Online Safety Bill

Debate between Lord Stevenson of Balmacara and Lord Allan of Hallam

Report stage
Wednesday 12th July 2023 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, I was unfortunately unable to attend round 1 of this debate—I had to leave. My noble friend Lord Knight has absented himself from hearing what I am going to say about his remarks, so he must fear that he had got his lines wrong. I apologised to him for leaving him a bit exposed, because we had not quite anticipated how the conversation would go, but I think he did as well as he could, and I repeat the lines he said: this is not the right Bill to rerun the arguments about the Leveson report. I still believe that. The noble Lord, Lord Clement-Jones, does not think the media Bill is; maybe it is not, but at least we can make sure that the debate is properly argued.

It is interesting that, although we clearly have well-defined positions and antipathies present in the debate, a number of things have been said today that will be helpful, if we manage to get a little closer, in trying to resolve some of the issues outstanding. If I am still around and involved in it, I will approach this by trying to see what we can do together rather than the rights and wrongs of positions we have adopted before. It has worked for this Bill: we have achieved huge changes to the Bill because we decided from the start that we would try to see what was the best that could come out of it. That is the instinct I have as we go forward to any future debate and discussion, whether or not it is on the media Bill.

The puzzling thing here is why this is such a continuing concern that it needs to be brought into to any opportunity we have to discuss these areas. The sense we had in the pre-legislative scrutiny committee, which discussed this to some extent but not in quite the same range as we have tonight, or even in Committee, was that the issues raised in this Bill were really about protecting freedom of expression. At that stage, the Bill still had the legal but harmful clauses in it so perhaps had had less exposure to those issues in the debate we had. I still think it is primarily about that. I still have real concerns about it, as have been raised by one or two people already in our discussion. I do not think the recognised news provider definition is a good one; I do not think the definition of a journalist is a good one. The pre-legislative scrutiny committee wanted an objective test of material based around public interest, but the Government would not accept that, so we are where we are. We must try to ensure that what works is what we have in the Bill in relation to the topics before it.

The primary purpose must be to ensure material that will inform and enhance our knowledge about democracy, current affairs and issues that need to be debated in the public space, so it is clearly right that that which is published by recognised journalists—quality journalists is another phrase that has been used—should be protected, perhaps more than other material, but at the fringes there are still doubts as to whether the Bill does that.

I had taken it that in the amendments I signed up to, government Amendments 158 and 161, the material we were talking about was from recognised news publishers, not material self-generated in social media. I am looking hard at the Minister hoping he will be able to come to my aid when he comes to respond. The issue here is about making sure that material that was not originally broadcast but is still provided by a recognised news publisher is protected from being taken down, and it would not have been if those amendments were not made. I hope that is the right interpretation. That was the basis on which I signed up for them; I do not know quite where it leaves me if that is wrong.

[Lord Allan of Hallam (LD)]

As I opened up that question, just to be clear, I was saying that it is exactly right that an individual user would not be covered, but I was trying to suggest that a social media-only news service that does not exist as a publication or a broadcaster outside social media, if it meets the Clause 50 test to be a recognised news publisher, should be given extra scope under the amendments.

[Lord Stevenson of Balmacara (Lab)]

I hope they do not, and I think the Minister has to answer that question quite directly. The issue here is about quality material that would otherwise be taken down being kept in place so that we can all as a society be informed by that. That does not mean it needs to be from particular sources that we know to be egregious or running material which is certainly not in the public interest. Again, I make the point that that would have been a better way of approaching this in the legislation, but I take the point made by the noble Lord, Lord Allan, who knows his stuff—I often think we ought to bottle him and carry it around so we can take a whiff of his expertise and knowledge every time we get stuck on a problem, but I am not quite sure how we manage that.

Online Safety Bill

Debate between Lord Stevenson of Balmacara and Lord Allan of Hallam

Committee stage
Thursday 27th April 2023 Lords Chamber

[Lord Allan of Hallam (LD)]

My Lords, I would like to mention one issue that I forgot to mention, and I think it would be more efficient to pose the question now to the Minister rather than interject when he is speaking.

On the Government’s Amendments 136A, 136B and 136C on the immigration offences, the point I want to make is that online services can be literal life-savers for people who are engaged in very dangerous journeys, including journeys across the Channel. I hope the Minister will be clear that the intention here is to require platforms to deal only with content, for example, from criminals who are offering trafficking services, and that there is no intention to require platforms somehow to withdraw services from the victims of those traffickers when they are using those services in the interest of saving their own lives or seeking advice that is essential to preserving their own safety.

That would create—as I know he can imagine—real ethical and moral dilemmas, and we should not be giving any signal that we intend to require platforms to withdraw services from people who are in desperate need of help, whatever the circumstances.

[Lord Stevenson of Balmacara (Lab)]

My Lords, we seem to have done it again—a very long list of amendments in a rather ill-conceived group has generated a very interesting discussion. We are getting quite good at this, exchanging views across the table, across the Committee, even within the Benches—Members who perhaps have not often talked together are sharing ideas and thoughts, and that is a wonderful feeling.

I want to start with an apology. I think I may be the person who got the noble Baroness, Lady Kidron, shopped by the former leader—once a leader, always a leader. What I thought I was being asked was whether the Committee would be interested in hearing the views of the noble Viscount who could not be present, and I was very keen, because when he does speak it is from a point of view that we do not often hear. I did not know that it was a transgression of the rules—but of course it is not, really, because we got round it. Nevertheless, I apologise for anything that might have upset the noble Baroness’s blood pressure—it did not stop her making a very good contribution later.

We have covered so much ground that I do not want to try and summarise it in one piece, because you cannot do that. The problem with the group as it stands is that the right reverend Prelate the Bishop of Derby and myself must have some secret connection, because we managed to put down almost the same amendments. They were on issues that then got overtaken by the Minister, who finally got round to—I mean, who put down a nice series of amendments which exactly covered the points we made, so we can lose all those. But this did not stop the right reverend Prelate the Bishop of Guildford making some very good additional points which I think we all benefited from.

I welcome back the noble Baroness, Lady Buscombe, after her illness; she gave us a glimpse of what is to come from her and her colleagues, but I will leave the particular issue that she raised for the Minister to respond to. It raises an issue that I am not competent on, but it is a very important one—we need to get the right balance between what is causing the alarm and difficulty outside in relation to what is happening on the internet, and I think we all agree with her that we should not put any barrier in the way of dealing with that.

Indeed, that was the theme of a number of the points that have been raised on the question of what is or can constitute illegal content, and how we judge it. It is useful to hear again from the master about how you do it in practice. I cannot imagine being in a room of French lawyers and experts and retaining my sanity, let alone making decisions that affect the ability of people to carry on, but the noble Lord did it; he is still here and lives to tell the tale—bearded or otherwise.

The later amendments, particularly from the noble Lord, Lord Clement-Jones, are taking us round in a circle towards the process by which Ofcom will exercise the powers that it is going to get in this area. These are probably worth another debate on their own, and maybe it will come up in a different form, because—I think the noble Baroness, Lady Stowell, made this point as well—there is a problem in having an independent regulator that is also the go-to function for getting advice on how others have to make decisions that are theirs to rule on at the end if they go wrong. That is a complicated way of saying that we may be overloading Ofcom if we also expect it to provide a reservoir of advice on how you deal with the issues that the Bill puts firmly on the companies—I agree that this is a problem that we do not really have an answer to.

My amendments were largely overtaken by the Government’s amendments, but the main one I want to talk about was Amendment 272. I am sorry that the noble Baroness, Lady Morgan, is not here, because her expertise is in an area that I want to talk about, which is fraud—cyber fraud in particular—and how that is going to be brought into the Bill. The issue, which I think has been raised by Which?, but a number of other people have also written to us about it, is that the Bill in Clauses 170 and 171 is trying to establish how a platform should identify illegal content in relation to fraud—but it is quite prescriptive. In particular, it goes into some detail which I will leave for the Minister to respond to, but uniquely it sets out a specific way for gathering information to determine whether content is illegal in this area, although it may have applicability in other areas.

One of the points that have to be taken into account is whether the platform is using human moderators, automated systems or a combination of the two. I am not quite sure why that is there in the Bill; that is really the basis for the tabling of our amendments. Clearly, one would hope that the end result is whether or not illegality has taken place, not how that information has been gathered. If one must make concessions to the process of law because a judgment is made that, because it is automated, it is in some way not as valid as if it had been done by a human moderator, there seems to be a whole world there that we should not be going into. I certainly hope that that is not going to be the case if we are talking about illegality concerning children or other vulnerable people, but that is how the Bill reads at present; I wonder whether the Minister can comment on that.

There is a risk of consumers being harmed here. The figures on fraud in the United Kingdom are extraordinary; the fact that it is not the top priority for everybody, let alone the Government, is extraordinary. It is something like the equivalent of consumers being scammed at the rate of around £7.5 billion per year. A number of awful types of scamming have emerged only because of the internet and social media. They create huge problems of anxiety and emotional distress, with lots of medical care and other things tied in if you want to work out the total bill. So we have a real problem here that we need to settle. It is great that it is in the Bill, but it would be a pity if the movement towards trying to resolve it is in any way infringed on by there being imperfect instructions in the Bill. I wonder whether the Minister would be prepared to respond to that; I would be happy to discuss it with him later, if that is possible.

As a whole, this is an interesting question as we move away from what a crime is towards how people judge how to deal with what they think is a crime but may not be. The noble Lord, Lord Allan, commented on how to do it in practice but one hopes that any initial problems will be overcome as we move forward and people become more experienced with this.

When the Joint Committee considered this issue, we spent a long time talking about why we were concerned about having certainty on the legal prescription in the Bill; that is why we were very much against the idea of “legal but harmful” because it seemed too subjective and too subject to difficulties. Out of that came another thought, which answers the point made by the noble Baroness, Lady Stowell: so much of this is about fine judgments on certain things that are there in stone and that you can work to but you then have to interpret them.

There is a role for Parliament here, I think; we will come on to this in later amendments but, if there is a debate to be had on this, let us not forget the points that have been made here today. If we are going to think again about Ofcom’s activity in practice, that is the sort of thing that either a Joint Committee or Select Committees of the two Houses could easily take on board as an issue that needs to be reflected on, with advice given to Parliament about how it might be taken forward. This might be the answer in the medium term.

In the short term, let us work to the Bill and make sure that it works. Let us learn from the experience but let us then take time out to reflect on it; that would be my recommendation but, obviously, that will be subject to the situation after we finish the Bill. I look forward to hearing the Minister’s response.

Crime and Courts Bill [HL]

Debate between Lord Stevenson of Balmacara and Lord Allan of Hallam

Monday 25th March 2013 Lords Chamber

[Lord Allan of Hallam]

My Lords, I want to make some similar points to those just made by the noble Lord, Lord Inglewood, and in doing so I should like to declare an interest. I work for Facebook, which is a website operator. The points around definition have been made effectively in the scope of the amendments and in the comments of my noble friend Lord Lucas. They exemplify how hard it is to define anything in this area. As the noble Lord, Lord Inglewood, and his committee have found in trying to draw out these definitions, the more one goes into it, the more one finds that in many cases it is an imprecise science. It is hard to define precisely what it is one intends to regulate and does not intend to regulate.

The comments of my noble friend Lord McNally were extremely helpful in clarifying the Government’s intention not to include a wide range of services or individual activities within scope and I picked up on two particular phrases that he used. The first was “press-like” and the clear intention to regulate such services, and the second was “future-proof”, in that these provisions should be future-proofed. Subsection (7) of the proposed new clause set out in Amendment 19 refers to the concept of “News-related material”, but nowhere does it talk about the format of that material. Referring to the point made by the noble Lord, Lord Inglewood, it seems on first reading that “TV-like” and “radio-like” services would be covered. The new schedule set out in Amendment 131 provides an exemption for those who are licensed under the Broadcasting Acts, but again what we see increasingly is the ability to launch services over the internet that are TV-like and radio-like, but where no licence is required. If the legislation is to be future-proofed, it is important to understand whether it is the Government’s intention to restrict this to services that we would regard as being press-like today—most people in common parlance would understand that as being primarily the printed word—or if in the future someone launches a video or audio channel that consists primarily of news-related material—the new online TV-type and radio-type services—it is intended that it should be included in the scheme we are debating today. This is an important clarification for the increasing number of businesses and individuals who would like to move into this field of activity and for the increasing number of consumers who would like to receive their news through these new channels rather than the traditional ones.

[Lord Stevenson of Balmacara]

My Lords, I am grateful to all noble Lords for participating in this debate, which has echoed a number of occasions on which we have been able to touch on these topics in the context of several Bills over recent months. We have not always stood opposite the noble Lord, Lord McNally, although he has been quite strong, particularly as we saw his cherished Defamation Bill begin to slip away from him. However, I think I see it looming in the background, and the noble Lord has cheered up again, which is nice. We also touched on them in the Enterprise and Regulatory Reform Bill, where we did a great deal of work with the excellent amendments tabled by the noble Lord, Lord Skidelsky. They were not moved, but they certainly raised the issues that we are considering today. Of course, we now have the Crime and Courts Bill before us, so there is endless flexibility, and long may that last. I should like particularly to thank the noble Lord, Lord Skidelsky, who has been tireless in tabling amendments that give effect to the detail of the Leveson recommendations and reinforce the fact that the royal charter and its statutory underpinning have been agreed by all three parties in an historic agreement.

We need to recognise that the debate on Leveson has moved on. The most important thing now is to be clear on what the government amendments intend to do and avoid any unnecessary scaremongering. I shall focus on a number of the amendments before us and, like the noble Lord, Lord Skidelsky, I should like the Minister to comment on how he intends to respond to them.

My first strand is on exemplary damages, but I have been sufficiently warned off by the noble Lord, Lord Phillips, even to go down this route. However, there are a couple of points that I would like the Minister to respond to. I understand that a considerable amount of time was spent in the all-party talks on the question of what happens to damages when it transpires that the facts of a case have changed in that the court has facts which were not available to the regulator. Can the Minister help us on this issue as it has happened in recent months? Can he confirm that this is a matter which will be returned to?

Amendment 11C clarifies that the common law gateway for exemplary damages will not apply. Can the Minister confirm that the “for profit” test is not required if the “outrageous” test is met? Amendment 11D makes it clear that a relevant publisher will be vicariously liable for wrongdoing by an employee or a person contracted to work for a publisher which results in liability for exemplary damages in accordance with the ordinary common law tests. Can the Minister confirm that further work will be done on this question? It is a key issue that is dealt with succinctly in the amendment tabled by the noble Lord, Lord Skidelsky. Vicarious liability bears on the morality and culture of the press. It is important that the Government should put on the record today that they agree with the noble Lord, Lord Skidelsky, and that they intend to return to this issue in the Commons to the extent that this may be required. The recent history, after all, shows that it matters. We do not want a situation where publishers literally have a get-out-of-jail-free card, and it would be strange if the media were to be in a privileged position in relation to vicarious liability compared with all other interests in this country. Lastly in this group, Amendment 13A is intended to reassure small publishers that, in deciding the amount of exemplary damages, the court will have regard to the means of the defendant. Can the Minister confirm that the Government will return to this issue when it is considered again in the Commons?

The second group of amendments that I would like to look at contains those amendments that are intended to make it clear that to benefit from cost protection the publisher would have to participate in the self-regulator’s arbitral scheme. With regard to Amendment 17E, the Government’s intention is that in order to benefit from cost protection the publisher would not only have to be a member of an approved regulator but would also have to participate in the scheme. There are those who have argued differently. Surely it makes no sense to provide benefits to publishers simply on the basis that they recognise that an arbitration scheme exists. The point here should be that it is the active participation by publishers in the scheme that entitles them to get cost benefits. In any case, as Lord Justice Leveson pointed out, an incentive to join an arbitration scheme is good for all publishers and will help them and the claimants. Can the Minister confirm that this is his understanding of the situation and that the Government stand ready to confirm this position in the other place?

Amendment 17J asks for clarification, as raised by the noble Lord, Lord Skidelsky, about the commencement of Sections 44 and 46 of the LASPO Act 2012, which was taken through the House by the noble Lord, Lord McNally, so he should know his stuff on this. I should be grateful for some confirmation about the issues that arise from that question. Amendment 19B would require that the recognition panel, which approves the self-regulator, is subject to freedom of information. This is an important matter which surely should be brought forward at this stage. After all, it is something that can be dealt with by secondary legislation. No one would surely expect that the recognition body wishes the power to act in secret. This really is important, so will the Minister give us an assurance that the relevant statutory instrument will be brought forward in good time before the regulator starts its work? Amendment 131A concerns relevant publishers which hold broadcasting licences. The drafting here is a little opaque. We seek an assurance from the Minister that a person who holds a broadcasting licence is excluded only in so far as they publish news-related material in the course of their broadcasting activities. Can the Minister confirm that this is not intended to cover the whole publishing activity of such licence-holders but only their broadcasting activity?

My Amendment 131F, which was put down earlier and is part of this group, has, I think, been overtaken by events. I refer to the extensive introduction which the Minister gave to Amendment 131BA, which provides for:

“A person who publishes a small-scale blog”.

I think it is meant to be a peg to allow for further discussion and debate for this event to happen in the House of Commons. On the basis of that understanding, for which I am grateful to the Minister, I will not press that amendment when the time comes.

Finally, there has been some talk about dates and the time that all this comes into effect. I should be grateful if the Minister could be very clear about what he understands the implementation date to be.