means obscured by any means, other than by clothing that a person is wearing, including, in particular, by an object, by part of a person’s body or by digital alteration.(8) A photograph or film falls within this subsection if (so far as it shows or appears to show a person in an intimate state) it shows or appears to show something, other than breastfeeding, that is of a kind ordinarily seen in public.(9) For the purposes of subsection (8) “breastfeeding” includes the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding.””Member’s explanatory statement
This amendment provides for new offences of sharing or threatening to share intimate photographs or films.
“Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) are repealed.”Member’s explanatory statement
This amendment is consequential on the new Clause creating offences of sharing or threatening to share intimate photographs or films.
Member’s explanatory statement
This amendment provides that Part 3 of Schedule 14 also makes consequential amendments on the new Clause creating offences of sharing and threatening to share intimate photographs or films.
Member’s explanatory statement
This is a technical amendment ensuring that the amendments made under Schedule 14 to Schedule 1 to the Children and Young Persons Act 1933 are inserted in the correct place in that Act.
Online Safety Bill
Lord Parkinson of Whitley Bay Excerpts(10 months, 2 weeks ago)
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Lord Parkinson of Whitley Bay
That the amendments for the Report stage be marshalled and considered in the following order:
Clause 1, Clauses 162 to 172, Schedule 14, Clauses 2 and 3, Schedules 1 and 2, Clauses 4 to 31, Schedule 3, Clauses 32 to 37, Schedule 4, Clauses 38 to 53, Schedules 5 to 7, Clauses 54 to 68, Schedule 8, Clauses 69 to 71, Schedule 9, Clauses 72 and 73, Clauses 150 to 161, Clauses 173 to 177, Schedule 15, Clauses 178 to 189, Schedule 16, Clauses 190 and 191, Schedule 17, Clauses 192 to 201, Clauses 74 to 80, Schedule 10, Clauses 81 to 85, Schedule 11, Clauses 86 to 97, Schedule 12, Clauses 98 to 132, Schedule 13, Clauses 133 to 149, Clauses 202 to 216, Title.
Online Safety Bill
Lord Parkinson of Whitley Bay ExcerptsThursday 22nd June 2023
(11 months ago)
Lords ChamberRead Full debate Online Safety Act 2023 View all Online Safety Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 87(Rev)-X Tenth marshalled list for Committee - (20 Jun 2023)
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)
My Lords, the Government are supportive of improving data sharing and encouraging greater collaboration between companies and researchers, subject to the appropriate safeguards. However, the data that companies hold about users can, of course, be sensitive; as such, mandating access to data that are not publicly available would be a complex matter, as noble Lords noted in their contributions. The issue must be fully thought through to ensure that the risks have been considered appropriately. I am grateful for the consideration that the Committee has given this matter.
It is because of this complexity that we have given Ofcom the task of undertaking a report on researchers’ access to information. Ofcom will conduct an in-depth assessment of how researchers can currently access data. To the point raised by the noble Lord, Lord Knight, and my noble friend Lord Bethell, let me provide reassurance that Ofcom will assess the impact of platforms’ policies that restrict access to data in this report, including where companies charge for such access. The report will also cover the challenges that constrain access to data and how such challenges might be addressed. These insights will provide an evidence base for any guidance that Ofcom may issue to help improve data access for researchers in a safe and secure way.
Amendments 230 and 231 seek to require Ofcom to publish a report into researchers’ access to data more rapidly than within the currently proposed two years. I share noble Lords’ desire to develop the evidence base on this issue swiftly, but care must be taken to balance Ofcom’s timelines to ensure that it can deliver its key priorities in establishing the core parts of the regulatory framework that the Bill will bring in; for example, the illegal content and child safety duties. Implementing these duties must be the immediate priority for Ofcom to ensure that the Bill meets its objective of protecting people from harm. It is crucial that we do not divert attention away from these areas and that we allow Ofcom to carry out this work as soon as is practicable.
Further to this, considering the complex matter of researchers’ access to data will involve consultation with interested parties, such as the Information Commissioner’s Office, the Centre for Data Ethics and Innovation, UK Research and Innovation, representatives of regulated services and others—including some of those parties mentioned by noble Lords today—as set out in Clause 146(3). This is an extremely important issue that we need to get right. Ofcom must be given adequate time to consult as it sees necessary and undertake the appropriate research.
Lord Knight of Weymouth (Lab)
Before the Minister succeeds in disappointing us, can he clarify something for us? Once Ofcom has published the report, it has the power to issue guidance. What requirement is there for platforms to abide by that guidance? We want there to be some teeth at the end of all this. There is a concern that a report will be issued, followed by some guidance, but that nothing much else will happen.
Lord Parkinson of Whitley Bay (Con)
It is guidance rather than direction, but it will be done openly and transparently. Users will be able to see the guidance which Ofcom has issued, to see whether companies have responded to it as they see fit and, through the rest of the framework of the Bill, be empowered to make their decisions about their experiences online. This being done openly and transparently, and informed by Ofcom’s research, will mean that everyone is better informed.
We are sympathetic to the amendment. It is complex, and this has been a useful debate—
Baroness Kidron (CB)
I wonder whether the Minister has an answer to the academic community, who now see their European colleagues getting ahead through being able to access data through other legislation in other parts of the world. Also, we have a lot of faith in Ofcom, but it seems a mistake to let it be the only arbiter of what needs to be seen.
Lord Parkinson of Whitley Bay (Con)
We are very aware that we are not the only jurisdiction looking at the important issues the Bill addresses. The Government and, I am sure, academic researchers will observe the implementation of the European Union’s Digital Services Act with interest, including the provisions about researchers’ access. We will carefully consider any implications of our own online safety regime. As noble Lords know, the Secretary of State will be required to undertake a review of the framework between two and five years after the Bill comes into force. We expect that to include an assessment of how the Bill’s existing transparency provisions facilitate researcher access.
Lord Allan of Hallam (LD)
I do not expect the Minister to have an answer to this today, but it will be useful to get this on the record as it is quite important. Can he let us know the Government’s thinking on the other piece of the equation? We are getting the platforms to disclose the data, and an important regulatory element is the research organisations that receive it. In the EU, that is being addressed with a code of conduct, which is a mechanism enabled by the general data protection regulation that has been approved by the European Data Protection Board and creates this legal framework. I am not aware of equivalent work having been done in the UK, but that is an essential element. We do not want to find that we have the teeth to persuade the companies to disclose the data, but not the other piece we need—probably overseen by the Information Commissioner’s Office rather than Ofcom—which is a mechanism for approving researchers to receive and then use the data.
Lord Parkinson of Whitley Bay (Con)
We are watching with interest what is happening in other jurisdictions. If I can furnish the Committee with any information in the area the noble Lord mentions, I will certainly follow up in writing.
Lord Clement-Jones (LD)
I have a question, in that case, in respect of the jurisdictions. Why should we have weaker powers for our regulator than others?
Lord Parkinson of Whitley Bay (Con)
I do not think that we do. We are doing things differently. Of course, Ofcom will be looking at all these matters in its report, and I am sure that Parliament will have an ongoing interest in them. As jurisdictions around the world continue to grapple with these issues, I am sure that your Lordships’ House and Parliament more broadly will want to take note of those developments.
Lord Clement-Jones (LD)
But surely, there is no backstop power. There is the review but there is no backstop which would come into effect on an Ofcom recommendation, is there?
Lord Parkinson of Whitley Bay (Con)
We will know once Ofcom has completed its research and examination of these complex issues; we would not want to pre-judge its conclusions.
Lord Parkinson of Whitley Bay (Con)
With that, if there are no further questions, I invite the noble Lord to withdraw his amendment.
Lord Knight of Weymouth (Lab)
My Lords, this was a short but important debate with some interesting exchanges at the end. The noble Baroness, Lady Harding, mentioned the rapidly changing environment generated by generative AI. That points to the need for wider ecosystem-level research on an independent basis than we fear we might get as things stand, and certainly wider than the skilled persons we are already legislating for. The noble Lord, Lord Bethell, referred to the access that advertisers already have to insight. It seems a shame that we run the risk, as the noble Baroness, Lady Kidron, pointed out, of researchers in other jurisdictions having more privileged access than researchers in this country, and therefore becoming dependent on those researchers and whistleblowers to give us that wider view. We could proceed with a report and guidance as set out in the Bill but add in some reserved powers in order to take action if the report suggests that Ofcom might need and want that. The Minister may want to reflect on that, having listened to the debate. On that basis, I am happy to beg leave to withdraw the amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, this has been a broad and mixed group of amendments. I will be moving the amendments in my name, which are part of it. These introduce the new offence of encouraging or assisting serious self-harm and make technical changes to the communications offences. If there can be a statement covering the group and the debate we have had, which I agree has been well informed and useful, it is that this Bill will modernise criminal law for communications online and offline. The new offences will criminalise the most damaging communications while protecting freedom of expression.
Amendments 264A, 266 and 267, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Buscombe, would expand the scope of the false communications offence to add identity theft and financial harm to third parties. I am very grateful to them for raising these issues, and in particular to my noble friend Lady Buscombe for raising the importance of financial harm from fake reviews. This will be addressed through the Digital Markets, Competition and Consumers Bill, which was recently introduced to Parliament. That Bill proposes new powers to address fake and misleading reviews. This will provide greater legal clarity to businesses and consumers. Where fake reviews are posted, it will allow the regulator to take action quickly. The noble Baroness is right to point out the specific scenarios about which she has concern. I hope she will look at that Bill and return to this issue in that context if she feels it does not address her points to her satisfaction.
Identity theft is dealt with by the Fraud Act 2006, which captures those using false identities for their own benefit. It also covers people selling or using stolen personal information, such as banking information and national insurance numbers. Adding identity theft to the communications offences here would duplicate existing law and expand the scope of the offences too broadly. Identity theft, as the noble Lord, Lord Clement-Jones, noted, is better covered by targeted offences rather than communications offences designed to protect victims from psychological and physical harm. The Fraud Act is more targeted and therefore more appropriate for tackling these issues. If we were to add identity theft to Clause 160, we would risk creating confusion for the courts when interpreting the law in these areas—so I hope the noble Lord will be inclined to side with clarity and simplicity.
Amendment 265, tabled by my noble friend Lord Moylan, gives me a second chance to consider his concerns about Clause 160. The Government believe that the clause is necessary and that the threshold of harm strikes the right balance, robustly protecting victims of false communications while maintaining people’s freedom of expression. Removing “psychological” harm from Clause 160 would make the offence too narrow and risk excluding communications that can have a lasting and serious effect on people’s mental well-being.
But psychological harm is only one aspect of Clause 160; all elements of the offence must be met. This includes a person sending a knowingly false message with an intention to cause non-trivial harm, and without reasonable excuse. It has also been tested extensively as part of the Law Commission’s report Modernising Communications Offences, when determining what the threshold of harm should be for this offence. It thus sets a high bar for prosecution, whereby a person cannot be prosecuted solely on the basis of a message causing psychological harm.
The noble Lord, Lord Allan, rightly recalled Section 127 of the Communications Act and the importance of probing issues such as this. I am glad he mentioned the Twitter joke trial—a good friend of mine acted as junior counsel in that case, so I remember it well. I shall spare the blushes of the noble Baroness, Lady Merron, in recalling who the Director of Public Prosecutions was at the time. But it is important that we look at these issues, and I am happy to speak further with my noble friend Lord Moylan and the noble Baroness, Lady Fox, about this and their broader concerns about freedom of expression between now and Report, if they would welcome that.
My noble friend Lord Moylan said that it would be unusual, or novel, to criminalise lying. The offence of fraud by false representation already makes it an offence dishonestly to make a false representation—to breach the ninth commandment—with the intention of making a gain or causing someone else a loss. So, as my noble and learned friend Lord Garnier pointed out, there is a precedent for lies with malicious and harmful intent being criminalised.
Amendments 267AA, 267AB and 268, tabled my noble friend Lady Buscombe and the noble Baroness, Lady Kennedy of The Shaws, take the opposite approach to those I have just discussed, as they significantly lower and expand the threshold of harm in the false and threatening communications offences. The first of these would specify that a threatening communications offence is committed even if someone encountering the message did not fear that the sender specifically would carry out the threat. I am grateful to the noble Baroness for her correspondence on this issue, informed by her work in Scotland. The test here is not whether a message makes a direct threat but whether it conveys a threat—which can certainly cover indirect or implied threats.
I reassure the noble Baroness and other noble Lords that Clause 162 already captures threats of “death or serious harm”, including rape and disfigurement, as well as messages that convey a threat of serious harm, including rape and death threats, or threats of serious injury amounting to grievous bodily harm. If a sender has the relevant intention or recklessness, the message will meet the required threshold. But I was grateful to see my right honourable friend Edward Argar watching our debates earlier, in his capacity as Justice Minister. I mentioned the matter to him and will ensure that his officials have the opportunity to speak to officials in Scotland to look at the work being done with regard to Scots law, and to follow the points that the noble Baroness, Lady Bennett, made about pictures—
Baroness Kennedy of The Shaws (Lab)
I am grateful to the Minister. I was not imagining that the formulations that I played with fulfilled all of the requirements. Of course, as a practising lawyer, I am anxious that we do not diminish standards. I thank the noble Baroness, Lady Fox, for raising concerns about freedom of speech, but this is not about telling people that they are unattractive or ugly, which is hurtful enough to many women and can have very deleterious effects on their self-confidence and willingness to be public figures. Actually, I put the bar reasonably high in describing the acts that I was talking about: threats that somebody would kill, rape, bugger or disfigure you, or do whatever to you. That was the shocking thing: the evidence showed that it was often at that high level. It is happening not just to well-known public figures, who can become somewhat inured to this because they can find a way to deal with it; it is happening to schoolgirls and young women in universities, who get these pile-ons as well. We should reckon with the fact that it is happening on a much wider basis than many people understand.
Lord Parkinson of Whitley Bay (Con)
Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.
I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.
I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.
Lord Clement-Jones (LD)
I am sorry to interrupt the Minister, but the Law Commission recommended that the DPP’s consent should be required. The case that the Minister has made on previous occasions in some of the consultations that he has had with us is that this offence that the Government have proposed is different from the Law Commission one, and that is why they have not included the DPP’s consent. I am rather baffled by that, because the Law Commission was talking about a high threshold in the first place, and the Minister is talking about a high threshold of intent. Even if he cannot do so now, it would be extremely helpful to tie that down. As the noble Baroness and my noble friend said, 130 organisations are really concerned about the impact of this.
Lord Parkinson of Whitley Bay (Con)
The Law Commission recommended that the consent, but not the personal consent, of the Director of Public Prosecutions should be required. We believe, however, that, because the offence already has tight parameters due to the requirement for an intention to cause serious self-harm amounting to grievous bodily harm, as I have just outlined, an additional safeguard of obtaining the personal consent of the Director of Public Prosecutions is not necessary. We would expect the usual prosecutorial discretion and guidance to provide sufficient safeguards against inappropriate prosecutions in this area. As I say, we will continue to engage with those groups that have helped to inform the drafting of these clauses as they are implemented to make sure that that assessment is indeed borne out.
Lord Parkinson of Whitley Bay (Con)
I will follow up in writing on that point.
Before I conclude, I will mention briefly the further government amendments in my name, which make technical and consequential amendments to ensure that the communications offences, including the self-harm offence, have the appropriate territorial extent. They also set out the respective penalties for the communications offences in Northern Ireland, alongside a minor adjustment to the epilepsy trolling offence, to ensure that its description is more accurate.
I hope that noble Lords will agree that the new criminal laws that we will make through this Bill are a marked improvement on the status quo. I hope that they will continue to support the government amendments. I express my gratitude to the Law Commission and to all noble Lords—
Baroness Finlay of Llandaff (CB)
Just before the Minister sits down—I assume that he has finished his brief on the self-harm amendments; I have been waiting—I have two questions relating to what he said. First, if I heard him right, he said that the person forwarding on is also committing an offence. Does that also apply to those who set up algorithms that disseminate, as opposed to one individual forwarding on to another individual? Those are two very different scenarios. We can see how one individual forwarding to another could be quite targeted and malicious, and we can see how disseminating through an algorithm could have very widespread harms across a lot of people in a lot of different groups—all types of groups—but I am not clear from what he said that that has been caught in his wording.
Secondly—I will ask both questions while I can—I asked the Minister previously why there have been no prosecutions under the Suicide Act. I understood from officials that this amendment creating an offence was to reflect the Suicide Act and that suicide was not included in the Bill because it was already covered as an offence by the Suicide Act. Yet there have been no prosecutions and we have had deaths, so I do not quite understand why I have not had an answer to that.
Lord Parkinson of Whitley Bay (Con)
I will have to write on the second point to try to set that out in further detail. On the question of algorithms, the brief answer is no, algorithms would not be covered in the way a person forwarding on a communication is covered unless the algorithm has been developed with the intention of causing serious self-harm; it is the intention that is part of the test. If somebody creates an algorithm intending people to self-harm, that could be captured, but if it is an algorithm generally passing it on without that specific intention, it may not be. I am happy to write to the noble Baroness further on this, because it is a good question but quite a technical one.
Baroness Finlay of Llandaff (CB)
It needs to be addressed, because these very small websites already alluded to are providing some extremely nasty stuff. They are not providing support to people and helping decrease the amount of harm to those self-harming but seem to be enjoying the spectacle of it. We need to differentiate and make sure that we do not inadvertently let one group get away with disseminating very harmful material simply because it has a small website somewhere else. I hope that will be included in the Minister’s letter; I do not expect him to reply now.
Lord Moylan (Con)
Some of us are slightly disappointed that my noble friend did not respond to my point on the interaction of Clause 160 with the illegal content duty. Essentially, what appears to be creating a criminal offence could simply be a channel for hyperactive censorship on the part of the platforms to prevent the criminal offence taking place. He has not explained that interaction. He may say that there is no interaction and that we would not expect the platforms to take any action against offences under Clause 160, or that we expect a large amount of action, but nothing was said.
Lord Parkinson of Whitley Bay (Con)
If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.
Lord Clement-Jones (LD)
My Lords, I will be extremely brief. There is much to chew on in the Minister’s speech and this was a very useful debate. Some of us will be happier than others; the noble Baroness, Lady Buscombe, will no doubt look forward to the digital markets Bill and I will just have to keep pressing the Minister on the Data Protection and Digital Information Bill.
There is a fundamental misunderstanding about digital identity theft. It will not necessarily always be fraud that is demonstrated—the very theft of the identity is designed to be the crime, and it is not covered by the Fraud Act 2006. I am delighted that the Minister has agreed to talk further with the noble Baroness, Lady Kennedy, because that is a really important area. I am not sure that my noble friend will be that happy with the response, but he will no doubt follow up with the Minister on his amendments.
The Minister made a very clear statement on the substantive aspect of the group, the new crime of encouraging self-harm, but further clarification is still needed. We will look very carefully at what he said in relation to what the Law Commission recommended, because it is really important that we get this right. I know that the Minister will talk further with the noble Baroness, Lady Finlay, who is very well versed in this area. In the meantime, I beg leave to withdraw my amendment.
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both);(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both).”Member’s explanatory statement
This amendment sets out the penalties for the false communications offence in Northern Ireland, since the offence is now to extend to Northern Ireland as well as England and Wales.
Member’s explanatory statement
This amendment adds a reference to England and Wales to differentiate the provision from the similar provision applying to Northern Ireland (see the next amendment in the Minister’s name).
Member’s explanatory statement
This is a technical amendment about extent - the extent of the epilepsy trolling offence in clause 164 is now dealt with by amendments of clause 210 (see the amendments of that clause in the Minister’s name).
“Offence of encouraging or assisting serious self-harm
(1) A person (D) commits an offence if—(a) D does a relevant act capable of encouraging or assisting the serious self-harm of another person, and(b) D’s act was intended to encourage or assist the serious self-harm of another person.(2) D “does a relevant act” if D—(a) communicates in person,(b) sends, transmits or publishes a communication by electronic means,(c) shows a person such a communication,(d) publishes material by any means other than electronic means,(e) sends, gives, shows or makes available to a person—(i) material published as mentioned in paragraph (d), or(ii) any form of correspondence, or(f) sends, gives or makes available to a person an item on which data is stored electronically.(3) “Serious self-harm” means self-harm amounting to—(a) in England and Wales and Northern Ireland, grievous bodily harm within the meaning of the Offences Against the Person Act 1861, and(b) in Scotland, severe injury,and includes successive acts of self-harm which cumulatively reach that threshold.(4) The person referred to in subsection (1)(a) and (b) need not be a specific person (or class of persons) known to, or identified by, D.(5) D may commit an offence under this section whether or not serious self-harm occurs.(6) If a person (D1) arranges for a person (D2) to do an act that is capable of encouraging or assisting the serious self-harm of another person and D2 does that act, D1 is to be treated as also having done it.(7) In the application of subsection (1) to an act by D involving an electronic communication or a publication in physical form, it does not matter whether the content of the communication or publication is created by D (so for example, in the online context, the offence under this section may be committed by forwarding another person’s direct message or sharing another person’s post).(8) In the application of subsection (1) to the sending, transmission or publication by electronic means of a communication consisting of or including a hyperlink to other content, the reference in subsection (2)(b) to the communication is to be read as including a reference to content accessed directly via the hyperlink.(9) In the application of subsection (1) to an act by D involving an item on which data is stored electronically, the reference in subsection (2)(f) to the item is to be read as including a reference to content accessed by means of the item to which the person in receipt of the item is specifically directed by D.(10) A provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends, transmits or publishes it.(11) Any reference in this section to doing an act that is capable of encouraging the serious self-harm of another person includes a reference to doing so by threatening another person or otherwise putting pressure on another person to seriously self-harm. “Seriously self-harm” is to be interpreted consistently with subsection (3).(12) Any reference to an act in this section, except in subsection (3), includes a reference to a course of conduct, and references to doing an act are to be read accordingly.(13) In subsection (3) “act” includes omission.(14) A person who commits an offence under this section is liable—(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);(d) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).”Member’s explanatory statement
This amendment inserts a new offence of encouraging or assisting another person to seriously self-harm, with intent to do so, by means of verbal or electronic communications, publications or correspondence.
Member’s explanatory statement
This amendment omits provisions which relate to offences that extended to England and Wales only, as the offences in question are now to extend to Northern Ireland as well.
Member’s explanatory statement
This amendment ensures that clause 166, which is about the liability of corporate officers for offences, applies in relation to the new offence proposed by the amendment in the Minister’s name to be inserted after clause 164.
Member’s explanatory statement
This amendment ensures that section 127(2)(a) and (b) of the Communications Act 2003 is repealed for Northern Ireland as well as England and Wales (because the false communications offence in clause 160 is now to extend to Northern Ireland as well).
“(1A) Part 1A of Schedule 14 contains amendments consequential on section (Offence of encouraging or assisting serious self-harm).” Member’s explanatory statement
This amendment introduces a Part of Schedule 14 containing consequential amendments related to the new offence proposed by the amendment in the Minister’s name to be inserted after clause 164.
Member’s explanatory statement
This amendment makes it clearer that changes to the Sexual Offences Act 2003 in paragraph 2 of Schedule 14 to the Bill relate to England and Wales only (since the next amendment in the Minister’s name makes equivalent amendments for Northern Ireland).
(b) judgements by providers about whether news publisher content amounts to a relevant offence (see section 14(5) and (10)).”Member’s explanatory statement
This amendment, in effect, re-states the provision currently in clause 14(11), requiring OFCOM’s guidance under clause 171 to cover the judgements described in the amendment.
“Offence of failure to comply with confirmation decision: supplementary
(1) Where a penalty has been imposed on a person by a penalty notice under section 126 in respect of a failure constituting an offence under section (Confirmation decisions: offence)(failure to comply with certain requirements of a confirmation decision), no proceedings may be brought against the person for that offence.(2) A penalty may not be imposed on a person by a penalty notice under section 126 in respect of a failure constituting an offence under section (Confirmation decisions: offence) if—(a) proceedings for the offence have been brought against the person but have not been concluded, or(b) the person has been convicted of the offence.(3) Where a service restriction order under section 131 or an access restriction order under section 133 has been made in relation to a regulated service provided by a person in respect of a failure constituting an offence under section (Confirmation decisions: offence), no proceedings may be brought against the person for that offence.” Member’s explanatory statement
This amendment ensures, among other things, that a person cannot be prosecuted for the new offence created by the new clause to be inserted after clause 125 in the Minister’s name if OFCOM have imposed a financial penalty for the same conduct instead, and vice versa.
Member’s explanatory statement
This amendment adds a reference to clause 137(11) so that that provision (which is about enforcement by civil proceedings) has extra-territorial application.
“(2A) Section (Confirmation decisions: offence) applies to acts done by a person in the United Kingdom or elsewhere (offence of failure to comply with confirmation decision).”Member’s explanatory statement
This amendment gives wide extra-territorial effect to the new offence created by the new clause to be inserted after clause 125 in the Minister’s name (failure to comply with certain requirements of a confirmation decision).
Lord Clement-Jones (LD)
My Lords, this is a real hit-and-run operation from the noble Lord, Lord Stevenson. He has put down an amendment on my favourite subject in the last knockings of the Bill. It is totally impossible to deal with this now—I have been thinking and talking about the whole area of AI governance and ethics for the past seven years—so I am not going to try. It is important, and the advisory committee under Clause 139 should take it into account. Actually, this is much more a question of authenticity and verification than of content. Trying to work out whether something is ChatGPT or GPT-4 content is a hopeless task; you are much more likely to be able to identify whether these are automated users such as chatbots than you are to know about the content itself.
I will leave it there. I missed the future-proofing debate, which I would have loved to have been part of. I look forward to further debates with the noble Viscount, Lord Camrose, on the deficiencies in the White Paper and to the Prime Minister’s much more muscular approach to AI regulation in future.
Lord Parkinson of Whitley Bay (Con)
I am sure that the noble Lord, Lord Stevenson of Balmacara, is smiling over a sherry somewhere about the debate he has facilitated. His is a useful probing amendment and we have had a useful discussion.
The Government certainly recognise the potential challenges posed by artificial intelligence and digitally manipulated content such as deepfakes. As we have heard in previous debates, the Bill ensures that machine-generated content on user-to-user services created by automated tools or machine bots will be regulated where appropriate. Clause 49(4)(b) means that machine-generated content is regulated unless the bot or automated tool producing the content is controlled by the provider of the service.
The labelling of this content via draft legislation is not something to which I can commit today. The Government’s AI regulation White Paper sets out the principles for the responsible development of artificial intelligence in the UK. These principles, such as safety, transparency and accountability, are at the heart of our approach to ensuring the responsible development and use of AI. As set out in the White Paper, we are building an agile approach that is designed to be adaptable in response to emerging developments. We do not wish to introduce a rigid, inflexible form of legislation for what is a flexible and fast-moving technology.
The public consultation on these proposals closed yesterday so I cannot pre-empt our response to it. The Government’s response will provide an update. I am joined on the Front Bench by the Minister for Artificial Intelligence and Intellectual Property, who is happy to meet with the noble Baroness, Lady Kidron, and others before the next stage of the Bill if they wish.
Beyond labelling such content, I can say a bit to make it clear how the Bill will address the risks coming from machine-generated content. The Bill already deals with many of the most serious and illegal forms of manipulated media, including deepfakes, when they fall within scope of services’ safety duties regarding illegal content or content that is potentially harmful to children. Ofcom will recommend measures in its code of practice to tackle such content, which could include labelling where appropriate. In addition, the intimate image abuse amendments that the Government will bring forward will make it a criminal offence to send deepfake images.
In addition to ensuring that companies take action to keep users safe online, we are taking steps to empower users with the skills they need to make safer choices through our work on media literacy. Ofcom, for example, has an ambitious programme of work through which it is funding several initiatives to build people’s resilience to harm online, including initiatives designed to equip people with the skills to identify disinformation. We are keen to continue our discussions with noble Lords on media literacy and will keep an open mind on how it might be a tool for raising awareness of the threats of disinformation and inauthentic content.
With gratitude to the noble Lords, Lord Stevenson and Lord Knight, and everyone else, I hope that the noble Lord, Lord Knight, will be content to withdraw his noble friend’s amendment.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful to everyone for that interesting and quick debate. It is occasionally one’s lot that somebody else tables an amendment but is unavoidably detained in Jerez, drinking sherry, and monitoring things in Hansard while I move the amendment. I am perhaps more persuaded than my noble friend might have been by the arguments that have been made.
We will return to this in other fora in response to the need to regulate AI. However, in the meantime, I enjoyed in particular the John Booth quote from the noble Baroness, Lady Bennett. In respect of this Bill and any of the potential harms around generative AI, if we have a Minister who is mindful of the need for safety by design when we have concluded this Bill then we will have dealt with the bits that we needed to deal with as far as this Bill is concerned.
Member’s explanatory statement
This amendment ensures that, during the transitional period when video-sharing platform services continue to be regulated by Part 4B of the Communications Act 2003, providers of such services are not exempt from the new duty in clause 19 to supply records of risk assessments to OFCOM.
Member’s explanatory statement
This amendment effects the repeal of a provision of the Digital Economy Act 2017 which solely relates to another provision of that Act being repealed.
Member’s explanatory statement
This amendment re-names “content moderation technology” as “content identification technology” as that term is more accurate.
(ii) users of another internet service.”Member’s explanatory statement
This amendment concerns the factors that OFCOM must particularly consider when deciding if content is communicated publicly or privately. The change ensures that one such factor is how easily the content may be shared with users of another service.
Lord Knight of Weymouth (Lab)
My Lords, what more can I say than that I wish to be associated with the comments made by the noble Baroness and then by the noble Lord, Lord Clement-Jones? I look forward to the Minister’s reply.
Lord Parkinson of Whitley Bay (Con)
I am very grateful to the noble Baroness for her amendment, which is a useful opportunity for us to state publicly and share with the Committee the progress we have been making in our helpful discussions on these issues in relation to these amendments. I am very grateful to her and to my noble friends Lord Bethell and Lady Harding for speaking as one on this, including, as is well illustrated, in this short debate this evening.
As the noble Baroness knows, discussions continue on the precise wording of these definitions. I share her optimism that we will be able to reach agreement on a suitable way forward, and I look forward to working with her, my noble friends and others as we do so.
The Bill already includes a definition of age assurance in Clause 207, which is
“measures designed to estimate or verify the age or age-range of users of a service”.
As we look at these issues, we want to avoid using words such as “checking”, which suggests that providers need to take a proactive approach to checking age, as that may inadvertently preclude the use of technologies which determine age through other means, such as profiling. It is also important that any definition of age assurance does not restrict the current and future use of innovative and accurate technologies. I agree that it is important that there should be robust definitions for terms which are not currently defined in the Bill, such as age verification, and recommit to the discussions we continue to have on what terms need to be defined and the best way to define them.
This has been a very helpful short debate with which to end our deliberations in Committee. I am very grateful to noble Lords for all the points that have been raised over the past 10 days, and I am very glad to be ending in this collaborative spirit. There is much for us still to do, and even more for the Office of the Parliamentary Counsel to do, before we return on Report, and I am grateful to it and to the officials working on the Bill. I urge the noble Baroness to withdraw her amendment.
Member’s explanatory statement
This amendment avoids any implication that the power proposed to be inserted by the amendment of the extent clause in the Minister’s name giving power to extend provisions of the Bill to the Crown Dependencies, and related provisions, are limited in extent to the United Kingdom.
“(3) The following provisions extend to England and Wales and Northern Ireland—(a) sections 160 to 164;(b) section 168(1).” Member’s explanatory statement
This amendment revises the extent clause as a result of changes to the extent of the communications offences in Part 10 of the Bill.
“(6) The following provisions extend to Northern Ireland only—(a) section 168(3);(b) section 190(7) to (9).”Member’s explanatory statement
This amendment revises the extent clause so that the amendments of Northern Ireland legislation in clause 168 extend to Northern Ireland only.