Online Safety Bill

Chris Philp Excerpts

Report stage
Tuesday 12th July 2022 Commons Chamber

[Damian Collins]

The Joint Committee’s recommendation was for a restructuring of the Bill, so that rather than having general duty of care responsibilities that were not defined, we defined those responsibilities based on existing areas of law. The core principle behind the Bill is to take things that are illegal offline, and to regulate such things online based on the legal threshold. That is what the Bill does.

In schedule 7, which did not exist in the draft phase, we have written into the Bill a long list of offences in law. I expect that, as this regime is created, the House will insert more regulations and laws into schedule 7 as priority offences in law. Even if an offence in law is not listed in the priority illegal harms schedule, it can still be a non-priority harm, meaning that even if a company does not have to look for evidence of that offence proactively, it still has to act if it is made aware of the offence. I think the law gives us a very wide range of offences, clearly defined against offences in law, where there are clearly understood legal thresholds.

The question is: what is to be done about other content that may be harmful but sits below the threshold? The Government have made it clear that we intend to bring forward amendments that set out clear priorities for companies on the reporting of such harmful content, where we expect the companies to set out what their policies are. That will include setting out clearly their policies on things such as online abuse and harassment, the circulation of real or manufactured intimate images, content promoting self-harm, content promoting eating disorders or legal suicide content—this is content relating to adults—so the companies will have to be transparent on that point.

[Chris Philp (Croydon South) (Con)]

I congratulate the Minister on his appointment, and I look forward to supporting him in his role as he previously supported me in mine. I think he made an important point a minute ago about content that is legal but considered to be harmful. It has been widely misreported in the press that this Bill censors or prohibits such content. As the Minister said a moment ago, it does no such thing. There is no requirement on platforms to censor or remove content that is legal, and amendment 71 to clause 13 makes that expressly clear. Does he agree that reports suggesting that the Bill mandates censorship of legal content are completely inaccurate?

[Damian Collins]

I am grateful to my hon. Friend, and as I said earlier, he is absolutely right. There is no requirement for platforms to take down legal speech, and they cannot be directed to do so. What we have is a transparency requirement to set out their policies, with particular regard to some of the offences I mentioned earlier, and a wide schedule of things that are offences in law that are enforced through the Bill itself. This is a very important distinction to make. I said to him on Second Reading that I thought the general term “legal but harmful” had added a lot of confusion to the way the Bill was perceived, because it created the impression that the removal of legal speech could be required by order of the regulator, and that is not the case.

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[Alex Davies-Jones]

I welcome the Minister’s commitment, which is something that the previous Minister, the hon. Member for Croydon South (Chris Philp) also committed to in Committee. However, it should have been in the Bill to begin with, or been tabled as an amendment today so that we could discuss it on the Floor of the House. We should not have to wait until the Bill goes to the other place to discuss this fundamental, important point that I know colleagues on the Minister’s own Back Benches have been calling for. Here we are, weeks down the line, with nothing having been done to fix that problem, which we know will be a persistent problem unless action is taken. It is beyond frustrating that no indication was given in Committee of these changes, because they have wide-ranging consequences for the effects of the Bill. Clearly, the Government are distracted with other matters, but I remind the Minister that Labour has long called for a safer internet, and we are keen to get the Bill right.

Let us start with new clause 14, which provides clarification about how online services should determine whether content should be considered illegal, and therefore how the illegal safety duty should apply. The new clause is deeply problematic, and is likely to reduce significantly the amount of illegal content and fraudulent advertising that is correctly identified and acted on. First, companies will be expected to determine whether content is illegal or fraudulently based on information that is

“reasonably available to a provider”,

with reasonableness determined in part by the size and capacity of the provider. That entrenches the problems I have outlined with smaller, high-risk companies being subject to fewer duties despite the acute risks they pose. Having less onerous applications of the illegal safety duties will encourage malign actors to migrate illegal activity on to smaller sites that have less pronounced regulatory expectations placed on them. That has particularly concerning ramifications for children’s protections, which I will come on to shortly. On the other end of the scale, larger sites could use new clause 14 to argue that their size and capacity, and the corresponding volumes of material they are moderating, makes it impractical for them reliably and consistently to identify illegal content.

The second problem arises from the fact that the platforms will need to have

“reasonable grounds to infer that all elements necessary for the commission of the offence, including mental elements, are present or satisfied”.

That significantly raises the threshold at which companies are likely to determine that content is illegal. In practice, companies have routinely failed to remove content where there is clear evidence of illegal intent. That has been the case in instances of child abuse breadcrumbing, where platforms use their own definitions of what constitutes a child abuse image for moderation purposes. Charities believe it is inevitable that companies will look to use this clause to minimise their regulatory obligations to act.

Finally, new clause 14 and its resulting amendments do not appear to be adequately future-proofed. The new clause sets out that judgments should be made

“on the basis of all relevant information that is reasonably available to a provider.”

However, on Meta’s first metaverse device, the Oculus Quest product, that company records only two minutes of footage on a rolling basis. That makes it virtually impossible to detect evidence of grooming, and companies can therefore argue that they cannot detect illegal content because the information is not reasonably available to them. The new clause undermines and weakens the safety mechanisms that the Minister, his team, the previous Minister, and all members of the Joint Committee and the Public Bill Committee have worked so hard to get right. I urge the Minister to reconsider these amendments and withdraw them.

I will now move on to improving the children’s protection measures in the Bill. In Committee, it was clear that one thing we all agreed on, cross-party and across the House, was trying to get the Bill to work for children. With colleagues in the Scottish National party, Labour Members tabled many amendments and new clauses in an attempt to achieve that goal. However, despite their having the backing of numerous children’s charities, including the National Society for the Prevention of Cruelty to Children, 5Rights, Save the Children, Barnardo’s, The Children’s Society and many more, the Government sadly did not accept them. We are grateful to those organisations for their insights and support throughout the Bill’s passage.

We know that children face significant risks online, from bullying and sexist trolling to the most extreme grooming and child abuse. Our amendments focus in particular on preventing grooming and child abuse, but before I speak to them, I associate myself with the amendments tabled by our colleagues in the Scottish National party, the hon. Members for Aberdeen North (Kirsty Blackman) and for Ochil and South Perthshire (John Nicolson). In particular, I associate myself with the sensible changes they have suggested to the Bill at this stage, including a change to children’s access assessments through amendment 162 and a strengthening of duties to prevent harm to children caused by habit-forming features through amendment 190.

Since the Bill was first promised in 2017, the number of online grooming crimes reported to the police has increased by more than 80%. Last year, around 120 sexual communication with children offences were committed every single week, and those are only the reported cases. The NSPCC has warned that that amounts to a

“tsunami of online child abuse”.

We now have the first ever opportunity to legislate for a safer world online for our children.

However, as currently drafted, the Bill falls short by failing to grasp the dynamics of online child abuse and grooming, which rarely occurs on one single platform or app, as mentioned by my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams). In well-established grooming pathways, abusers exploit the design features of open social networks to contact children, then move their communication across to other, more encrypted platforms, including livestreaming sites and encrypted messaging services. For instance, perpetrators manipulate features such as Facebook’s algorithmic friend suggestions to make initial contact with large numbers of children, who they then groom through direct messages before moving to encrypted services such as WhatsApp, where they coerce children into sending sexual images. That range of techniques is often referred to as child abuse breadcrumbing, and is a significant enabler of online child abuse.

I will give a sense of how easy it is for abusers to exploit children by recounting the words and experiences of a survivor, a 15-year-old girl who was groomed on multiple sites:

“I’ve been chatting with this guy online who’s…twice my age. This all started on Instagram but lately all our chats have been on WhatsApp. He seemed really nice to begin with, but then he started making me do these things to ‘prove my trust’ to him, like doing video chats with my chest exposed. Every time I did these things for him, he would ask for more and I felt like it was too late to back out. This whole thing has been slowly destroying me and I’ve been having thoughts of hurting myself.”

I appreciate that it is difficult listening, but that experience is being shared by thousands of other children every year, and we need to be clear about the urgency that is needed to change that.

It will come as a relief to parents and children that, through amendments 58 to 61, the Government have finally agreed to close the loophole that allowed for breadcrumbing to continue. However, I still wish to speak to our amendments 15, 16, and 17 to 19, which were tabled before the Government changed their mind. Together with the Government’s amendments, these changes will bring into scope tens of millions of interactions with accounts that actively enable the discovery and sharing of child abuse material.

Amendment 15 would ensure that platforms have to include in their illegal content risk assessment content that

“reasonably foreseeably facilitates or aids the discovery or dissemination of CSEA content.”

Amendment 16 would ensure that platforms have to maintain proportionate systems and processes to minimise the presence of such content on their sites. The wording of our amendments is tighter and includes aiding the discovery or dissemination of content, whereas the Government’s amendments cover only “commission or facilitation”. Can the Minister tell me why the Government chose that specific wording and opposed the amendments that we tabled in Committee, which would have done the exact same thing? I hope that in the spirit of collaboration that we have fostered throughout the passage of the Bill with the new Minister and his predecessor, the Minister will consider the merit of our amendments 15 and 16.

Labour is extremely concerned about the significant powers that the Bill in its current form gives to the Secretary of State. We see that approach to the Bill as nothing short of a shameless attempt at power-grabbing from a Government whose so-called world-leading Bill is already failing in its most basic duty of keeping people safe online. Two interlinked issues arise from the myriad of powers granted to the Secretary of State throughout the Bill: the first is the unjustified intrusion of the Secretary of State into decisions that are about the regulation of speech, and the second is the unnecessary levels of interference and threats to the independence of Ofcom that arise from the powers of direction to Ofcom in its day-to-day matters and operations. That is not good governance, and it is why Labour has tabled a range of important amendments that the Minister must carefully consider. None of us wants the Bill to place undue powers in the hands of only one individual. That is not a normal approach to regulation, so I fail to see why the Government have chosen to go down that route in this case.

[Chris Philp]

I thank the shadow Minister for giving way—I will miss our exchanges across the Dispatch Box. She is making a point about the Secretary of State powers in, I think, clause 40. Is she at all reassured by the undertakings given in the written ministerial statement tabled by the Secretary of State last Thursday, in which the Government committed to amending the Bill in the Lords to limit the use of those powers to exceptional circumstances only, and precisely defined those circumstances as only being in connection with issues such as public health and public safety?

[Alex Davies-Jones]

I thank the former Minister for his intervention, and I am grateful for that clarification. We debated at length in Committee the importance of the regulator’s independence and the prevention of overarching Secretary of State powers, and of Parliament having a say and being reconvened if required. I welcome the fact that that limitation on the power will be tabled in the other place, but it should have been tabled as an amendment here so that we could have discussed it today. We should not have to wait for the Bill to go to the other place for us to have our say. Who knows what will happen to the Bill tomorrow, next week or further down the line with the Government in utter chaos? We need this to be done now. The Minister must recognise that this is an unparalleled level of power, and one with which the sector and Back Benchers in his own party disagree. Let us work together and make sure the Bill really is fit for purpose, and that Ofcom is truly independent and without interference and has the tools available to it to really create meaningful change and keep us all safe online once and for all.

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[John Nicolson (Ochil and South Perthshire) (SNP)]

I rise to speak to the amendments in my name and those of other right hon. and hon. Members. I welcome the Minister to his place after his much-deserved promotion; as other hon. Members have said, it is great to have somebody who is both passionate and informed as a Minister. I also pay tribute to the hon. Member for Croydon South (Chris Philp), who is sitting on the Back Benches: he worked incredibly hard on the Bill, displayed a mastery of detail throughout the process and was extremely courteous in his dealings with us. I hope that he will be speedily reshuffled back to the Front Bench, which would be much deserved—but obviously not that he should replace the Minister, who I hope will remain in his current position or indeed be elevated from it.

But enough of all this souking, as we say north of the border. As one can see from the number of amendments tabled, the Bill is not only an enormous piece of legislation but a very complex one. Its aims are admirable—there is no reason why this country should not be the safest place in the world to be online—but a glance through the amendments shows how many holes hon. Members think it still has.

The Government have taken some suggestions on board. I welcome the fact that they have finally legislated outright to stop the wicked people who attempt to trigger epileptic seizures by sending flashing gifs; I did not believe that such cruelty was possible until I was briefed about it in preparation for debates on the Bill. I pay particular tribute to wee Zach, whose name is often attached to what has been called Zach’s law.

The amendments to the Bill show that there has been a great deal of cross-party consensus on some issues, on which it has been a pleasure to work with friends in the Labour party. The first issue is addressed, in various ways, by amendments 44 to 46, 13, 14, 21 and 22, which all try to reduce the Secretary of State’s powers under the Bill. In all the correspondence that I have had about the Bill, and I have had a lot, that is the area that has most aggrieved the experts. A coalition of groups with a broad range of interests, including child safety, human rights, women and girls, sport and democracy, all agree that the Secretary of State is granted too many powers under the Bill, which threatens the independence of the regulator. Businesses are also wary of the powers, in part because they cause uncertainty.

The reduction of ministerial powers under the Bill was advised by the Joint Committee on the Draft Online Safety Bill and by the Select Committee on Digital, Culture, Media and Sport, on both of which I served. In Committee, I asked the then Minister whether any stakeholder had come forward in favour of these powers. None had.

Even DCMS Ministers do not agree with the powers. The new Minister was Chair of the Joint Committee, and his Committee’s report said:

“The powers for the Secretary of State to a) modify Codes of Practice to reflect Government policy and b) give guidance to Ofcom give too much power to interfere in Ofcom’s independence and should be removed.”

The Government have made certain concessions with respect to the powers, but they do not go far enough. As the Minister said, the powers should be removed.

We should be clear about exactly what the powers do. Under clause 40, the Secretary of State can

“modify a draft of a code of practice”.

That allows the Government a huge amount of power over the so-called independent communications regulator. I am glad that the Government have listened to the suggestions that my colleagues and I made on Second Reading and in Committee, and have committed to using the power only in “exceptional circumstances” and by further defining “public policy” motives. But “exceptional circumstances” is still too opaque and nebulous a phrase. What exactly does it mean? We do not know. It is not defined—probably intentionally.

The regulator must not be politicised in this way. Several similar pieces of legislation are going through their respective Parliaments or are already in force. In Germany, Australia, Canada, Ireland and the EU, with the Digital Services Act, different Governments have grappled with the issue of making digital regulation future-proof and flexible. None of them has added political powers. The Bill is sadly unique in making such provision.

When a Government have too much influence over what people can say online, the implications for freedom of speech are particularly troubling, especially when the content that they are regulating is not illegal. There are ways to future-proof and enhance the transparency of Ofcom in the Bill that do not require the overreach that these powers give. When we allow the Executive powers over the communications regulator, the protections must be absolute and iron-clad, but as the Bill stands, it gives leeway for abuse of those powers. No matter how slim the Minister feels the chance of that may be, as parliamentarians we must not allow it.

Amendment 187 on human trafficking is an example of a relatively minor change to the Bill that could make a huge difference to people online. Our amendment seeks to deal explicitly with what Meta and other companies refer to as domestic servitude, which is very newsworthy, today of all days, and which we know better as human trafficking. Sadly, this abhorrent practice has been part of our society for hundreds if not thousands of years. Today, human traffickers are aided by various apps and platforms. The same platforms that connect us with old friends and family across the globe have been hijacked by the very worst people in our world, who are using them to create networks of criminal enterprise, none more cruel than human trafficking.

Investigations by the BBC and The Wall Street Journal have uncovered how traffickers use Instagram, Facebook and WhatsApp to advertise, sell and co-ordinate the trafficking of young women. One would have thought that the issue would be of the utmost importance to Meta—Facebook, as it was at the time—yet, as the BBC reported, The Wall Street Journal found that

“the social media giant only took ‘limited action’ until ‘Apple Inc. threatened to remove Facebook’s products from the App Store, unless it cracked down on the practice’.”

I and my friends across the aisle who sat on the DCMS Committee and the Joint Committee on the draft Bill know exactly what it is like to have Facebook’s high heid yins before us. They will do absolutely nothing to respond to legitimate pressure. They understand only one thing: the force of law and of financial penalty. Only when its profits were in danger did Meta take the issue seriously.

The omission of human trafficking from schedule 7 is especially worrying, because if human trafficking is not directly addressed as priority illegal content, we can be certain that it will not be prioritised by the platforms. We know from their previous behaviour that the platforms never do anything that will cost them money unless they are forced to do so. We understand that it is difficult to regulate in respect of human trafficking on platforms: it requires work across borders and platforms, with moderators speaking different languages. It is not cheap or easy, but it is utterly essential. The social media companies make enormous amounts of money, so let us shed no tears for them and for the costs that will be entailed. If human trafficking is not designated as a priority harm, I fear that it will fall by the wayside.

In Committee, the then Minister said that the relevant legislation was covered by other parts of the Bill and that it was not necessary to incorporate offences under the Modern Slavery Act 2015 into priority illegal content. He referred to the complexity of offences such as modern slavery, and said how illegal immigration and prostitution priority offences might cover that already. That is simply not good enough. Human traffickers use platforms as part of their arsenal at every stage of the process, from luring in victims to co-ordinating their movements and threatening their families. The largest platforms have ample capacity to tackle these problems and must be forced to be proactive. The consequences of inaction will be grave.

[Chris Philp]

It is a pleasure to follow the hon. Member for Ochil and South Perthshire (John Nicolson).

Let me begin by repeating my earlier congratulations to my hon. Friend the Member for Folkestone and Hythe (Damian Collins) on assuming his place on the Front Bench. Let me also take this opportunity to extend my thanks to those who served on the Bill Committee with me for some 50 sitting hours—it was, generally speaking, a great pleasure—and, having stepped down from the Front Bench, to thank the civil servants who have worked so hard on the Bill, in some cases over many years.

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[Joanna Cherry]

I hear what the hon. Gentleman is saying, but he will have heard the speech made by his colleague, the right hon. Member for Haltemprice and Howden (Mr Davis). Does he not accept that it is correct to say that there is a risk of an increase in content moderation, and does he therefore see the force of my amendment, which we have previously discussed privately and which is intended to ensure that Twitter and other online service providers are subject to anti-discrimination law in the United Kingdom under the Equality Act 2010?

[Chris Philp]

I did of course hear what was said by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). To be honest, I think that increased scrutiny of content which might constitute abuse of harassment, whether of women or of ethnic minorities, is to be warmly welcomed. The Bill provides that the risk assessors must pay attention to the characteristics of the user. There is no cross-reference to the Equality Act—I know the hon. and learned Lady has submitted a request on that, to which my successor Minister will now be responding—but there are references to characteristics in the provisions on safety duties, and those characteristics do of course include gender and race.

In relation to the risk that these duties are over-interpreted or over-applied, for the first time ever there is a duty for social media firms to have regard to freedom of speech. At present these firms are under no obligation to have regard to it, but clause 19(2) imposes such a duty, and anyone who is concerned about free speech should welcome that. Clauses 15 and 16 go further: clause 15 creates special protections for “content of democratic importance”, while clause 16 does the same for content of journalistic importance. So while I hugely respect and admire my right hon. Friend the Member for Haltemprice and Howden, I do not agree with his analysis in this instance.

I would now like to ask a question of my successor. He may wish to refer to it later or write to me, but if he feels like intervening, I will of course give way to him. I note that four Government amendments have been tabled; I suppose I may have authorised them at some point. Amendments 72, 73, 78 and 82 delete some words in various clauses, for example clauses 13 and 15. They remove the words that refer to treating content “consistently”. The explanatory note attached to amendment 72 acknowledges that, and includes a reference to new clause 14, which defines how providers should go about assessing illegal content, what constitutes illegal content, and how content is to be determined as being in one of the various categories.

As far as I can see, new clause 14 makes no reference to treating, for example, legal but harmful content “consistently”. According to my quick reading—without the benefit of highly capable advice—amendments 72, 73, 78 and 82 remove the obligation to treat content “consistently”, and it is not reintroduced in new clause 14. I may have misread that, or misunderstood it, but I should be grateful if, by way of an intervention, a later speech or a letter, my hon. Friend the Minister could give me some clarification.

[Damian Collins]

I think that the codes of practice establish what we expect the response of companies to be when dealing with priority illegal harm. We would expect the regulator to apply those methods consistently. If my hon. Friend fears that that is no longer the case, I shall be happy to meet him to discuss the matter.

[Chris Philp]

Clause 13(6)(b), for instance, states that the terms of service must be

“applied consistently in relation to content”,

and so forth. As far as I can see, amendment 72 removes the word “consistently”, and the explanatory note accompanying the amendment refers to new clause 14, saying that it does the work of the previous wording, but I cannot see any requirement to act consistently in new clause 14. Perhaps we could pick that up in correspondence later.

[Damian Collins]

If there is any area of doubt, I shall be happy to follow it up, but, as I said earlier, I think we would expect that if the regulator establishes through the codes of practice how a company will respond proactively to identify illegal priority content on its platform, it is inherent that that will be done consistently. We would accept the same approach as part of that process. As I have said, I shall be happy to meet my hon. Friend and discuss any gaps in the process that he thinks may exist, but that is what we expect the outcome to be.

[Chris Philp]

I am grateful to my hon. Friend for his comments. I merely observe that the “consistency” requirements were written into the Bill, and, as far as I can see, are not there now. Perhaps we could discuss it further in correspondence.

Let me turn briefly to clause 40 and the various amendments to it—amendments 44, 45, 13, 46 and others—and the remarks made by the shadow Minister, the hon. Member for Pontypridd (Alex Davies-Jones), about the Secretary of State’s powers. I intervened on the hon. Lady earlier on this subject. It also arose in Committee, when she and many others made important points on whether the powers in clause 40 went too far and whether they impinged reasonably on the independence of the regulator, in this case Ofcom. I welcome the commitments made in the written ministerial statement laid last Thursday—coincidentally shortly after my departure—that there will be amendments in the Lords to circumscribe the circumstances in which the Secretary of State can exercise those powers to exceptional circumstances. I heard the point made by the hon. Member for Ochil and South Perthshire that it was unclear what “exceptional” meant. The term has a relatively well defined meaning in law, but the commitment in the WMS goes further and says that the bases upon which the power can be exercised will be specified and limited to certain matters such as public health or matters concerning international relations. That will severely limit the circumstances in which those powers can be used, and I think it would be unreasonable to expect Ofcom, as a telecommunications regulator, to have expertise in those other areas that I have just mentioned. I think that the narrowing is reasonable, for the reasons that I have set out.

[Julian Knight (Solihull) (Con)]

Those areas are still incredibly broad and open to interpretation. Would it not be easier just to remove the Secretary of State from the process and allow this place to take directly from Ofcom the code of standards that we are talking about so that it can be debated fully in the House?

[Chris Philp]

I understand my hon. Friend’s point. Through his work as the Chairman of the Select Committee he has done fantastic work in scrutinising the Bill. There might be circumstances where one needed to move quickly, which would make the parliamentary intervention he describes a little more difficult, but he makes his point well.

[Julian Knight]

So why not quicken up the process by taking the Secretary of State out of it? We will still have to go through the parliamentary process regardless.

[Chris Philp]

The Government are often in possession of information—for example, security information relating to the UK intelligence community—that Ofcom, as the proposer of a code or a revised code, may not be in possession of. So the ability of the Secretary of State to propose amendments in those narrow fields, based on information that only the Government have access to, is not wholly unreasonable. My hon. Friend will obviously comment further on this in his speech, and no doubt the other place will give anxious scrutiny to the question as well.

I welcome the architecture in new clause 14 in so far as it relates to the definition of illegal content; that is a helpful clarification. I would also like to draw the House’s attention to amendment 16 to clause 9, which makes it clear that acts that are concerned with the commission of a criminal offence or the facilitation of a criminal offence will also trigger the definitions. That is a very welcome widening.

I do not want to try the House’s patience by making too long a speech, given how much the House has heard from me already on this topic, but there are two areas where, as far as I can see, there are no amendments down but which others who scrutinise this later, particularly in the other place, might want to consider. These are areas that I was minded to look at a bit more over the summer. No doubt it will be a relief to some people that I will not be around to do so. The first of the two areas that might bear more thought is clause 137, which talks about giving academic researchers access to social media platforms. I was struck by Frances Haugen’s evidence on this. The current approach in the Bill is for Ofcom to do a report that will takes two years, and I wonder if there could be a way of speeding that up slightly.

The second area concerns the operation of algorithms promoting harmful content. There is of course a duty to consider how that operates, but when it comes algorithms promoting harmful content, I wonder whether we could be a bit firmer in the way we treat that. I do not think that would restrain free speech, because the right of free speech is the right to say something; it is not the right to have an algorithm automatically promoting it. Again, Frances Haugen had some interesting comments on that.

[Sir Jeremy Wright]

I agree that there is scope for more to be done to enable those in academia and in broader civil society to understand more clearly what the harm landscape looks like. Does my hon. Friend agree that if they had access to the sort of information he is describing, we would be able to use their help to understand more fully and more clearly what we can do about those harms?

[Chris Philp]

My right hon. and learned Friend is right, as always. We can only expect Ofcom to do so much, and I think inviting expert academic researchers to look at this material would be welcome. There is already a mechanism in clause 137 to produce a report, but on reflection it might be possible to speed that up. Others who scrutinise the Bill may also reach that conclusion. It is important to think particularly about the operation of algorithmic promotion of harmful content, perhaps in a more prescriptive way than we do already. As I have said, Frances Haugen’s evidence to our Committee in this area was particularly compelling.

[Damian Collins]

I agree with my hon. Friend on both points. I discussed the point about researcher access with him last week, when our roles were reversed, so I am sympathetic to that. There is a difference between that and the researcher access that the Digital Services Act in Europe envisages, which will not have the legal powers that Ofcom will have to compel and demand access to information. It will be complementary but it will not replace the primary powers that Ofcom will have, which will really set our regime above those elsewhere. It is certainly my belief that the algorithmic amplification of harmful content must be addressed in the transparency reports and that, where it relates to illegal activities, it must absolutely be within the scope of the regulator to state that actively promoting illegal content to other people is an offence under this legislation.

[Chris Philp]

On my hon. Friend’s first point, he is right to remind the House that the obligations to disclose information to Ofcom are absolute; they are hard-edged and they carry criminal penalties. Researcher access in no way replaces that; it simply acts as a potential complement to it. On his second point about algorithmic promotion, of course any kind of content that is illegal is prohibited, whether algorithmically promoted or otherwise. The more interesting area relates to content that is legal but perceived as potentially harmful. We have accepted that the judgments on whether that content stays up or not are for the platforms to make. If they wish, they can choose to allow that content simply to stay up. However, it is slightly different when it comes to algorithmically promoting it, because the platform is taking a proactive decision to promote it. That may be an area that is worth thinking about a bit more.

[Damian Collins]

On that point, if a platform has a policy not to accept a certain sort of content, I think the regulators should expect it to say in its transparency report what it is doing to ensure that it is not actively promoting that content through a newsfeed, on Facebook or “next up” on YouTube. I expect that to be absolutely within the scope of the powers we have in place.

[Chris Philp]

In terms of content that is legal but potentially harmful, as the Bill is drafted, the platforms will have to set out their policies, but their policies can say whatever they like, as we discussed earlier. A policy could include actively promoting content that is harmful through algorithms, for commercial purposes. At the moment, the Bill as constructed gives them that freedom. I wonder whether that is an area that we can think about making slightly more prescriptive. Giving them the option to leave the content up there relates to the free speech point, and I accept that, but choosing to algorithmically promote it is slightly different. At the moment, they have the freedom to choose to algorithmically promote content that is toxic but falls just on the right side of legality. If they want to do that, that freedom is there, and I just wonder whether it should be. It is a difficult and complicated topic and we are not going to make progress on it today, but it might be worth giving it a little more thought.

I think I have probably spoken for long enough on this Bill, not just today but over the last few months. I broadly welcome these amendments but I am sure that, as the Bill completes its stages, in the other place as well, there will be opportunities to slightly fine-tune it that all of us can make a contribution to.

[Dame Margaret Hodge]

First, congratulations to the Under-Secretary of State for Digital, Culture, Media and Sport, the hon. Member for Folkestone and Hythe (Damian Collins). I think his is one of the very few appointments in these latest shenanigans that is based on expertise and ability. I really welcome him, and the work he has done on the Bill this week has been terrific. I also thank the hon. Member for Croydon South (Chris Philp). When he held the position, he was open to discussion and he accepted a lot of ideas from many of us across the House. As a result, I think we have a better Bill before us today than we would have had. My gratitude goes to him as well.

I support much of the Bill, and its aim of making the UK the safest place to be online is one that we all share. I support the systems-based approach and the role of Ofcom. I support holding the platforms to account and the importance of protecting children. I also welcome the cross-party work that we have done as Back Benchers, and the roles played by both Ministers and by the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). I thank him for his openness and his willingness to talk to us. Important amendments have been agreed on fraudulent advertising, bringing forward direct liability so there is not a two-year wait, and epilepsy trolling—my hon. Friend the Member for Batley and Spen (Kim Leadbeater) promoted that amendment.

I also welcome the commitment to bring forward amendments in the Lords relating to the amendments tabled by the hon. Member for Brigg and Goole (Andrew Percy) and the right hon. and learned Member for Kenilworth and Southam—I think those amendments are on the amendment paper but it is difficult to tell. It is important that the onus on platforms to be subject to regulation should be based not on size and functionality but on risk of harm. I look forward to seeing those amendments when they come back from the other place. We all know that the smallest platforms can present the greatest risk. The killing of 51 people in the mosques in Christchurch, New Zealand is probably the most egregious example, as the individual concerned had been on 8chan before committing that crime.

I am speaking to amendments 156 and 157 in my name and in the names of other hon. and right hon. Members. These amendments would address the issue of anonymous abuse. I think we all accept that anonymity is hugely important, particularly to vulnerable groups such as victims of domestic violence, victims of child abuse and whistleblowers. We want to retain anonymity for a whole range of groups and, in framing these amendments, I was very conscious of our total commitment to doing so.

Equally, freedom of speech is very important, as the right hon. Member for Haltemprice and Howden (Mr Davis) said, but freedom of speech has never meant freedom to harm, which is not a right this House should promote. It is difficult to define, and it is difficult to get the parameters correct, but we should not think that freedom of speech is an absolute right without constraints.

Foreign Interference Offence: Online Safety Bill

Chris Philp Excerpts

Wednesday 6th July 2022 Written Statements

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

This is a joint statement with the Home Office.



Some states seek to further their strategic interests by going beyond overt political influence towards more covert influencing activity. These ‘interference’ activities are typically not conducted transparently and are outside the norms of diplomacy. Some hostile actors from foreign states use covert and malign political interference activities to undermine the UK’s interests, such as using disinformation to manipulate our political debate or weaken the integrity of our democratic institutions.



The UK has a strong record of responding robustly to state threats, in collaboration with our international partners. Alongside our existing operational response and the current disinformation provisions in the Online Safety Bill, the Government have also introduced the National Security Bill to Parliament. This Bill brings together vital new measures to protect the British public, modernise counter-espionage laws and address the evolving threat to our national security, including by introducing a new foreign interference offence which will capture a number of state-sponsored disinformation efforts.



This offence will target malign activity carried out for, on behalf of, or with the intention to benefit, a foreign power. This includes foreign interference intended to manipulate public discourse, discredit the political system, and undermine the safety or interests of the UK, with state-sponsored disinformation being a prime technique for attempting this kind of interference.



While the National Security Bill will seek to disrupt and deter foreign actors engaging in disinformation campaigns against the UK, it is important that our information environment is also protected from those who would seek to interfere in UK society by exploiting social media platforms and manipulating online spaces towards the objectives of state actors. That is why the Government are going further to address concerns about the threat posed by state-sponsored disinformation by linking the offence of foreign interference in the National Security Bill to duties in the Online Safety Bill. The Security Minister, Damian Hinds MP, has tabled an amendment to the National Security Bill which, if passed, will designate the offence of foreign interference as a “priority offence” in Schedule 7 to the Online Safety Bill.



This amendment will mean that online platforms need to act against foreign interference in line with their safety duties on illegal content, where it meets all three limbs of the foreign interference offence. These are as follows:



a person engages in conduct for, on behalf of, or with intent to benefit a foreign power;

the conduct is intended to interfere in the exercise of rights, manipulate the way people use public services or participate in political and legal processes in the UK, or prejudice the UK’s safety or interests;

the conduct constitutes an offence, involves coercion of any kind, or involves making a misrepresentation for example, is a representation that a reasonable person would consider false or misleading. This includes information which is true but presented in a way which is misleading.



These three tests will capture state-sponsored disinformation that is of most concern: covert attempts by foreign state actors to manipulate our information environment to interfere in UK society and undermine our democratic, political and legal processes. For example, material spread by foreign state entities via fake accounts pretending to be real UK users to influence discussions about the future of the Union. Other examples of online content and activity that would be covered by the new offence, and for which platforms in scope of the Bill would have illegal content duties, could include:

Russian attempts to use disinformation to interfere in future UK elections.

Attempts by state actors to use disinformation to manipulate the legal processes of the UK, such as court proceedings.

The use of false profiles by state actors to spread hacked information online to undermine UK democratic institutions.



This amendment will force companies to take action on a wider range of state-sponsored disinformation and state-linked platform manipulation than they would have to under the Online Safety Bill as it is currently drafted. Should the amendment pass, the offence will be listed as a priority offence, meaning companies will be required proactively to put in place proportionate systems and processes to prevent individuals from encountering content that amounts to this offence, minimising the length of time it is on their service and removing any illegal content on user-to-user services once they become aware of it. They will also need to consider how their design, functionality and algorithms might impact these efforts.



In the context of the foreign interference offence, this could include measures to ensure that platform manipulation—such as misleading users about the ownership of an account, or artificially co-ordinated messaging campaigns—is more difficult, thus mitigating the risk of platform manipulation and disinformation more broadly. We have seen a number of successful efforts by service providers to disrupt state-linked disinformation and hostile influence operations relating to Ukraine on their platforms. We see this amendment building on platforms’ existing work to ensure systems and processes are in place so that these safeguards can be applied more widely and consistently when it comes to online interference aimed at the UK.



Like other offences in scope of the Bill, companies would have to assess whether content amounts to foreign interference. Assessment of foreign interference activity could include judgements based on patterns of behaviours and tactics used, and contextual judgments about the intended effect of the content, which may be aided by relevant knowledge of the political and geopolitical context. In particular, we would expect platforms to consider whether repeated and persistent conduct from particular users or accounts might meet the offence. To help platforms in carrying out this duty, companies will also be able to draw on Ofcom’s codes of practice and any supplementary guidance.



Our approach is a proportionate and effective way to address the threat posed by state-sponsored disinformation while still protecting freedom of expression in the UK. Both Ofcom and in-scope companies will have duties relating to freedom of expression, for which they can be held to account. There are already journalistic protections in the Online Safety Bill which address concerns about media freedom. News publishers’ content on their own sites is not in scope of the Bill and recognised news publishers’ content shared on these platforms will also be exempt from companies’ safety duties. There will also be duties on category 1 companies to protect journalistic content and content of democratic importance.



It is incumbent on us to safeguard our democracy and society from manipulation by state actors online while also retaining the rightful protections for freedom of expression and media freedoms. The proportionate approach I have set out here tackles the most concerning state-sponsored disinformation activity while striking a balance with freedom of expression.

[HCWS186]

Online Safety Bill (Fifteenth sitting)

Chris Philp Excerpts

Committee stage
Thursday 23rd June 2022 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen. Please ensure your phones are switched to silent.

Clause 168

Publication by OFCOM

Question proposed, That the clause stand part of the Bill.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

It is a pleasure to serve under your chairmanship, Sir Roger. Clause 168 is a very short and straightforward clause. Ofcom will be required to publish a variety of documents under the Online Safety Bill. The clause simply requires that this be done in a way that is appropriate and likely to bring it to the attention of any audience who are going to be affected by it. Ofcom is already familiar with this type of statutory obligation through existing legislation, such as the Digital Economy Act 2017, which places similar obligations on Ofcom. Ofcom is well versed in publishing documents in a way that is publicly accessible. Clause 168 puts the obligation on to a clear statutory footing.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

As the Minister said, clause 168 rightly sets out that the raw material the Bill requires of Ofcom is published in a way that will bring it to the attention of any audience likely to be affected by it. It will be important that all the guidance is published in a way that is easily available and accessible, including for people who are not neurotypical, or experience digital exclusion. I think we would all agree, after the work we have done on the Bill, that the subjects are complex and the landscape is difficult to understand. I hope Ofcom will make its documents as accessible as possible.

Question put and agreed to.

Clause 168 accordingly ordered to stand part of the Bill.

Clause 169

Service of notices

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 169 sets out the process for the service of any notice under the Bill, including notices to deal with child sexual exploitation and abuse or terrorism content, information notices, enforcement notices, penalty notices and public statement notices to providers of regulated services both within and outside the United Kingdom. The clause sets out that Ofcom may give a notice to a person by handing it to them, leaving it at the person’s last known address, sending it by post to that address or sending it by email to the person’s email address. It provides clarity regarding who Ofcom must give notice to in respect of different structures. For example, notice may be given to an officer of a body corporate.

[Barbara Keeley]

As the Minister said, clause 169 sets out the process of issuing notices or decisions by Ofcom. It mostly includes provisions about how Ofcom is to contact the company, which seem reasonable. The Opposition do not oppose clause 169.

Question put and agreed to.

Clause 169 accordingly ordered to stand part of the Bill.

Clause 170

Repeal of Part 4B of the Communications Act

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider clauses 171 and 172.

[Chris Philp]

Clause 170 repeals the video-sharing platform regime. While the VSP and online safety regimes have similar objectives, the new framework in the Bill will be broader and will apply to a wider range of online platforms. It is for this reason that we will repeal the VSP regime and transition those entities regulated as VSPs across to the online safety regime, which is broader and more effective in its provisions. The clause simply sets out the intention to repeal the VSP.

Clause 171 repeals part 3 of the Digital Economy Act 2017. As we have discussed previously, the Online Safety Bill now captures all online sites that display pornography, including commercial pornography sites, social media sites, video sharing platforms, forums and search engines. It will provide much greater protection to children than the Digital Economy Act. The Digital Economy Act was criticised for not covering social media platforms, which this Bill does cover. By removing that section from the Digital Economy Act, we are laying the path to regulate properly and more comprehensively.

Finally, in this group, clause 172 amends section 1B of the Protection of Children Act 1978 and creates a defence to the offence of making an indecent photograph of a child for Ofcom, its staff and those assisting Ofcom in exercising its online safety duties. Clearly, we do not want to criminalise Ofcom staff while they are discharging their duties under the Bill that we are imposing on them, so it is reasonable to set out that such a defence exists. I hope that provides clarity to the Committee on the three clauses.

[Barbara Keeley]

The provisions in clauses 170 to 172, as the Minister has said, repeal or amend existing laws for the purposes of the Bill. As Labour supports the need to legislate on the issue of online safety, we will not oppose the clauses. However, I want to note that the entire process, up until the final abandonment of part 3 of the Digital Economy Act under clause 171 appears shambolic. It has been five years now since that part of the Act could have been implemented, which means five years during which children could have been better protected from the harms of pornographic content.

When the Government eventually admitted that part 3 was being ditched, the Minister at the time, the hon. Member for Boston and Skegness (Matt Warman), said that the Government would seek to take action on pornography more quickly than on other parts of the online harms regime. Stakeholders and charities have expressed concerns that we could now see a delay to the implementation of the duties on pornographic content providers, which is similar to the postponement and eventual abandonment of part 3 of the Digital Economy Act. I appreciate that the Minister gave some reassurance of his

“desire to get this done as quickly as possible”—[Official Report, Online Safety Bill Committee, 9 June 2022; c. 308.]

in our debate on clauses 31 to 33, but would it not be better to set out timeframes in the Bill?

Under clause 193, it appears that the only clauses in part 5 to be enacted once the Bill receives Royal Assent will be the definitions—clause 66 and clause 67(4)—and not the duties. That is because Ofcom is expected to issue a call for evidence, after which draft proposals for consultation are published, which then need to be agreed by the Secretary of State and laid before Parliament. There are opportunities there for delays and objections at any stage and, typically, enforcement will be implemented only in a staged fashion, from monitoring to supervision. The consultations and safeguarding processes are necessary to make the guidance robust; we understand that. However, children cannot wait another three years for protections, having been promised protection under part 3 of the Digital Economy Act five years ago, which, as I have said, was never implemented.

The provisions on pornography in part 5 of the Bill require no secondary legislation so they should be implemented as quickly as possible to minimise the amount of time children continue to be exposed to harmful content. It would be irresponsible to wait any longer than absolutely necessary, given the harms already caused by this drawn-out process.

[Kirsty Blackman (Aberdeen North) (SNP)]

Thank you, Sir Roger, for chairing this meeting this morning. I want to agree with the Opposition’s points about the timing issue. If an Act will repeal another one, it needs to make sure that there is no gap in the middle and, if the repeal takes place on one day, that the Bill’s provisions that relate to that are in force and working on the same day, rather than leaving a potential set-up time gap.

On clause 170 and repealing the part of the Communications Act 2003 on video-sharing platform services, some concerns have been raised that the requirements in the Online Safety Bill do not exactly mirror the same provisions in the video-sharing platform rules. I am not saying necessarily or categorically that the Online Safety Bill is less strong than the video-sharing platform rules currently in place. However, if the legislation on video-sharing platform services is repealed, the Online Safety Act, as it will be, will become the main way of regulating video-sharing platforms and there will be a degradation in the protections provided on those platforms and an increase in some of the issues and concerns we have seen raised. Will the Minister keep that under review and consider how that could be improved? We do not want to see this getting worse simply because one regime has been switched for another that, as the Minister said, is broader and has stronger protections. Will he keep under review whether that turns out to be the case when the Act has bedded in, when Ofcom has the ability to take action and properly regulate—particularly, in this case, video-sharing platforms?

[Chris Philp]

I agree with the hon. Member for Worsley and Eccles South, that we want to see these provisions brought into force as quickly as possible, for the reasons that she set out. We are actively thinking about ways of ensuring that these provisions are brought into force as fast as possible. It is something that we have been actively discussing with Ofcom, and that, I hope, will be reflected in the road map that it intends to publish before the summer. That will of course remain an area of close working between the Department for Digital, Culture, Media and Sport and Ofcom, ensuring that these provisions come into force as quickly as possible. Of course, the illegal duties will be brought into force more quickly. That includes the CSEA offences set out in schedule 6.

The hon. Member for Aberdeen North raised questions in relation to the repeal of part 3 of the Digital Economy Act. Although that is on the statute book, it was never commenced. When it is repealed, we will not be removing from force something that is applied at the moment, because the statutory instrument to commence it was never laid. So the point she raised about whether the Bill would come into force the day after the Digital Economy Act is repealed does not apply; but the point she raised about bringing this legislation into force quickly is reasonable and right, and we will work on that.

The hon. Lady asked about the differences in scope between the video-sharing platform and the online safety regime. As I said, the online safety regime does have an increased scope compared with the VSP regime, but I think it is reasonable to keep an eye on that as she suggested, and keep it under review. There is of course a formal review mechanism in clause 149, but I think that more informally, it is reasonable that as the transition is made we keep an eye on it, as a Government and as parliamentarians, to ensure that nothing gets missed out.

I would add that, separately from the Bill, the online advertising programme is taking a holistic look at online advertising in general, and that will also be looking at matters that may also touch on the VSPs and what they regulate.

Question put and agreed to.

Clause 170 accordingly ordered to stand part of the Bill.

Clauses 171 and 172 ordered to stand part of the Bill.

Clause 173

Powers to amend section 36

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to take clauses 174 to 176 stand part.

[Chris Philp]

The clause gives the Secretary of State the power to amend the list of fraudulent offences in section 36 in relation to the duties in relation to fraudulent advertising. These are the new duties that were introduced following feedback from Parliament, the Joint Committee, Martin Lewis and many other people. That is to ensure that we can keep the list of fraudulent offences up to date. The power to make those changes is subject to some constraints, as we would expect. The clause lists the criteria that any new offences must meet before the Secretary of State can include them in the section 36 list, which relates to the prevalence of the paid-for advertisements that amount to the new offence on category 1 services and the risk and severity of harm that that content poses to individuals in the UK.

The clause further limits the Secretary of State’s power to include new fraud offences, listing types of offence that may not be added. Offences from the Consumer Protection from Unfair Trading Regulations would be one instance. As I mentioned, the power to update section 36 is necessary to ensure that the legislation is future-proofed against new legislation and changes in criminal behaviour. Hon. Members have often said that it is important to ensure that the Bill is future-proof, and here is an example of exactly that future-proofing.

--- Later in debate ---

[Kirsty Blackman]

I have a couple of questions, particularly on clause 176 and the powers to amend schedules 6 and 7. I understand the logic for schedule 5 being different—in that terrorism offences are a wholly reserved matter—and therefore why only the Secretary of State would be making any changes.

My question is on the difference in the ways to amend schedules 6 and 7—I am assuming that Government amendment 126, which asks the Secretary of State to consult Scottish Ministers and the Department of Justice in Northern Ireland, and which we have already discussed, will be voted on and approved before we come to clause 176. I do not understand the logic for having different procedures to amend the child sexual exploitation and abuse offences and the priority offences. Why have the Government chosen two different procedures for amending the two schedules?

I understand why that might not be a terribly easy question to answer today, and I would be happy for the Minister to get in touch afterwards with the rationale. It seems to me that both areas are very important, and I do not quite understand why the difference is there.

[Chris Philp]

Let me start by addressing the questions the shadow Minister raised about these powers. She used the phrase “free rein” in her speech, but I would not exactly describe it as free rein. If we turn to clause 179, which we will come to in a moment or two, and subsection (1)(d), (e), (f) and (g), we see that all the regulations made under clauses 173 to 176, which we are debating, require an SI under the affirmative procedure. Parliament will therefore get a chance to have its say, to object and indeed to vote down a provision if it wishes to. It is not that the Secretary of State can act alone; changes are subject to the affirmative SI procedure.

It is reasonable to have a mechanism to change the lists of priority offences and so on by affirmative SI, because the landscape will change and new offences will emerge, and it is important that we keep up to date. The only alternative is primary legislation, and a slot for a new Act of Parliament does not come along all that often—perhaps once every few years for any given topic. I think that would lead to long delays—potentially years—before the various exemptions, lists of priority offences and so on could be updated. I doubt that it is Parliament’s intention, and it would not be good for the public if we had to wait for primary legislation to change the lists. The proposed mechanism is the only sensible and proportionate way to do it, and it is subject to a parliamentary vote.

A comment was made about Ofcom’s independence. The way the offences are defined has no impact on Ofcom’s operational independence. That is about how Ofcom applies the rules; this is about what the rules themselves are. It is right that we are able to update them relatively nimbly by affirmative SI.

The hon. Member for Aberdeen North asked about the differences in the way schedules 6 and 7 can be updated. I will happily drop her a line with further thoughts if she wants me to, but in essence we are happy to get the Scottish child sexual exploitation and abuse offences, set out in part 2 of schedule 6, adopted as soon as Scottish Ministers want. We do not want to delay any measures on child exploitation and abuse, and that is why it is done automatically. Schedule 7, which sets out the other priority offences, could cover any topic at all—any criminal offence could fall under that schedule—whereas schedule 6 is only about child sexual exploitation and abuse. Given that the scope of schedule 7 takes in any criminal offence, it is important to consult Scottish Ministers if it is a Scottish offence but then use the statutory instrument procedure, which applies it to the entire UK internet. Does the hon. Lady want me to write to her, or does that answer her question?

[Kirsty Blackman]

That is actually incredibly helpful. I do not need a further letter, thanks.

[Chris Philp]

I am grateful to the hon. Lady for saving DCMS officials a little ink, and electricity for an email.

I hope I have addressed the points raised in the debate, and I commend the clause to the Committee.

Question put and agreed to.

Clause 173 accordingly ordered to stand part of the Bill.

Clauses 174 and 175 ordered to stand part of the Bill.

Clause 176

Powers to amend Schedules 5, 6 and 7

Amendment made: 126, in clause 176, page 145, line 4, at end insert—

“(5A) The Secretary of State must consult the Scottish Ministers before making regulations under subsection (3) which—

(a) add an offence that extends only to Scotland, or

(b) amend or remove an entry specifying an offence that extends only to Scotland.

(5B) The Secretary of State must consult the Department of Justice in Northern Ireland before making regulations under subsection (3) which—

(a) add an offence that extends only to Northern Ireland, or

(b) amend or remove an entry specifying an offence that extends only to Northern Ireland.”—(Chris Philp.)

This amendment ensures that the Secretary of State must consult the Scottish Ministers or the Department of Justice in Northern Ireland before making regulations which amend Schedule 7 in connection with an offence which extends to Scotland or Northern Ireland only.

Clause 176, as amended, ordered to stand part of the Bill.

Clause 177

Power to make consequential provision

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Clause 178 stand part.

Government amendment 160.

Clause 179 stand part.

[Chris Philp]

As new services and functions emerge and evolve, and platforms and users develop new ways to interact online, the regime will need to adapt. Harms online will also continue to change, and the framework will not function effectively if it cannot respond to these changes. These clauses provide the basis for the exercise of the Secretary of State’s powers under the Bill to make secondary legislation. The Committee has already debated the clauses that confer the relevant powers.

Clause 177 gives the Secretary of State the power to make consequential changes to this legislation or regulations made under it. It further provides that the regulations may amend or repeal relevant provisions made under the Communications Act 2003 or by secondary legislation made under that Act. The power is necessary to give effect to the various regulation-making powers in the Bill, which we have mostly already debated, and to ensure that the provisions of the 2003 Act and regulations that relate to online safety can continue to be updated as appropriate. That is consistent with the principle that the Bill must be flexible and future-proof. The circumstances in which these regulation-making powers may be exercised are specified and constrained by the clauses we have previously debated. Clause 178 ensures that the regulation-making powers in the Bill may make different provisions for different purposes, in particular ensuring that regulations make appropriate provisions for different types of service.

Amendment 160 forms part of a group of amendments that will allow Ofcom to recover costs from the regulated services for work that Ofcom carries out before part 6 of the Bill is commenced. As I said previously, the costs may be recouped over a period of three to five years. Currently, the costs of preparations for the exercise of safety functions include only costs incurred after commencement. The amendment makes sure that initial costs incurred before commencement can be recouped as well.

--- Later in debate ---

[Alex Davies-Jones]

I rise briefly to support amendment 76, in the name of the hon. Member for Aberdeen North. Labour supports broadening the definition of “content” in this way. I refer the Minister to our earlier contributions about the importance of including newspaper comments, for example, in the scope of the Bill. This is a clear example of a key loophole in the Bill. We believe that a broadened definition of “content” would be a positive step forward to ensure that there is future-proofing, to prevent any unnecessary harm from any future content.

[Chris Philp]

The shadow Minister, in her first contribution to the debate, introduced the broad purpose of the various clauses in this group, so I do not propose to repeat those points.

I would like to touch on one or two issues that came up. One is that clause 187 defines the meaning of “harm” throughout the Bill, although clause 150, as we have discussed, has its own internal definition of harm that is different. The more general definition of harm is made very clear in clause 187(2), which states:

“‘Harm’ means physical or psychological harm.”

That means that harm has a very broad construction in the Bill, as it should, to make sure that people are being protected as they ought to be.

--- Later in debate ---

[Kirsty Blackman]

In one of our earlier debates, I asked the Minister about the difference between “oral” and “aural”, and I did not get a very satisfactory answer. I know the difference in their dictionary definition—I understand that they are different, although the words sound the same. I am confused that clause 189 uses “oral” as part of the definition of content, but clause 49 refers to

“one-to-one live aural communications”

in defining things that are excluded.

I do not understand why the Government have chosen to use those two different words in different places in the Bill. It strikes me that, potentially, we mean one or the other. If they do mean two different things, why has one thing been chosen for clause 49 and another thing for clause 189? Why has the choice been made that clause 49 relates to communications that are heard, but clause 189 relates to communications that are said? I do not quite get the Government’s logic in using those two different words.

I know this is a picky point, but in order to have good legislation, we want it to make sense, for there to be a good rationale for everything that is in it and for people to be able to understand it. At the moment, I do not properly understand why the choice has been made to use two different words.

More generally, the definitions in clause 189 seem pretty sensible, notwithstanding what I said in the previous debate in respect of amendment 76, which, with your permission, Sir Roger, I intend to move when we reach the appropriate point.

[Chris Philp]

As the hon. Member for Pontypridd said, clause 189 sets out various points of definition and interpretation necessary for the Bill to be understood and applied.

I turn to the question raised by the hon. Member for Aberdeen North. First, I strongly commend and congratulate her on having noticed the use of the two words. Anyone who thinks that legislation does not get properly scrutinised by Parliament has only to look to the fact that she spotted this difference, 110 pages apart, in two different clauses—clauses 49 and 189. That shows that these things do get properly looked at. I strongly congratulate her on that.

I think the best way of addressing her question is probably to follow up with her after the sitting. Clause 49 relates to regulated user-to-user content. We are in clause 49(2)—is that right?

[Kirsty Blackman]

Subsection (5).

[Chris Philp]

It is cross-referenced in subsection (5). The use of the term “aural” in that subsection refers to sound only—what might typically be considered telephony services. “Oral” is taken to cover livestreaming, which includes pictures and voice. That is the intention behind the use of the two different words. If that is not sufficient to explain the point—it may not be—I would be happy to expand in writing.

[Kirsty Blackman]

That would be helpful, in the light of the concerns I raised and what the hon. Member for Pontypridd mentioned about gaming, and how those communications work on a one-to-one basis. Having clarity in writing on whether clause 49 relates specifically to telephony-type services would be helpful, because that is not exactly how I read it.

[Chris Philp]

Given that the hon. Lady has raised the point, it is reasonable that she requires more detail. I will follow up in writing on that point.

Amendment proposed: 76, in clause 189, page 154, line 34, after “including” insert “but not limited to”.—(Kirsty Blackman.)

This amendment clarifies the definition of “content” in the bill in order that anything communicated by means of an internet service is considered content, not only those examples listed.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Davies-Jones]

Labour has not tabled any amendments to clause 190, which lists the provisions that define or explain terms used in the Bill. However, it will come as no surprise that we dispute the Bill’s definition of harm, and I am grateful to my hon. Friend the Member for Batley and Spen for raising those important points in our lively debate about amendment 112 to clause 150. We maintain that the Minister has missed the point, in that the Bill’s definition of harm fails to truly capture physical harm caused as a consequence of being online. I know that the Minister has promised to closely consider that as we head to Report stage, but I urge him to bear in mind the points raised by Labour, as well as his own Back Benchers.

The Minister knows, because we have repeatedly raised them, that we have concerns about the scope of the Bill’s provisions relating to priority content. I will not repeat myself, but he will be unsurprised to learn that this is an area in which we will continue to prod as the Bill progresses through Parliament.

[Chris Philp]

I have made points on those issues previously. I do not propose to repeat now what I have said before.

Question put and agreed to.

Clause 190 accordingly ordered to stand part of the Bill.

Clause 191 ordered to stand part of the Bill.

Clause 192

Extent

[Chris Philp]

I beg to move amendment 141, in clause 192, page 160, line 9, at end insert—

“(aa) section (Offence under the Obscene Publications Act 1959: OFCOM defence);”.

This amendment provides for NC35 to extend only to England and Wales.

[The Chair]

With this it will be convenient to discuss Government new clause 35—Offence under the Obscene Publications Act 1959: OFCOM defence—

“(1) Section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) is amended in accordance with subsections (2) and (3).

(2) After subsection (5) insert—

“(5A) A person shall not be convicted of an offence against this section of the publication of an obscene article if the person proves that—

(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section188 of the Online Safety Act 2022), and

(b) the person published the article for the purposes of OFCOM’s exercise of any of those functions.”

(3) In subsection (7)—

(a) the words after “In this section” become paragraph (a), and

(b) at the end of that paragraph, insert “;

(b) “OFCOM” means the Office of Communications.””

This new clause (to be inserted after clause 171) amends section 2 of the Obscene Publications Act 1959 to create a defence for OFCOM and their employees etc to the offence of the publication of an obscene article.

[Chris Philp]

New clause 35 amends section 2 of the Obscene Publications Act 1959 to create a defence for Ofcom to the offence of publishing an obscene article where Ofcom is exercising its online safety duties. Ofcom has a range of functions that may result in its staff handling such content, so we want to ensure that that is covered properly. We have debated that already.

Clause 192 covers territorial extent. The regulation of the internet, as a reserved matter, covers all of the United Kingdom, but particular parts of the Bill extend to particular areas of the UK. In repealing that point in the Obscene Publications Act, we are ensuring that the Bill applies to the relevant parts of the United Kingdom, because that area of legislation has different areas of applicability. The clause and our amendments are important in ensuring that that is done in the right way.

--- Later in debate ---

[Alex Davies-Jones]

I welcome the hon. Member’s intervention, and I am grateful for her and her party’s support for this important amendment.

It is also worth drawing colleagues’ attention to the history of issues, which have been brought forward in this place before. We know there was reluctance on the part of Ministers when the Digital Economy Act 2017 was on the parliamentary agenda to commence the all-important part 3, which covered many of the provisions now in part 5. Ultimately, the empty promises made by the Minister’s former colleagues have led to huge, record failures, even though the industry is ready, having had years to prepare to implement the policy. I want to place on record my thanks to campaigning groups such as the Age Verification Providers Association and others, which have shown fierce commitment in getting us this far.

It might help if I cast colleagues’ minds back to the Digital Economy Act 2017, which received Royal Assent in April of that year. Following that, in November 2018, the then Minister of State for Digital and Creative Industries told the Science and Technology Committee that part 3 of the DEA would be in force “by Easter next year”. Then, in December 2018, both Houses of Parliament approved the necessary secondary legislation, the Online Pornography (Commercial Basis) Regulations 2018, and the required statutory guidance.

But shortly after, in April 2018, the first delay arose when the Government published an online press release stating that part 3 of the DEA would not come into force until 15 July 2019. However, June 2019 came around and still there was nothing. On 20 June, five days after it should have come into force, the then Under-Secretary of State told the House of Lords that the defendant had failed to notify the European Commission of the statutory guidance, which would need to be done, and that that would result in a delay to the commencement of part 3

“in the region of six months”.—[Official Report, House of Lords, 20 June 2019; Vol. 798, c. 883.]

However, on 16 October 2019, the then Secretary of State announced via a written statement to Parliament that the Government

“will not be commencing part 3 of the Digital Economy Act 2017 concerning age verification for online pornography.”—[Official Report, 16 October 2019; Vol. 666, c. 17WS.]

A mere 13 days later, the Government called a snap general election. I am sure those are pretty staggering realities for the Minister to hear—and defend—but I am willing to listen to his defence. It really is not good enough. The industry is ready, the technology has been there for quite some time, and, given this Government’s fondness for a U-turn, there are concerns that part 5 of the Bill, which we have spent weeks deliberating, could be abandoned in a similar way as part 3 of the DEA was.

The Minister has failed to concede on any of the issues we have raised in Committee. It seems we are dealing with a Government who are ignoring the wide-ranging gaps and issues in the Bill. He has a relatively last-ditch opportunity to at least bring about some positive change, and to signify that he is willing to admit that the legislation as it stands is far from perfect. The provisions in part 5 are critical—they are probably the most important in the entire Bill—so I urge him to work with Labour to make sure they are put to good use in a more than reasonable timeframe.

[Chris Philp]

On the implementation of part 3 of the Digital Economy Act 2017, all the events that the shadow Minister outlined predated my time in the Department. In fact, apart from the last few weeks of the period she talked about, the events predated my time as a Minister in different Departments, and I cannot speak for the actions and words of Ministers prior to my arrival in DCMS. What I can say, and I have said in Committee, is that we are determined to get the Bill through Parliament and implemented as quickly as we can, particularly the bits to do with child safety and the priority illegal content duties.

The shadow Minister commented at the end of her speech that she thought the Government had been ignoring parliamentary opinion. I take slight issue with that, given that we published a draft Bill in May 2021 and went through a huge process of scrutiny, including by the Joint Committee of the Commons and the Lords. We accepted 66 of the Joint Committee’s recommendations, and made other very important changes to the Bill. We have made changes such as addressing fraudulent advertising, which was previously omitted, and including commercial pornography—meaning protecting children—which is critical in this area.

The Government have made a huge number of changes to the Bill since it was first drafted. Indeed, we have made further changes while the Bill has been before the Committee, including amending clause 35 to strengthen the fraudulent advertising duties on large search companies. Members of Parliament, such as the right hon. Member for East Ham (Sir Stephen Timms), raised that issue on Second Reading. We listened to what was said at that stage and we made the changes.

There have also been quite a few occasions during these Committee proceedings when I have signalled—sometimes subtly, sometimes less so—that there are areas where further changes might be forthcoming as the Bill proceeds through both Houses of Parliament. I do not think the hon. Member for Pontypridd, or any member of the Committee, should be in any doubt that the Government are very open to making changes to the Bill where we are able to and where they are right. We have done so already and we might do so again in the future.

On the specifics of the amendment, we share the intention to protect children from accessing pornography online as quickly as possible. The amendment seeks to set a three-month timeframe within which part 5 must come into force. However, an important consideration for the commencement of part 5 will be the need to ensure that all kinds of providers of online pornography are treated the same, including those hosting user-generated content, which are subject to the duties of part 3. If we take a piecemeal approach, bringing into force part 5, on commercial pornography, before part 3, on user-to-user pornography, that may enable some of the services, which are quite devious, to simply reconfigure their services to circumvent regulation or cease to be categorised as part 5 services and try to be categorised as part 3 services. We want to do this in a comprehensive way to ensure that no one will be able to wriggle out of the provisions in the Bill.

Parliament has also placed a requirement on Ofcom to produce, consult on and publish guidance for in-scope providers on meeting the duties in part 5. The three-month timescale set out in the amendment would be too quick to enable Ofcom to properly consult on that guidance. It is important that the guidance is right; if it is not, it may be legally challenged or turn out to be ineffective.

I understand the need to get this legislation implemented quickly. I understand the scepticism that flows from the long delays and eventual cancellation of part 3 of the Digital Economy Act 2017. I acknowledge that, and I understand where the sentiment comes from. However, I think we are in a different place today. The provisions in the Bill have been crafted to address some of the concerns that Members had about the previous DEA measures—not least the fact that they are more comprehensive, as they cover user-to-user, which the DEA did not. There is therefore a clear commitment to getting this done, and getting it done fast. However, we also have to get it done right, and I think the process we have set out does that.

The Ofcom road map is expected before the summer. I hope that will give further reassurance to the Committee and to Parliament about the speed with which these things can get implemented. I share Members’ sentiments about needing to get this done quickly, but I do not think it is practical or right to do it in the way set out in amendment 49.

[Alex Davies-Jones]

I am grateful for the Minister’s comments. However, I respectfully disagree, given the delays already since 2017. The industry is ready for this. The providers of the age verification services are ready for this. We believe that three months is an adequate timeframe, and it is vital that we get this done as quickly as possible. With that in mind, I will be pushing amendment 49 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

This very important and concise clause sets out that the Bill, when passed, will be cited as the Online Safety Act 2022, which I hope is prophetic when it comes the lightning speed of passage through the House of Lords.

Question put and agreed to.

Clause 194 accordingly ordered to stand part of the Bill.

New Clause 35

Offence under the Obscene Publications Act 1959: OFCOM defence

“(1) Section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) is amended in accordance with subsections (2) and (3).

(2) After subsection (5) insert—

‘(5A) A person shall not be convicted of an offence against this section of the publication of an obscene article if the person proves that—

(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section188 of the Online Safety Act 2022), and

(b) the person published the article for the purposes of OFCOM’s exercise of any of those functions.’

(3) In subsection (7)—

(a) the words after ‘In this section’ become paragraph (a), and

(b) at the end of that paragraph, insert ‘;

(b) “OFCOM” means the Office of Communications.’”—(Chris Philp.)

This new clause (to be inserted after clause 171) amends section 2 of the Obscene Publications Act 1959 to create a defence for OFCOM and their employees etc to the offence of the publication of an obscene article.

Brought up, read the First and Second time, and added to the Bill.

New Clause 42

Recovery of OFCOM’s initial costs

“Schedule (Recovery of OFCOM’s initial costs) makes provision about fees chargeable to providers of regulated services in connection with OFCOM’s recovery of costs incurred on preparations for the exercise of their online safety functions.”—(Chris Philp.)

This new clause introduces NS2.

Brought up, and read the First time.

[Chris Philp]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss Government new clause 43 and Government new schedule 2.

[Chris Philp]

New clause 42 introduces new schedule 2. New clause 43 provides that the additional fees charged to providers under new schedule 2 must be paid into the consolidated fund. We discussed that a few days ago. That is where the fees are currently destined and I owe my right hon. Friend the Member for Basingstoke some commentary on this topic in due course. The Bill already provided that monetary penalties must be paid into the Consolidated Fund; the provisions are now placed into that clause.

New schedule 2, which is quite detailed, makes provisions in connection with Ofcom’s ability to recover its initial costs, which we have previously debated. As discussed, it is important that the taxpayer not only is protected from the ongoing costs but that the set-up costs are recovered. The taxpayer should not have to pay for the regulatory framework; the people who are being regulated should pay, whether the costs are incurred before or after commencement, in line with the “polluter pays” principle. Deep in new schedule 2 is the answer to the question that the hon. Member for Aberdeen North asked a day or two ago about the period over which set-up costs can be recovered, with that period specified as between three and five years. I hope that provides an introduction to the new clauses and new schedules.

[Alex Davies-Jones]

We welcome this grouping, which includes two new clauses and a new schedule. Labour has raised concerns about the future funding of Ofcom more widely, specifically when we discussed groupings on clause 42. The Minister’s response did little to alleviate our concerns about the future of Ofcom’s ability to raise funds to maintain its position as the regulator. Despite that, we welcome the grouping, particularly the provisions in the new schedule, which will require Ofcom to seek to recover the costs it has incurred when preparing to take on functions as the regulator of services under the Bill by charging fees to providers of services. This is an important step, which we see as being broadly in line with the kind of mechanisms already in place for other, similar regulatory regimes.

Ultimately, it is right that fees charged to providers under new schedule 2 must be paid into the Consolidated Fund and important that Ofcom can recover its costs before a full fee structure and governance process is established. However, I have some questions for the Minister. How many people has Ofcom hired into roles, and can any of those costs count towards the calculation of fees? We want to ensure that other areas of regulation do not lose out as a consequence. Broadly speaking, though, we are happy to support the grouping and have not sought to table amendment at this stage.

[Chris Philp]

So far as I am aware, all the costs incurred by Ofcom in relation to the duties in the Bill can be recouped by way of fees. If that is not correct, I will write to the hon. Lady saying so, but my understanding is that any relevant Ofcom cost will be in the scope of the fees.

Question put and agreed to.

New clause 42 accordingly read a Second time, and added to the Bill.

New Clause 43

Payment of sums into the Consolidated Fund

“(1) Section 400 of the Communications Act (destination of penalties etc) is amended as follows.

(2) In subsection (1), after paragraph (i) insert—

‘(j) an amount paid to OFCOM in respect of a penalty imposed by them under Chapter 6 of Part 7 of the Online Safety Act 2022;

(k) an amount paid to OFCOM in respect of an additional fee charged under Schedule (Recovery of OFCOM’s initial costs) to the Online Safety Act 2022.’

(3) In subsection (2), after ‘applies’ insert ‘(except an amount mentioned in subsection (1)(j) or (k))’.

(4) After subsection (3) insert—

‘(3A) Where OFCOM receive an amount mentioned in subsection (1)(j) or (k), it must be paid into the Consolidated Fund of the United Kingdom.’

(5) In the heading, omit ‘licence’.”—(Chris Philp.)

This new clause provides that additional fees charged to providers under NS2 must be paid into the Consolidated Fund. The Bill already provided that monetary penalties must be paid into the Consolidated Fund, and those provisions are now placed in this clause.

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Establishment of Advocacy Body

“(1) There is to be a body corporate (‘the Advocacy Body’) to represent interests of child users of regulated services.

(2) A ‘child user’—

(a) means any person aged 17 years or under who uses or is likely to use regulated internet services; and

(b) includes both any existing child user and any future child user.

(3) The work of the Advocacy Body may include—

(a) representing the interests of child users;

(b) the protection and promotion of these interests;

(c) any other matter connected with those interests.

(4) The ‘interests of child users’ means the interest of children in relation to the discharge by any regulated company of its duties under this Act, including—

(a) safety duties about illegal content, in particular CSEA content;

(b) safety duties protecting children;

(c) ‘enforceable requirements’ relating to children.

(5) The Advocacy Body must have particular regard to the interests of child users that display one or more protected characteristics within the meaning of the Equality Act 2010.

(6) The Advocacy Body will be defined as a statutory consultee for OFCOM’s regulatory decisions which impact upon the interests of children.

(7) The Secretary of State may appoint an organisation known to represent children to be designated the functions under this Act, or may create an organisation to carry out the designated functions.”—(Barbara Keeley.)

This new clause creates a new advocacy body for child users of regulated internet services.

Brought up, and read the First time.

[Barbara Keeley]

I beg to move, That the clause be read a Second time.

New clause 3 would make provision for a statutory user advocacy body representing the interests of children. It would also allow the Secretary of State to appoint a new or existing body as the statutory user advocate. A strong, authoritative and well-resourced voice that can speak for children in regulatory debates would ensure that complex safeguarding issues are well understood, and would also actively inform the regulator’s decisions.

Charities have highlighted that the complaints and reporting mechanisms in the Bill may not always be appropriate for children. Ofcom’s own evidence shows that only 14% to 12 to 15-year-old children have ever reported content. Children who are most at risk of online harms may find it incredibly challenging to complete a multi-stage reporting and complaints process. Dame Rachel de Souza told the Committee:

“I worry that the Bill does not do enough to respond to individual cases of abuse and that it needs to do more to understand issues and concerns directly from children. Children should not have to exhaust the platforms’ ineffective complaints routes, which can take days, weeks or even months. I have just conducted a survey of 2,000 children and asked them about their experiences in the past month. Of those 2,000 children, 50% had seen harmful content and 40% had tried to get content about themselves removed and had not succeeded. For me, there is something really important about listening to children and taking their complaints into account.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 16, Q22.]

A children’s advocacy body would be able to support children with redress mechanisms that are fundamentally targeted at adults. Given how many children now use the internet, that is an essential element that is missing from the Bill. That is why the super-complaints mechanism needs to be strengthened with specific arrangements for children, as advocated by the National Society for the Prevention of Cruelty to Children and other children’s organisations. A statutory user advocacy body could support the regulator, as well as supporting child users. It would actively promote the interests of children in regulatory decision making and offer support by ensuring that an understanding of children’s behaviour and safeguarding is front and centre in its approach.

--- Later in debate ---

[Chris Philp]

Let me start by stating the fact that this Bill, as drafted, rightly has incredibly strong protections for children. The children’s safety duties that we have already debated are extremely strong. They apply to any platform with significant numbers of children using it and they impose a duty on such companies to protect children from harm. The priority illegal safety duties are listed in schedule 6, on child sexual exploitation and abuse offences—they have their very own schedule because we attach such importance to them. Committee members should be in no doubt that protecting children is at the very heart of the Bill. I hope that has been obvious from the debates we have had.

On children’s ability to raise complaints and seek redress under the Bill, it is worth reminding ourselves of a couple of clauses that we have debated previously, through which we are trying to make sure it is as easy as possible for children to report problematic content or to raise complaints. Members will recall that we debated clause 17. Clause 17(6)(c) allows for

“a parent of, or other adult with responsibility for, a child”

to raise content-reporting claims with users, so that children are not left on their own. We have also been clear under the complaints procedures set out in clause 18(2)(c) that those procedures must be

“easy to access, easy to use (including by children)”.

That is an explicit reference to accessibility for children.

The hon. Member for Aberdeen North has also already referred to the fact that in both the children’s risk assessment duties and the adult’s risk assessment duties people’s characteristics, including whether they are a member of a particular group, have to be taken into account. The children’s risk assessment duties are set out in clause 10(6)(d). Children with particular characteristics —orientation, race and so on—have to be particularly considered. The fact that a clause on the children’s risk assessment duties even exists in the first place shows that specific and special consideration has to be given to children and the risks they face. That is hardwired right into the architecture of the Bill.

All the provisions that I have just mentioned—starting with clause 10 on children’s risk assessment duties, right through to the end of the Bill and the priority offences in schedule 6, on child sexual exploitation and abuse offences—show that, right throughout the whole Bill, the protection of children is integral to what we are trying to do with the Bill.

On the consultation that happened in forming and framing the Bill, really extensive engagement and consultation took place throughout the preparation of this piece of legislation, including direct consultation with children themselves, their parents and the many advocacy groups for children. There should be no doubt at all that children have been thoroughly consulted as the Bill has been prepared.

On the specifics of new clause 3, which relate to advocacy for children, as the hon. Member for Aberdeen North referred to in passing a moment ago, there is a mechanism in clause 140 for organisations that represent particular groups, such as children, to raise super-complaints with Ofcom when there is a problem. In fact, when we debated that clause, I used children as an example when I spoke about the “eligible entities” that can raise super-complaints—I used the NSPCC speaking for children as a specific example of the organisations I would expect the term “eligible entity” to include. Clause 140 explicitly empowers organisations such as the NSPCC and others to speak for children.

--- Later in debate ---

[Kim Leadbeater]

I agree wholeheartedly about the importance of the role of the Children’s Commissioner and she does a fantastic job, but is it not testament to the fact that there is a need for this advocacy body that she is advocating for it and thinks it is a really good idea? The Children Act 2004 is a fantastic Act, but that was nearly 20 years ago and the world has changed significantly since then. The Bill shows that. The fact that she is advocating for it may suggest that she sees the need for a separate entity.

[Chris Philp]

There is a danger if we over-create statutory bodies with overlapping responsibilities. I just read out the current statutory functions of the Children’s Commissioner under the 2004 Act. If we were to agree to the new clause, we would basically be creating a second statutory advocate or body with duties that are the same as some of those that the Children’s Commissioner already exercises. I read from section 2 of the Act, where those duties are set out. I do not think that having two people with conflicting or competing duties would be particularly helpful.

[Alex Davies-Jones]

I am grateful to the Minister for his support for Labour legislation. Does he acknowledge that we have different Children’s Commissioners across the nations of the UK? Each would have the same rights to advocate for children, so we would have four, rather than one focusing on one specific issue, which is what the Children’s Commissioners across the UK are advocating for.

[Chris Philp]

I do not have in front of me the relevant devolved legislation—I have only the Children Act 2004 directly in front of me—but I assume it is broadly similar. The hon. Member for Aberdeen North can correct me if I am wrong, but I assume it is probably broadly similar in the way—[Interruption.] She is not sure, so I do not feel too bad about not being sure either. I imagine it is similar. I am not sure that having similar statutory bodies with the same function—we would create another with the new clause—is necessarily helpful.

The Bill sets out formal processes that allow other organisations, such as the NSPCC, to raise complaints that have to be dealt with. That ensures that the voices of groups—including children, but not just children—will be heard. I suspect that if we have a children’s advocacy body, other groups will want them and might feel that they have been overlooked by omission.

The good thing about the way the super-complaint structure in clause 140 works is that it does not prescribe what the groups are. Although I am sure that children will be top of the list, there will be other groups that want to advocate and to be able to bring super-complaints. I imagine that women’s groups will be on that list, along with groups advocating for minorities and people with various sexual orientations. Clause 140 is not exclusive; it allows all these groups to have a voice that must be heard. That is why it is so effective.

My right hon. Friend the Member for Basingstoke and the hon. Member for Batley and Spen asked whether the groups have enough resources to advocate on issues under the super-complaint process. That is a fair question. The allocation of funding to different groups tends to be done via the spending review process. Colleagues in other Departments—the Department for Education or, in the case of victims, the Ministry of Justice—allocate quite a lot of money to third-sector groups. The victims budget was approximately £200 million a year or two ago, and I am told it has risen to £300 million for the current financial year. That is the sort of funding that can find its way into the hands of the organisations that advocate for particular groups of victims. My right hon. Friend asked whether the proceeds of fines could be applied to fund such work, and I have undertaken to raise that with the Treasury.

We already have a statutory advocate for children: the four Children’s Commissioners for the four parts of the United Kingdom. We have the super-complaints process, which covers more than children’s groups, crucial though they are. We have given Ofcom statutory duties to consult when developing its codes of practice, and we have money flowing via the Ministry of Justice, the DFE and others, into advocate groups. Although we agree with the intention behind new clause 3, we believe its objectives are very well covered via the mechanisms that I have just set out at some length.

[Kirsty Blackman]

There have not been all that many times during the debate on the Bill when the Minister has so spectacularly missed the point as he has on this section. I understand everything he said about provisions already being in place to protect to children and the provisions regarding the super-complaints, but the new clause is not intended to be a replacement for the super-complaints procedure, which we all support—in fact, we have tried to strengthen that procedure. The new clause is intended to be an addition—another, very important layer.

Unfortunately, I do not have at the front of my mind the legislation that set up the Children’s Commissioner for Scotland, or the one for England. The Minister talked through some of the provisions and phrasing in the Children Act 2004. He said that the role of the Children’s Commissioner for England is to encourage bodies to act positively on behalf of children—to encourage. There is no requirement for the body to act in the way the Children’s Commissioner says it should act. Changes have been made in Wales establishing the Future Generations Commissioner, who has far more power.

[Chris Philp]

As far as I can tell, the user advocacy body proposed in new clause 3 would not have the ability to compel Ofcom either.

[Kirsty Blackman]

But it would be a statutory consultee that is specifically mentioned in this provision. I cannot find in the Bill a provision giving Ofcom a statutory duty to consult the four Children’s Commissioners. The new clause would make the children’s advocacy body a statutory consultee in decisions that affect children.

[Chris Philp]

The Bill will require Ofcom to consult people who represent the interests of children. Although not named, it would be astonishing if the first people on that list were not the four Children’s Commissioners when developing the relevant codes of practice. The statutory obligation to consult those groups when developing codes of practice and, indeed, guidance is set out in clauses 37(6)(d) and 69(3)(d).

[Kirsty Blackman]

That is very helpful, but there are still shortcomings in what the Minister says. The Bill, as drafted, requires Ofcom to require things of other organisations. Some of the detail is in the Bill, some of the detail will come in secondary legislation and some of the detail will come in the codes of practice published by Ofcom. We broadly agree that the Bill will ensure people are safer on the internet than they currently are, but we do not have all the detail on the Government’s intent. We would like more detail on some things, but we are not saying, “We need every little bit of detail.” If we did, the Bill would not be future-proof. We would not be able to change and update the Bill if we required everything to be in the Bill.

The Bill is not a one-off; it will continually change and grow. Having a user advocacy body would mean that emerging threats can quickly be brought to Ofcom’s attention. Unlike the Children’s Commissioners, who have a hundred other things to do, the entire purpose of this body would be to advocate on behalf of children online. The Children’s Commissioners do an amazing job, but this is not their No. 1 priority. If the Minister wants this to be a world-leading Bill, its No. 1 priority should be to protect the human rights of children.

--- Later in debate ---

[Chris Philp]

I think the hon. Lady is being a little unfair to the Children’s Commissioners. Dame Rachel de Souza is doing a fantastic job of advocating specifically in the digital sphere. She really is doing a fantastic job, and I say that as a Minister. I would not say she is leaving any gaps.

These digital children’s safety issues link to wider children’s safety issues that exist offline, such as sexual exploitation, grooming and so on, so it is useful that the same person advocates for children in both the offline and online worlds.

[Kirsty Blackman]

The new clause asks for an additional body. It is not saying the Children’s Commissioners should be done away with. The Children’s Commissioners do an amazing job, as we have recognised, but the No. 1 priority, certainly for the Children’s Commissioner in Scotland, is to protect the human rights of children; it is not to protect children online, which is what the user advocacy body would do. The body would specifically give the benefit of its experience and specifically use its resources, time and energy to advocate between Ofcom, children and children’s organisations and groups.

The Minister is right that the Bill takes massive steps forward in protecting children online, and he is right that the Children’s Commissioners do a very good job. The work done by the Children’s Commissioners in giving us evidence on behalf of children and children’s organisations has been incredibly powerful and incredibly helpful, but there is still a layer missing. If this Bill is to be future-proof, if it is to work and if it is not to put an undue burden on charitable organisations, we need a user advocacy body. The Minister needs to consider that.

I appreciate that the Government provide money to victim support organisations, which is great, but I am also making a case about potential victims. If the money only goes to those who support people who have already been harmed, it will not allow them to advocate to ensure that more people are not harmed. It will allow them to advocate on the behalf of those who have been harmed—absolutely—but it will not effectively tackle potential and emerging harms. It is a key place where the Bill misses out. I am quite disappointed that the Minister has not recognised that something may be lacking and is so keen to defend his position, because it seems to me that the position of the Opposition is so obviously the right one.

Online Safety Bill (Thirteenth sitting)

Chris Philp Excerpts

Committee stage & Committee Debate - 13th sitting
Tuesday 21st June 2022 Public Bill Committees

[Alex Davies-Jones (Pontypridd) (Lab)]

Bore da, Ms Rees. It is, as ever, a pleasure to serve under your chairship. I rise to speak to clauses 118 to 121 and Government amendments 154 to 157.

As we all know, clause 118 is important and allows Ofcom to impose a financial penalty on a person who fails to complete steps that have been required by Ofcom in a confirmation decision. This is absolutely vital if we are to guarantee that regulated platforms take seriously their responsibilities in keeping us all safe online. We support the use of fines. They are key to overall behavioural change, particularly in the context of personal liability. We welcome clause 118, which outlines the steps Ofcom can take in what we hope will become a powerful deterrent.

Labour also welcomes clause 119. It is vital that Ofcom has these important powers to impose a financial penalty on a person who fails to comply with a notice that requires technology to be implemented to identify and deal with content relating to terrorism and child sexual exploitation and abuse on their service. These are priority harms and the more that can be done to protect us on these two points the better.

Government amendments 155 and 157 ensure that Ofcom has the power to impose a monetary penalty on a provider of a service who fails to pay a fee that it is required to pay under new schedule 2. We see these amendments as crucial in giving Ofcom the important powers it needs to be an effective regulator, which is something we all require. We have some specific observations around new schedule 2, but I will save those until we consider that schedule. For now, we support these amendments and I look forward to outlining our thoughts shortly.

We support clause 120, which allows Ofcom to give a penalty notice to a provider of a regulated service who does not pay the fee due to Ofcom in full. This a vital provision that also ensures that Ofcom’s process to impose a penalty can progress only when it has given due notice to the provider and once the provider has had fair opportunity to make fair representations to Ofcom. This is a fair approach and is central to the Bill, which is why we have not sought to amend.

Finally, we support clause 121, which ensures that Ofcom must state the reasons why it is imposing a penalty, the amount of the penalty and any aggravating or mitigating factors. Ofcom must also state when the penalty must be paid. It is imperative that when issuing a notice Ofcom is incentivised to publish information about the amount, aggravating or mitigating factors and when the penalty must be paid. We support this important clause and have not sought to amend.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

It is a pleasure to serve under your chairmanship once again, Ms Rees, and I congratulate Committee members on evading this morning’s strike action.

I am delighted that the shadow Minister supports the intent behind these clauses, and I will not speak at great length given the unanimity on this topic. As she said, clause 118 allows Ofcom to impose a financial penalty for failure to take specified steps by a deadline set by Ofcom. The maximum penalty that can be imposed is the greater of £18 million or 10% of qualifying worldwide revenue. In the case of large companies, it is likely to be a much larger amount than £18 million.

Clause 119 enables Ofcom to impose financial penalties if the recipient of a section 103 notice does not comply by the deadline. It is very important to ensure that section 103 has proper teeth. Government amendments 154 to 157 make changes that allow Ofcom to recover not only the cost of running the service once the Bill comes into force and into the future but also the preparatory cost of setting up for the Bill to come into force.

As previously discussed, £88 million of funding is being provided to Ofcom in this financial year and next. We believe that something like £20 million of costs that predate these financial years have been funded as well. That adds up to around £108 million. However, the amount that Ofcom recovers will be the actual cost incurred. The figure I provided is simply an indicative estimate. The actual figure would be based on the real costs, which Ofcom would be able to recoup under these measures. That means that the taxpayer—our constituents —will not bear any of the costs, including the set-up and preparatory cost. This is an equitable and fair change to the Bill.

Clause 120 sets out that some regulated providers will be required to pay a regulatory fee to Ofcom, as set out in clause 71. Clause 120 allows Ofcom to impose a financial penalty if a regulated provider does not pay its fee by the deadline it sets. Finally, clause 121 sets out the information that needs to be included in these penalty notices issued by Ofcom.

[Kirsty Blackman (Aberdeen North) (SNP)]

I have questions about the management of the fees and the recovery of the preparatory cost. Does the Minister expect that the initial fees will be higher as a result of having to recoup the preparatory cost and will then reduce? How quickly will the preparatory cost be recovered? Will Ofcom recover it quickly or over a longer period of time?

[Chris Philp]

The Bill provides a power for Ofcom to recover those costs. It does not specify over what time period. I do not think they will be recouped over a period of years. Ofcom can simply recoup the costs in a single hit. I would imagine that Ofcom would seek to recover these costs pretty quickly after receiving these powers. The £108 million is an estimate. The actual figure may be different once the reconciliation and accounting is done. It sounds like a lot of money, but it is spread among a number of very large social media firms. It is not a large amount of money for them in the context of their income, so I would expect that recouping to be done on an expeditious basis—not spread over a number of years. That is my expectation.

Question put and agreed to.

Clause 118 accordingly ordered to stand part of the Bill.

Clause 119 ordered to stand part of the Bill.

Clause 120

Non-payment of fee

Amendments made: 154, in clause 120, page 102, line 20, after “71” insert:

“or Schedule (Recovery of OFCOM’s initial costs)”.

This amendment, and Amendments 155 to 157, ensure that Ofcom have the power to impose a monetary penalty on a provider of a service who fails to pay a fee that they are required to pay under NS2.

Amendment 155, in clause 120, page 102, line 21, leave out “that section” and insert “Part 6”.

Amendment 156, in clause 120, page 102, line 26, after “71” insert—

“or Schedule (Recovery of OFCOM’s initial costs)”

Amendment 157, in clause 120, page 103, line 12, at end insert—

“or Schedule (Recovery of OFCOM’s initial costs)”.—(Chris Philp.)

Clause 120, as amended, ordered to stand part of the Bill.

Clause 121 ordered to stand part of the Bill.

Clause 122

Amount of penalties etc

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss:

Government amendment 158.

That schedule 12 be the Twelfth schedule to the Bill.

[Alex Davies-Jones]

Labour supports clause 122 and schedule 12, which set out in detail the financial penalties that Ofcom may impose, including the maximum penalty that can be imposed. Labour has long supported financial penalties for those failing to comply with the duties in the Bill. We firmly believe that tough action is needed on online safety, but we feel the sanctions should go further and that there should be criminal liability for offences beyond just information-related failures. We welcome clause 122 and schedule 12. It is vital that Ofcom is also required to produce guidelines around how it will determine penalty amounts. Consistency across the board is vital, so we feel this is a positive step forward and have not sought to amend the clause.

Paragraph 8 of schedule 12 requires monetary penalties to be paid into the consolidated fund. There is no change to that requirement, but it now appears in new clause 43, together with the requirement to pay fees charged under new schedule 2 into the consolidated fund. We therefore support the amendments.

[Chris Philp]

I have nothing further to add on these amendments. The shadow Minister has covered them, so I will not detain the Committee further.

Question put and agreed to.

Clause 122 accordingly ordered to stand part of the Bill.

Schedule 12

Penalties imposed by OFCOM under Chapter 6 of Part 7

Amendment made: 158, in schedule 12, page 206, line 43, leave out paragraph 8.—(Chris Philp.)

Paragraph 8 of Schedule 12 requires monetary penalties to be paid into the Consolidated Fund. There is no change to that requirement, but it now appears in NC43 together with the requirement to pay fees charged under NS2 into the Consolidated Fund.

Schedule 12, as amended, agreed to.

Clause 123

Service restriction orders

[Alex Davies-Jones]

I beg to move amendment 50, in clause 123, page 106, line 36, at end insert—

“(9A) OFCOM may apply to the court for service restriction orders against multiple regulated services with one application, through the use of a schedule of relevant services which includes all the information required by subsection (5).”

This amendment would give Ofcom the ability to take action against a schedule of non-compliant sites, while still preserving the right of those sites to oppose the application for, and/or appeal through the courts against any, orders to block access or support services.

--- Later in debate ---

[The Chair]

If no other Members wish to speak to amendments 50 and 51 and clauses 123 to 127, I will call the Minister to respond.

[Chris Philp]

Let me start with amendments 50 and 51, which were introduced by the shadow Minister and supported by the SNP spokesperson. The Government recognise the valid intent behind the amendments, namely to make sure that applications can be streamlined and done quickly, and that Ofcom can make bulk applications if large numbers of service providers violate the new duties to the extent that interim service restriction orders or access restriction orders become necessary.

We want a streamlined process, and we want Ofcom to deal efficiently with it, including, if necessary, by making bulk applications to the court. Thankfully, however, procedures under the existing civil procedure rules already allow so-called multi-party claims to be made. Those claims permit any number of claimants, any number of defendants or respondents and any number of claims to be covered in a single form. The overriding objective of the CPR is that cases are dealt with justly and proportionately. Under the existing civil procedure rules, Ofcom can already make bulk applications to deal with very large numbers of non-compliant websites and service providers in one go. We completely agree with the intent behind the amendments, but their content is already covered by the CPR.

It is worth saying that the business disruption measures—the access restriction orders and the service restriction orders—are intended to be a last resort. They effectively amount to unplugging the websites from the internet so that people in the United Kingdom cannot access them and so that supporting services, such as payment services, do not support them. The measures are quite drastic, although necessary and important, because we do not want companies and social media firms ignoring our legislation. It is important that we have strong measures, but they are last resorts. We would expect Ofcom to use them only when it has taken reasonable steps to enforce compliance using other means.

If a provider outside the UK ignores letters and fines, these measures are the only option available. As the shadow Minister, the hon. Member for Pontypridd, mentioned, some pornography providers probably have no intention of even attempting to comply with our regulations; they are probably not based in the UK, they are never going to pay the fine and they are probably incorporated in some obscure, offshore jurisdiction. Ofcom will need to use these powers in such circumstances, possibly on a bulk scale—I am interested in her comment that that is what the German authorities had to do—but the powers already exist in the CPR.

It is also worth saying that in its application to the courts, Ofcom must set out the information required in clauses 123(5) and 125(3), so evidence that backs up the claim can be submitted, but that does not stop Ofcom doing this on a bulk basis and hitting multiple different companies in one go. Because the matter is already covered in the CPR, I ask the shadow Minister to withdraw the amendment.

[Alex Davies-Jones]

I am interested to know whether the Minister has anything to add about the other clauses. I am happy to give way to him.

[Chris Philp]

I thank the shadow Minister for giving way. I do not have too much to say on the other clauses, because she has introduced them, but in my enthusiasm for explaining the civil procedure rules I neglected to respond to her question about the interim orders in clauses 124 and 126.

The hon. Lady asked what criteria have to be met for these interim orders to be made. The conditions for clause 124 are set out in subsections (3) and (4) of that clause, which states, first, that it has to be

“likely that the…service is failing to comply with an enforceable requirement”—

so it is likely that there has been a breach—and, secondly, that

“the level of risk of harm to individuals in the United Kingdom…and the nature and severity of that harm, are such that it would not be appropriate to wait to establish the failure before applying for the order.”

Similar language in clause 124(4) applies to breaches of section 103.

Essentially, if it is likely that there has been a breach, and if the resulting harm is urgent and severe—for example, if children are at risk—we would expect these interim orders to be used as emergency measures to prevent very severe harm. I hope that answers the shadow Minister’s question. She is very kind, as is the Chair, to allow such a long intervention.

[The Chair]

In a Bill Committee, a Member can speak more than once. However, your intervention resolved the situation amicably, Minister.

--- Later in debate ---

[Alex Davies-Jones]

The Minister and his Back Benchers will, I am sure, be tired of our calls for more transparency, but I will be kind to him and confirm that Labour welcomes the provisions in clause 128.

We believe that it is vital that, once Ofcom has followed the process outlined in clause 110 when issuing a confirmation decision outlining its final decision, that is made public. We particularly welcome provisions to ensure that when a confirmation decision is issued, Ofcom will be obliged to publish the identity of the person to whom the decision was sent, details of the failure to which the decision relates, and details relating to Ofcom’s response.

Indeed, the transparency goes further, as Ofcom will be obliged to publish details of when a penalty notice has been issued in many more areas: when a person fails to comply with a confirmation decision; when a person fails to comply with a notice to deal with terrorism content or child sexual exploitation and abuse content, or both; and when there has been a failure to pay a fee in full. That is welcome indeed. Labour just wishes that the Minister had committed to the same level of transparency on the duties in the Bill to keep us safe in the first place. That said, transparency on enforcement is a positive step forward, so we have not sought to amend the clause at this stage.

[Chris Philp]

I am grateful for the shadow Minister’s support. I have nothing substantive to add, other than to point to the transparency reporting obligation in clause 64, which we have debated.

Question put and agreed to.

Clause 128 accordingly ordered to stand part of the Bill.

Clause 129

OFCOM’s guidance about enforcement action

[Chris Philp]

I beg to move amendment 7, in clause 129, page 114, line 3, at end insert—

“(aa) the Information Commissioner, and”.

This amendment ensures that before Ofcom produce guidance about their exercise of their enforcement powers, they must consult the Information Commissioner.

If I may, in the interest of speed and convenience, I will speak to clause stand part as well.

The clause requires Ofcom to issue guidance setting out how it will use its enforcement powers in the round. That guidance will ensure that the enforcement process is transparent, it will cover the general principles and processes of the enforcement regime, and it is intended to help regulated providers and other stakeholders to understand how Ofcom will exercise its powers.

--- Later in debate ---

[Dan Carden (Liverpool, Walton) (Lab)]

Clause 129(4) states that the Secretary of State will be consulted in the process. What would be the Secretary of State’s powers in relation to that? Would she be able to overrule Ofcom in the writing of its guidance?

[Chris Philp]

The hon. Member asks for my assistance in interpreting legislative language. Generally speaking, “consult” means what it suggests. Ofcom will consult the Secretary of State, as it will consult the ICO, to ascertain the Secretary of State’s opinion, but Ofcom is not bound by that opinion. Unlike the power in a previous clause—I believe it was clause 40—where the Secretary of State could issue a direct instruction to Ofcom on certain matters, here we are talking simply about consulting. When the Secretary of State expresses an opinion in response to the consultation, it is just that—an opinion. I would not expect it to be binding on Ofcom, but I would expect Ofcom to pay proper attention to the views of important stakeholders, which in this case include both the Secretary of State and the ICO. I hope that gives the hon. Member the clarification he was seeking.

[Alex Davies-Jones]

As we know, clause 129 requires Ofcom to publish guidance about how it will use its enforcement powers. It is right that regulated providers and other stakeholders have a full understanding of how, and in what circumstances, Ofcom will have the legislative power to exercise this suite of enforcement powers. We also welcome Government amendment 7, which will ensure that the Information Commissioner—a key and, importantly, independent authority—is included in the consultation before guidance is produced.

As we have just heard, however, the clause sets out that Secretary of State must be consulted before Ofcom produces guidance, including revised or replacement guidance, about how it will use its enforcement powers. We feel that that involves the Secretary of State far too closely in the enforcement of the regime. The Government should be several steps away from being involved, and the clause seriously undermines Ofcom’s independence—the importance of which we have been keen to stress as the Bill progresses, and on which Conservative Back Benchers have shared our view—so we cannot support the clause.

[Chris Philp]

I repeat the point I made to the hon. Member for Liverpool, Walton a moment ago. This is simply an obligation to consult. The clause gives the Secretary of State an opportunity to offer an opinion, but it is just that—an opinion. It is not binding on Ofcom, which may take that opinion into account or not at its discretion. This provision sits alongside the requirement to consult the Information Commissioner’s Office. I respectfully disagree with the suggestion that it represents unwarranted and inappropriate interference in the operation of a regulator. Consultation between organs of state is appropriate and sensible, but in this case it does not fetter Ofcom’s ability to act at its own discretion. I respectfully do not agree with the shadow Minister’s analysis.

[Kirsty Blackman]

Apologies, Ms Rees, for coming in a bit late on this, but I was not aware of the intention to vote against the clause. I want to make clear what the Scottish National party intends to do, and the logic behind it. The inclusion of Government amendment 7 is sensible, and I am glad that the Minister has tabled it. Clause 129 is incredibly important, and the requirement to publish guidance will ensure that there is a level of transparency, which we and the Labour Front Benchers have been asking for.

The Minister has been clear about the requirement for Ofcom to consult the Secretary of State, rather than to be directed by them. As a whole, this Bill gives the Secretary of State far too much power, and far too much ability to intervene in the workings of Ofcom. In this case, however, I do not have an issue with the Secretary of State being consulted, so I intend to support the inclusion of this clause, as amended by Government amendment 7.



Question put, That the amendment be made.

--- Later in debate ---

[Dan Carden]

When I spoke at the very beginning of the Committee’s proceedings, I said that the legislation was necessary, that it was a starting point and that it would no doubt change and develop over time. However, I have been surprised at how little, considering all of the rhetoric we have heard from the Secretary of State and other Ministers, the Bill actually deals with the general societal harm that comes from the internet. This is perhaps the only place in the Bill where it is covered.

I am thinking of the echo chambers that are created around disinformation and the algorithms that companies use. I really want to hear from the Minister where he sees this developing and why it is so weak and wishy-washy. While I welcome that much of the Bill seeks to deal with the criminality of individuals and the harm and abuse that can be carried out over the internet, overall it misses a great opportunity to deal with the harmful impact the internet can have on society.

[Chris Philp]

Let me start by speaking on the issue of disinformation more widely, which clearly is the target of the two amendments and the topic of clause 130. First, it is worth reminding the Committee that non-legislatively—operationally—the Government are taking action on the disinformation problem via the counter-disinformation unit of the Department for Digital, Culture, Media and Sport, which we have discussed previously.

The unit has been established to monitor social media firms and sites for disinformation and then to take action and work with social media firms to take it down. For the first couple of years of its operation, it understandably focused on disinformation connected to covid. In the last two or three months, it has focused on disinformation relating to the Russia-Ukraine conflict —in particular propaganda being spread by the Russian Government, which, disgracefully, has included denying responsibility for various atrocities, including those committed at Bucha. In fact, in cases in which the counter-disinformation unit has not got an appropriate response from social media firms, those issues have been escalated to me, and I have raised them directly with those firms, including Twitter, which has tolerated all kinds of disinformation from overt Russian state outlets and channels, including from Russian embassy Twitter accounts, which are of particular concern to me. Non-legislative action is being taken via the CDU.

--- Later in debate ---

[Kim Leadbeater (Batley and Spen) (Lab)]

It is fantastic to hear that those other things are happening—that is all well and good—but surely we should explicitly call out disinformation and misinformation in the Online Safety Bill. The package of other measures that the Minister mentions is fantastic, but I think they have to be in the Bill.

[Chris Philp]

The hon. Lady says that those measures should be in the Bill—more than they already are—but as I have pointed out, the way in which the legal architecture of the Bill works means that the mechanisms to do that would be adding a criminal offence to schedule 7 as a priority offence, for example, or using a statutory instrument to designate the relevant kind of harm as a priority harm, which we plan to do in due course for a number of harms. The Bill can cover disinformation with the use of those mechanisms.

We have not put the harmful to adults content in the Bill; it will be set out in statutory instruments. The National Security Bill is still progressing through Parliament, and we cannot have in schedule 7 of this Bill an offence that has not yet been passed by Parliament. I hope that that explains the legal architecture and mechanisms that could be used under the Bill to give force to those matters.

On amendment 57, the Government feel that six months is a very short time within which to reach clear conclusions, and that 18 months is a more appropriate timeframe in which to understand how the Bill is bedding in and operating. Amendment 58 would require Ofcom to produce a code of practice on system-level disinformation. To be clear, the Bill already requires Ofcom to produce codes of practice that set out the steps that providers will take to tackle illegal content— I mentioned the new National Security Bill, which is going through Parliament—and harmful content, which may, in some circumstances, include disinformation.

Disinformation that is illegal or harmful to individuals is in scope of the duties set out in the Bill. Ofcom’s codes of practice will, as part of those duties, have to set out the steps that providers should take to reduce harm to users that arises from such disinformation. Those steps could include content-neutral design choices or interventions of other kinds. We would like Ofcom to have a certain amount of flexibility in how it develops those codes of practice, including by being able to combine or disaggregate those codes in ways that are most helpful to the general public and the services that have to pay regard to them. That is why we have constructed them in the way we have. I hope that provides clarity about the way that disinformation can be brought into the scope of the Bill and how that measure then flows through to the codes of practice. I gently resist amendments 57 and 58 while supporting the clause standing part of the Bill.

Question put, That the amendment be made.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

The clause allows Ofcom to confer functions on the content board in relation to content-related functions under the Bill, but does not require it to do so. We take the view that how Ofcom manages its responsibilities internally is a matter for Ofcom. That may change over time. The clause simply provides that Ofcom may, if Ofcom wishes, ask its content board to consider online safety matters alongside its existing responsibilities. I trust that the Committee considers that a reasonable measure.

[Alex Davies-Jones]

Labour welcomes the clause, which, as the Minister has said, sets out some important clarifications with respect to the Communications Act 2003. We welcome the clarification that the content board will have delegated and advisory responsibilities, and look forward to the Minister’s confirmation of exactly what those are and how this will work in practice. It is important that the content board and the advisory committee on disinformation and misinformation are compelled to communicate, too, so we look forward to an update from the Minister on what provisions in the Bill will ensure that that happens.

[Chris Philp]

The shadow Minister has asked how this will work in practice, but as I said, the internal operation of Ofcom obviously is a matter for Ofcom. As Members have said in the recent past—indeed, in the last hour—they do not welcome undue Government interference in the operation of Ofcom, so it is right that we leave this as a matter for Ofcom. We are providing Ofcom with the power, but we are not compelling it to use that power. We are respecting Ofcom’s operational independence—a point that shadow Ministers and Opposition Members have made very recently.

Question put and agreed to.

Clause 131 accordingly ordered to stand part of the Bill.

Clause 132

Research about users’ experiences of regulated services

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 133 stand part.

--- Later in debate ---

[Dan Carden]

I agree with the right hon. Member for Basingstoke that these are important clauses. I want to put them into the context of what we heard from Frances Haugen, who, when she spoke to Congress, said that Facebook consistently chose to maximise its growth rather than implement safeguards on its platforms. She said:

“During my time at Facebook, I came to realise a devastating truth: Almost no one outside of Facebook knows what happens inside Facebook. “The company intentionally hides vital information from the public, from the U.S. government, and from governments around the world.”

When we consider users’ experiences, I do not think it is good enough just to look at how the user engages with information. We need far more transparency about how the companies themselves are run. I would like to hear the Minister’s views on how this clause, which looks at users’ experiences, can go further in dealing with the harms at source, with the companies, and making sure a light is shone on their practices.

[Chris Philp]

I welcome the support of the hon. Member for Pontypridd for these clauses. I will turn to the questions raised by my right hon. Friend the Member for Basingstoke. First, she asked whether Ofcom has to publish these reports so that the public, media and Parliament can see what they say. I am pleased to confirm that Ofcom does have to publish the reports; section 15 of the Communications Act 2003 imposes a duty on Ofcom to publish reports of this kind.

Secondly, my right hon. Friend asked about educating the public on issues pertinent to these reports, which is what we would call a media literacy duty. Again, I confirm that, under the Communications Act, Ofcom has a statutory duty to promote media literacy, which would include matters that flow from these reports. In fact, Ofcom published an expanded and updated set of policies in that area at the end of last year, which is why the old clause 103 in the original version of this Bill was removed—Ofcom had already gone further than that clause required.

Thirdly, my right hon. Friend asked about the changes that might happen in response to the findings of these reports. Of course, it is open to Ofcom—indeed, I think this Committee would expect it—to update its codes of practice, which it can do from time to time, in response to the findings of these reports. That is a good example of why it is important for those codes of practice to be written by Ofcom, rather than being set out in primary legislation. It means that when some new fact or circumstance arises or some new bit of research, such as the information required in this clause, comes out, those codes of practice can be changed. I hope that addresses the questions my right hon. Friend asked.

The hon. Member for Liverpool, Walton asked about transparency, referring to Frances Haugen’s testimony to the US Senate and her disclosures to The Wall Street Journal, as well as the evidence she gave this House, both to the Joint Committee and to this Committee just before the Whitsun recess. I have also met her bilaterally to discuss these issues. The hon. Gentleman is quite right to point out that these social media firms use Facebook as an example, although there are others that are also extremely secretive about what they say in public, to the media and even to representative bodies such as the United States Congress. That is why, as he says, it is extremely important that they are compelled to be a lot more transparent.

The Bill contains a large number of provisions compelling or requiring social media firms to make disclosures to Ofcom as the regulator. However, it is important to have public disclosure as well. It is possible that the hon. Member for Liverpool, Walton was not in his place when we came to the clause in question, but if he turns to clause 64 on page 56, he will see that it includes a requirement for Ofcom to give every provider of a relevant service a notice compelling them to publish a transparency report. I hope he will see that the transparency obligation that he quite rightly refers to—it is necessary—is set out in clause 64(1). I hope that answers the points that Committee members have raised.

Question put and agreed to.

Clause 132 accordingly ordered to stand part of the Bill.

Clause 133 ordered to stand part of the Bill.

Clause 134

OFCOM’s statement about freedom of expression and privacy

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

As we all know, the clause requires Ofcom to publish annual reports on the steps it has taken, when carrying out online safety functions, to uphold users’ rights under articles 8 and 10 of the convention, as required by section 6 of the Human Rights Act 1998. It will come as no surprise to the Minister that Labour entirely supports this clause.

Upholding users’ rights is a central part of this Bill, and it is a topic we have debated repeatedly in our proceedings. I know that the Minister faces challenges of his own, as the Opposition do, regarding the complicated balance between freedom of speech and safety online. It is only right and proper, therefore, for Ofcom to have a specific duty to publish reports about what steps it is taking to ensure that the online space is fair and equal for all.

That being said, we know that we can and should go further. My hon. Friend the Member for Batley and Spen will shortly address an important new clause tabled in her name—I believe it is new clause 25—so I will do my best not to repeat her comments, but it is important to say that Ofcom must be compelled to publish reports on how its overall regulatory operating function is working. Although Labour welcomes clause 134 and especially its commitment to upholding users’ rights, we believe that when many feel excluded in the existing online space, Ofcom can do more in its annual reporting. For now, however, we support clause 134.

[Chris Philp]

I welcome the shadow Minister’s continuing support for these clauses. Clause 134 sets out the requirement on Ofcom to publish reports setting out how it has complied with articles 8 and 10 of the European convention on human rights.

I will pause for a second, because my hon. Friend the Member for Don Valley and others have raised concerns about the implications of the Bill for freedom of speech. In response to a question he asked last week, I set out in some detail the reasons why I think the Bill improves the position for free speech online compared with the very unsatisfactory status quo. This clause further strengthens that case, because it requires this report and reminds us that Ofcom must discharge its duties in a manner compatible with articles 8 and 10 of the ECHR.

From memory, article 8 enshrines the right to a family life, and article 10 enshrines the right to free speech, backed up by quite an extensive body of case law. The clause reminds us that the powers that the Bill confers on Ofcom must be exercised—indeed, can only be exercised—in conformity with the article 10 duties on free speech. I hope that that gives my hon. Friend additional assurance about the strength of free speech protection inherent in the Bill. I apologise for speaking at a little length on a short clause, but I think that was an important point to make.

Question put and agreed to.

Clause 134 accordingly ordered to stand part of the Bill.

Clause 135

OFCOM’s transparency reports

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

Again, Labour welcomes clause 135, which places a duty on Ofcom to produce its own reports based on information from the transparency reports that providers are required to publish. However, the Minister will know that Labour feels the Bill has much more work to do on transparency more widely, as we have repeatedly outlined through our debates. The Minister rejected our calls for increased transparency when we were addressing, I believe, clause 61. We are not alone in feeling that transparency reports should go further. The sector and his own Back Benchers are calling for it, yet so far his Department has failed to act.

It is a welcome step that Ofcom must produce its own reports based on information from the provider’s transparency reports, but the ultimate motivation for the reports to provide a truly accurate depiction of the situation online is for them to be made public. I know the Minister has concerns around security, but of course no one wants to see users put at harm unnecessarily. That is not what we are asking for here. I will refrain from repeating debates we have already had at length, but I wish to again put on the record our concerns around the transparency reporting process as it stands.

That being said, we support clause 135. It is right that Ofcom is compelled to produce its own reports; we just wish they were made public. With the transparency reports coming from the providers, we only wish they would go further.

[Chris Philp]

I have spoken to these points previously, so I do not want to tax the Committee’s patience by repeating what I have said.

Question put and agreed to.

Clause 135 accordingly ordered to stand part of the Bill.

Clause 136

OFCOM’s report about researchers’ access to information

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

Again, Labour welcomes clause 136, which is a positive step towards a transparent approach to online safety, given that it requires Ofcom to publish a report about the access that independent researchers have, or could have, to matters relating to the online safety of regulated services. As my hon. Friend the Member for Worsley and Eccles South rightly outlined in an earlier sitting, Labour strongly believes that the transparency measures in the Bill do not go far enough.

Independent researchers already play a vital role in regulating online safety. Indeed, there are far too many to list, but many have supported me, and I am sure the Minister, in our research on the Bill. That is why we have tabled a number of amendments on this point, as we sincerely feel there is more work to be done. I know the Minister says he understands and is taking on board our comments, but thus far we have seen little movement on transparency.

[Chris Philp]

In this clause we are specifically talking about access to information for researchers. Obviously, the transparency matters were covered in clauses 64 and 135. There is consensus across both parties that access to information for bona fide academic researchers is important. The clause lays out a path to take us in the direction of providing that access by requiring Ofcom to produce a report. We debated the matter earlier. The hon. Member for Worsley and Eccles South—I hope I got the pronunciation right this time—

[Barbara Keeley (Worsley and Eccles South) (Lab)]

You did.

[Chris Philp]

The hon. Lady made some points about the matter in an earlier sitting, as the shadow Minister just said. It is an area we are giving some careful thought to, because it is important that it is properly academically researched. Although Ofcom is being well resourced, as we have discussed, with lots of money and the ability to levy fees, we understand that it does not have a monopoly on wisdom—as good a regulator as it is. It may well be that a number of academics could add a great deal to the debate by looking at some of the material held inside social media firms. The Government recognise the importance of the matter, and some thought is being given to these questions, but at least we can agree that clause 136 as drafted sets out a path that leads us in this important direction.

Question put and agreed to.

Clause 136 accordingly ordered to stand part of the Bill.

Clause 137

OFCOM’s reports

[Alex Davies-Jones]

Briefly, before I hand over to my hon. Friend the Member for Worsley and Eccles South, I should say that Labour welcomes clause 137, which gives Ofcom a discretionary power to publish reports about certain online safety measures and matters. Clearly, it is important to give Ofcom the power to redact or exclude confidential matters where needs be, and I hope that there will be a certain level of common sense and public awareness, should information of this nature be excluded. As I have previously mentioned—I sound a bit like a broken record—Labour echoes the calls for more transparency, which my hon. Friend the Member for Batley and Spen will come on to in her new clause. However, broadly, we support this important clause.

I would like to press the Minister briefly on how exactly the exclusion of material from Ofcom reports will work in practice. Can he outline any specific contexts or examples, beyond commercial sensitivity and perhaps matters of national security, where he can envision this power being used?

[Chris Philp]

I welcome the shadow Minister’s support for the clause, once again. The clause provides Ofcom with the power to publish relevant reports about online safety matters to keep users, the public and Parliament well informed. Again, clearly, it is up to Ofcom to decide how it publishes those reports; we will not compel it.

On the question about confidential material that might be withheld, the relevant language in clause 137 looks, to me, to precisely echo the language we saw previously in clause—where was it? Anyway, we have come across this in a previous clause. When it comes to publishing material that can be excluded, the language is just the same.

I would like to make it clear that, while, obviously, this decision is a matter for Ofcom, I would expect that exclusion to be used on a pretty rare basis. Obviously, one would expect matters that are acutely commercially sensitive to be excluded—or redacted—to address that. If there was very sensitive intellectual property, where it would prejudice a company’s commercial interest to have all of that intellectual property exposed, I would expect Ofcom to exercise the exclusion or at least redact what it publishes.

However, because transparency is so important—it is a point that the Committee has made repeatedly—I would expect these exclusions to be used sparingly, and only where absolutely necessary to deliver issues such as the commercial confidentiality or IP protection. Then, it should be used to the minimum extent necessary, because I think that this Committee thinks, and Parliament thinks, that the disclosure around these reports and the reports about breaches—mentioned in the clause I was trying to reach for previously, which was clause 128(4)(b) and (5)(b); perhaps Hansard would be kind enough to clarify that point to make me look slightly more articulate than I in fact am—should be used only very carefully and very rarely. The Committee should be clear on that, and that the bias, as it were—the assumption—should be on the side of disclosure rather than withholding information.

Question put and agreed to.

Clause 137 accordingly ordered to stand part of the Bill.

Clause 138

Appeals against OFCOM decisions relating to the register under section 81

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this, it will be convenient to consider clause 139 stand part.

[Barbara Keeley]

Good morning, Ms Rees. It is a pleasure to serve on the Committee with you in the Chair. Clause 138 allows companies to make appeals against Ofcom’s decisions regarding the categorisation of services within categories 1, 2A or 2B.

We have argued, many times, that we believe the Government’s size-based approach to categorisation is flawed. Our preference for an approach based on risk is backed up by the views of multiple stakeholders and the Joint Committee. It was encouraging to hear last week of the Minister’s intention to look again at the issues of categorisation, and I hope we will see movement on that on Report.

Clause 138 sets out that where a regulated provider has filed an appeal, they are exempt from carrying out the duties in the Bill that normally apply to services designated as category 1, 2A or 2B. That is concerning, given that there is no timeframe in which the appeals process must be concluded.

While the right to appeal is important, it is feasible that many platforms will raise appeals about their categorisation to delay the start of their duties under the Bill. I understand that the platforms will still have to comply with the duties that apply to all regulated services, but for a service that has been classified by Ofcom as high risk, it is potentially dangerous that none of the risk assessments on measures to assess harm will be completed while the appeal is taking place. Does the Minister agree that the appeals process must be concluded as quickly as possible to minimise the risk? Will he consider putting a timeframe on that?

Clause 139 allows for appeals against decisions by Ofcom to issue notices about dealing with terrorism and child sexual abuse material, as well as a confirmation decision or a penalty notice. As I have said, in general the right to appeal is important. However, would an appeals system work if, for example, a company were appealing to a notice under clause 103? In what circumstances does the Minister imagine that a platform would appeal a notice by Ofcom requiring the platform to use accredited technology to identify child sexual abuse content and swiftly take down that content? It is vital that appeals processes are concluded as rapidly as possible, so that we do not risk people being exposed to harmful or dangerous content.

[Chris Philp]

The shadow Minister has set out the purpose of the clauses, which provide for, in clause 138 appeal rights for decisions relating to registration under clause 81, and in clause 139 appeals against Ofcom notices.

I agree that it is important that judicial decisions in this area get made quickly. I note that the appeals are directly to the relevant upper tribunal, which is a higher tier of the tribunal system and tends to be a little less congested than the first-tier tribunal, which often gets used for some first-instance matters. I hope that appeals going to the upper tribunal, directly to that more senior level, provides some comfort.

On putting in a time limit, the general principle is that matters concerning listing are reserved to the judiciary. I recall from my time as a Minister in the Ministry of Justice, that the judiciary guards its independence fiercely. Whether it is the Senior President of Tribunals or the Lord Chief Justice, they consider listing matters to be the preserve of the judiciary, not the Executive or the legislature. Compelling the judiciary to hear a case in a certain time might well be considered to infringe on such principles.

We can agree, however—I hope the people making those listing decisions hear that we believe, that Parliament believes—that it is important to do this quickly, in particular where there is a risk of harm to individuals. Where there is risk to individuals, especially children, but more widely as well, those cases should be heard very expeditiously indeed.

The hon. Member for Worsley and Eccles South also asked about the basis on which appeals might be made and decided. I think that is made fairly clear. For example, clause 139(3) makes it clear that, in deciding an appeal, the upper tribunal will use the same principles as would be applied by the High Court to an application for judicial review—so, standard JR terms—which in the context of notices served or decisions made under clause 103 might include whether the power had been exercised in conformity with statute. If the power were exercised or purported to be exercised in a manner not authorised by statute, that would be one grounds for appeal, or if a decision were considered so grossly unreasonable that no reasonable decision maker could make it, that might be a grounds for appeal as well.

I caution the Committee, however: I am not a lawyer and my interpretation of judicial review principles should not be taken as definitive. Lawyers will advise their clients when they come to apply the clause in practice and they will not take my words in Committee as definitive when it comes to determining “standard judicial review principles”—those are well established in law, regardless of my words just now.

[Barbara Keeley]

There is a concern that platforms might raise appeals about their categorisation in order to delay the start of their duties under the Bill. How would the Minister act if that happened—if a large number of appeals were pending and the duties under the Bill therefore did not commence?

[Chris Philp]

Clearly, resourcing of the upper tribunal is a matter decided jointly by the Lord Chancellor and the Secretary of State for Justice, in consultation with the Lord Chief Justice, and, in this case, the Senior President of Tribunals. Parliament would expect the resourcing of that part of the upper tribunal to be such that cases could be heard in an expedited matter. Particularly where cases concern the safety of the public—and particularly of children—we expect that to be done as quickly as it can.

Question put and agreed to.

Clause 138 accordingly ordered to stand part of the Bill.

Clause 139 ordered to stand part of the Bill.

Clause 140

Power to make super-complaints

[Kirsty Blackman]

I beg to move amendment 143, in clause 140, page 121, line 1, after “services” insert “, consumers”.

--- Later in debate ---

[Barbara Keeley]

The Bill currently specifies that super-complaints can be made back to Ofcom by bodies representing users or members of the public. The addition of consumer representatives through the amendments is important. Consumer representatives are a key source of information about harms to users of online services, which are widespread, and would be regulated by this legislation. We support the amendments, which would include consumers on the list as an entity that is eligible to make super-complaints.

[Chris Philp]

Clearly, we want the super-complaint function to be as effective as possible and for groups of relevant people, users or members of the public to be able to be represented by an eligible entity to raise super-complaints. I believe we are all on the same page in wanting to do that. If I am honest, I am a little confused as to what the addition of the term “consumers” will add. The term “users” is defined quite widely, via clause 140(6), which then refers to clause 181, where, as debated previously, a “user” is defined widely to include anyone using a service, whether registered or not. So if somebody stumbles across a website, they count as a user, but the definition being used in clause 140 about bringing super-complaints also includes “members of the public”—that is, regular citizens. Even if they are not a user of that particular service, they could still be represented in bringing a complaint.

Given that, by definition, “users” and “members of the public” already cover everybody in the United Kingdom, I am not quite sure what the addition of the term “consumers” adds. By definition, consumers are a subset of the group “users” or “members of the public”. It follows that in seeking to become an eligible entity, no eligible entity will purport to act for everybody in the United Kingdom; they will always be seeking to define some kind of subset of people. That might be children, people with a particular vulnerability or, indeed, consumers, who are one such subset of “members of the public” or “users”. I do not honestly understand what the addition of the word “consumers” adds here when everything is covered already.

[Kirsty Blackman]

Will the Minister explicitly say that he thinks that an eligible entity, acting on behalf of consumers, could, if it fulfils the other criteria, bring a super-complaint?

--- Later in debate ---

[Chris Philp]

Yes, definitely. That is the idea of an eligible entity, which could seek to represent a particular demographic, such as children or people from a particular marginalised group, or it could represent people who have a particular interest, which would potentially include consumers. So I can confirm that that is the intention behind the drafting of the Bill. Having offered that clarification and made clear that the definition is already as wide as it conceivably can be—we cannot get wider than “members of the public”—I ask the hon. Member for Aberdeen North to consider withdrawing the amendments, particularly as there are so many. It will take a long time to vote on them.

[Kirsty Blackman]

I thank the Minister for the clarification. Given that he has explicitly said that he expects that groups acting on behalf of consumers could, if they fulfil the other criteria, be considered as eligible entities for making super-complaints, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 66, in clause 140, page 121, line 8, at end insert—

“(d) causing harm to any human or animal.”

This amendment ensures groups are able to make complaints regarding animal abuse videos.—(Alex Davies-Jones.)

--- Later in debate ---

There must be no loopholes in the complaints procedures, including as regards holding individual services and providers to account. Amendment 77 both strengthens and simplifies the super-complaint provisions, and we support it.

[Chris Philp]

I think the Committee, and the House, are pretty unanimous in agreeing that the power to make super-complaints is important. As we have discussed, there are all kinds of groups, such as children, under-represented groups and consumers, that would benefit from being represented where systemic issues are not being addressed and that Ofcom may have somehow overlooked or missed in the discharge of its enforcement powers.

I would observe in passing that one of the bases on which super-complaints can be made—this may be of interest to my hon. Friend the Member for Don Valley—is where there is a material risk under clause 140(1)(b) of

“significantly adversely affecting the right to freedom of expression within the law of users of the services or members of the public”.

That clause is another place in the Bill where freedom of expression is expressly picked out and supported. If freedom of expression is ever threatened in a way that we have not anticipated and that the Bill does not provide for, there is a particular power here for a particular free speech group, such as the Free Speech Union, to make a super-complaint. I hope that my hon. Friend finds the fact that freedom of expression is expressly laid out there reassuring.

Let me now speak to the substance of amendment 77, tabled by the hon. Member for Aberdeen North. It is important to first keep in mind the purpose of the super-complaints, which, as I said a moment ago, is to provide a basis for raising issues of widespread and systemic importance. That is the reason for some of the criteria in sections (1)(a), (b) and (c), and why we have subsection (2)—because we want to ensure that super-complaints are raised only if they are of a very large scale or have a profound impact on freedom of speech or some other matter of particular importance. That is why the tests, hurdles and thresholds set out in clause 140(2) have to be met.

If we were to remove subsection (2), as amendment 77 seeks to, that would significantly lower the threshold. We would end up having super-complaints that were almost individual in nature. We set out previously why we think an ombudsman-type system or having super-complaints used for near-individual matters would not be appropriate. That is why the clause is there, and I think it is reasonable that it is.

The hon. Lady asked a couple of questions about how this arrangement might operate in practice. She asked whether a company such Facebook would be caught if it alone were doing something inappropriate. The answer is categorically yes, because the condition in clause 140(2)(b)—

“impacts on a particularly large number of users”,

which would be a large percentage of Facebook’s users,

“or members of the public”—

would be met. Facebook and—I would argue—any category 1 company would, by definition, be affecting large numbers of people. The very definition of category 1 includes the concept of reach—the number of people being affected. That means that, axiomatically, clause 140(2)(b) would be met by any category 1 company.

The hon. Lady also raised the question of Facebook, for a period of time in Europe, unilaterally ceasing to scan for child sexual exploitation and abuse images, which, as mentioned, led to huge numbers of child sex abuse images and, consequently, huge numbers of paedophiles not being detected. She asks how these things would be handled under the clause if somebody wanted to raise a super-complaint about that. Hopefully, Ofcom would stop them happening in the first place, but if it did not the super-complaint redress mechanism would be the right one. These things would categorically be caught by clause 140(2)(a), because they are clearly of particular importance.

In any reasonable interpretation of the words, the test of “particular importance” is manifestly met when it comes to stopping child sexual exploitation and abuse and the detection of those images. That example would categorically qualify under the clause, and a super-complaint could, if necessary, be brought. I hope it would never be necessary, because that is the kind of thing I would expect Ofcom to catch.

Having talked through the examples from the hon. Lady, I hope I have illustrated how the clause will ensure that either large-scale issues affecting large numbers of people or issues that are particularly serious will still qualify for super-complaint status with subsection (2) left in the Bill. Given those assurances, I urge the hon. Member to consider withdrawing her amendment.

[Kirsty Blackman]

I welcome the Minister’s fairly explicit explanation that he believes that every category 1 company would be in scope, even if there was a complaint against one single provider. I would like to push the amendment to a vote on the basis of the comments I made earlier and the fact that each of these platforms is different. We have heard concerns about, for example, Facebook groups being interested in celebrating eight-year-olds’ birthdays. We have heard about the amount of porn on Twitter, which Facebook does not have in the same way. We have heard about the kind of algorithmic stuff that takes people down a certain path on TikTok. We have heard all these concerns, but they are all specific to that one provider. They are not a generic complaint that could be brought toward a group of providers.

[Chris Philp]

Would the hon. Lady not agree that in all those examples—including TikTok and leading people down dark paths—the conditions in subsection (2) would be met? The examples she has just referred to are, I would say, certainly matters of particular importance. Because the platforms she mentions are big in scale, they would also meet the test of scale in paragraph (b). In fact, only one of the tests has to be met—it is one or the other. In all the examples she has just given, not just one test—paragraph (a) or (b)— would be met, but both. So all the issues she has just raised would make a super-complaint eligible to be made.

[Kirsty Blackman]

I am glad the Minister confirms that he expects that that would be the case. I am clearer now that he has explained it, but on my reading of the clause, the definitions of “particular importance” or

“a particularly large number of users…or members of the public”

are not clear. I wanted to ensure that this was put on the record. While I do welcome the Minister’s clarification, I would like to push amendment 77 to a vote.

Question put, That the amendment be made.

Online Safety Bill (Twelfth sitting)

Chris Philp Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

[Kirsty Blackman (Aberdeen North) (SNP)]

I have a few questions, concerns and suggestions relating to these clauses. I think it was the hon. Member for Don Valley who asked me last week about the reports to the National Crime Agency and how that would work—about how, if a human was not checking those things, there would be an assurance that proper reports were being made, and that scanning was not happening and reports were not being made when images were totally legal and there was no problem with them. [Interruption.] I thought it was the hon. Member for Don Valley, although it may not have been. Apologies—it was a Conservative Member. I am sorry for misnaming the hon. Member.

The hon. Member for Pontypridd made a point about the high level of accuracy of the technologies. That should give everybody a level of reassurance that the reports that are and should be made to the National Crime Agency on child sexual abuse images will be made on a highly accurate basis, rather than a potentially inaccurate one. Actually, some computer technology—particularly for scanning for images, rather than text—is more accurate than human beings. I am pleased to hear those particular statistics.

Queries have been raised on this matter by external organisations—I am particularly thinking about the NSPCC, which we spoke about earlier. The Minister has thankfully given a number of significant reassurances about the ability to proactively scan. External organisations such as the NSPCC are still concerned that there is not enough on the face of the Bill about proactive scanning and ensuring that the current level of proactive scanning is able—or required—to be replicated when the Bill comes into action.

During an exchange in an earlier Committee sitting, the Minister gave a commitment—I am afraid I do not have the quote—to being open to looking at amending clause 103. I am slightly disappointed that there are no Government amendments, but I understand that there has been only a fairly short period; I am far less disappointed than I was previously, when the Minister had much more time to consider the actions he might have been willing to take.

The suggestion I received from the NSPCC is about the gap in the Bill regarding the ability of Ofcom to take action. These clauses allow Ofcom to take action against individual providers about which it has concerns; those providers will have to undertake duties set out by Ofcom. The NSPCC suggests that there could be a risk register, or that a notice could be served on a number of companies at one time, rather than Ofcom simply having to pick one company, or to repeatedly pick single companies and serve notices on them. Clause 83 outlines a register of risk profiles that must be created by Ofcom. It could therefore serve notice on all the companies that fall within a certain risk profile or all the providers that have common functionalities.

If there were a new, emerging concern, that would make sense. Rather than Ofcom having to go through the individual process with all the individual providers when it knows that there is common functionality—because of the risk assessments that have been done and Ofcom’s oversight of the different providers—it could serve notice on all of them in one go. It could not then accidentally miss one out and allow people to move to a different platform that had not been mentioned. I appreciate the conversation we had around this issue earlier, and the opportunity to provide context in relation to the NSPCC’s suggestions, but it would be great if the Minister would be willing to consider them.

I have another question, to which I think the Minister will be able to reply in the affirmative, which is on the uses of the technology as it evolves. We spoke about that in an earlier meeting. The technology that we have may not be what we use in the future to scan for terrorist-related activity or child sexual abuse material. It is important that the Bill adequately covers future conditions. I think that it does, but will the Minister confirm that, as technology advances and changes, these clauses will adequately capture the scanning technologies that are required, and any updates in the way in which platforms work and we interact with each other on the internet?

I have fewer concerns about future-proofing with regard to these provisions, because I genuinely think they cover future conditions, but it would be incredibly helpful and provide me with a bit of reassurance if the Minister could confirm that. I very much look forward to hearing his comments on clause 103.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

Let me start by addressing some questions raised by hon. Members, beginning with the last point made by the hon. Member for Aberdeen North. She sought reconfirmation that the Bill will keep up with future developments in accredited technology that are not currently contemplated. The answer to her question can be found in clause 105(9), in which the definition of accredited technology is clearly set out, as technology that is

“accredited (by OFCOM or another person appointed by OFCOM) as meeting minimum standards of accuracy”.

That is not a one-off determination; it is a determination, or an accreditation, that can happen from time to time, periodically or at any point in the future. As and when new technologies emerge that meet the minimum standards of accuracy, they can be accredited, and the power in clause 103 can be used to compel platforms to use those technologies. I hope that provides the reassurance that the hon. Member was quite rightly asking for.

The shadow Minister, the hon. Member for Pontypridd, asked a related question about the process for publishing those minimum standards. The process is set out in clause 105(10), which says that Ofcom will give advice to the Secretary of State on the appropriate minimum standards, and the minimum standards will then be

“approved…by the Secretary of State, following advice from OFCOM.”

We are currently working with Ofcom to finalise the process for setting those standards, which of course will need to take a wide range of factors into account.

Let me turn to the substantive clauses. Clause 103 is extremely important, because as we heard in the evidence sessions and as Members of the Committee have said, scanning messages using technology such as hash matching, to which the shadow Minister referred, is an extremely powerful way of detecting CSEA content and providing information for law enforcement agencies to arrest suspected paedophiles. I think it was in the European Union that Meta—particularly Facebook and Facebook Messenger—stopped using this scanner for a short period time due to misplaced concerns about privacy laws, and the number of referrals of CSEA images and the number of potential paedophiles who were referred to law enforcement dropped dramatically.

A point that the hon. Member for Aberdeen North and I have discussed previously is that it would be completely unacceptable if a situation arose whereby these messages—I am thinking particularly about Facebook Messenger—did not get scanned for CSEA content in a way that they do get scanned today. When it comes to preventing child sexual exploitation and abuse, in my view there is no scope for compromise or ambiguity. That scanning is happening at the moment; it is protecting children on a very large scale and detecting paedophiles on quite a large scale. In my view, under no circumstances should that scanning be allowed to stop. That is the motivation behind clause 103, which provides Ofcom with the power to make directions to require the use of accredited technology.

As the hon. Member for Aberdeen North signalled in her remarks, given the importance of this issue the Government are of course open to thinking about ways in which the Bill can be strengthened if necessary, because we do not want to leave any loopholes. I urge any social media firms watching our proceedings never to take any steps that degrade or reduce the ability to scan for CSEA content. I thank the hon. Member for sending through the note from the NSPCC, which I have received and will look at internally.

--- Later in debate ---

[Kirsty Blackman]

I echo the sentiments that have been expressed by the shadow Minister, and thank her and her colleagues for tabling this amendment and giving voice to the numerous organisations that have been in touch with us about this matter. The Scottish National party is more than happy to support the amendment, which would make the Bill stronger and better, and would better enable Ofcom to take action when necessary.

[Chris Philp]

I understand the spirit behind these amendments, focusing on the word “presence” rather than “prevalence” in various places. It is worth keeping in mind that throughout the Bill we are requiring companies to implement proportionate systems and processes to protect their users from harm. Even in the case of the most harmful illegal content, we are not placing the duty on companies to remove every single piece of illegal content that has ever appeared online, because that is requesting the impossible. We are asking them to take reasonable and proportionate steps to create systems and processes to do so. It is important to frame the legally binding duties in that way that makes them realistically achievable.

As the shadow Minister said, amendments 35, 36, 39 and 40 would replace the word “prevalence” with “presence”. That would change Ofcom’s duty to enforce not just against content that was present in significant numbers—prevalent—but against a single instance, which would be enough to engage the clause.

We mutually understand the intention behind these amendments, but we think the significant powers to compel companies to adopt certain technology contained in section 103 should be engaged only where there is a reasonable level of risk. For example, if a single piece of content was present on a platform, if may not be reasonable or proportionate to force the company to adopt certain new technologies, where indeed they do not do so at the moment. The use of “prevalence” ensures that the powers are used where necessary.

It is clear—there is no debate—that in the circumstances where scanning technology is currently used, which includes on Facebook Messenger, there is enormous prevalence of material. To elaborate on a point I made in a previous discussion, anything that stops that detection happening would be unacceptable and, in the Government’s view, it would not be reasonable to lose the ability to detect huge numbers of images in the service of implementing encryption, because there is nothing more important than scanning against child sexual exploitation images.

However, we think adopting the amendment and replacing the word “prevalence” with “presence” would create an extremely sensitive trigger that would be engaged on almost every site, even tiny ones or where there was no significant risk, because a single example would be enough to trigger the amendment, as drafted. Although I understand the spirit of the amendment, it moves away from the concepts of proportionality and reasonableness in the systems and processes that the Bill seeks to deliver.

Amendment 37 seeks to widen the criteria that Ofcom must consider when deciding to use section 103 powers. It is important to ensure that Ofcom considers a wide range of factors, taking into account the harm occurring, but clause 104(2)(f) already requires Ofcom to consider

“the level of risk of harm to individuals in the United Kingdom presented by relevant content, and the severity of that harm”.

Therefore, the Bill already contains provision requiring Ofcom to take those matters into account, as it should, but the shadow Minister is right to draw attention to the issue.

Finally, amendment 38 seeks to amend clause 116 to require Ofcom to consider the risk of harm posed by individuals in the United Kingdom, in relation to adults and children in the UK or elsewhere, through the production, publication and dissemination of illegal content. In deciding whether to make a confirmation decision requiring the use of technology, it is important that Ofcom considers a wide range of factors. However, clause 116(6)(e) already proposes to require Ofcom to consider, in particular, the risk and severity of harm to individuals in the UK. That is clearly already in the Bill.

I hope that this analysis provides a basis for the shadow Minister to accept that the Bill, in this area, functions as required. I gently request that she withdraw her amendment.

[Alex Davies-Jones]

I welcome the Minister’s comments, but if we truly want the Bill to be world-leading, as the Government and the Minister insist it will be, and if it is truly to keep children safe, surely one image of child sexual exploitation and abuse on a platform is one too many. We do not need to consider prevalence over presence. I do not buy that argument. I believe we need to do all we can to make this Bill as strong as possible. I believe the amendments would do that.

Question put, That the amendment be made.

--- Later in debate ---

Division 34

Ayes: 3

---

Labour: 2
Scottish National Party: 1

Noes: 5

---

Conservative: 5

[Chris Philp]

I beg to move amendment 6, in clause 104, page 89, line 14, after “(2)(f)” insert “, (g)”

This amendment ensures that subsection (3) of this clause (which clarifies what “relevant content” in particular paragraphs of subsection (2) refers to in relation to different kinds of services) applies to the reference to “relevant content” in subsection (2)(g) of this clause.

This technical amendment will ensure that the same definition of “relevant content” used in subsection (2) is used in subsection (3).

Amendment 6 agreed to.

Clause 104, as amended, ordered to stand part of the Bill.

Clauses 105 and 106 ordered to stand part of the Bill.

Clause 107

OFCOM’s guidance about functions under this Chapter

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Kirsty Blackman]

I have a quick question for the Minister about the timelines in relation to the guidance and the commitment that Ofcom gave to producing a road map before this coming summer. When is that guidance likely to be produced? Does that road map relate to the guidance in this clause, as well as the guidance in other clauses? If the Minister does not know the answer, I have no problem with receiving an answer at a later time. Does the road map include this guidance as well as other guidance that Ofcom may or may not be publishing at some point in the future?

[Chris Philp]

I welcome the cross-party support for the provisions set out in these important clauses. Clause 107 points out the requirement for Ofcom to publish guidance, which is extremely important. Clause 108 makes sure that it publishes an annual report. Clause 109 covers the interpretations.

The hon. Member for Aberdeen North asked the only question, about the contents of the Ofcom road map, which in evidence it committed to publishing before the summer. I cannot entirely speak for Ofcom, which is of course an independent body. In order to avoid me giving the Committee misleading information, the best thing is for officials at the Department for Digital, Culture, Media and Sport to liaise with Ofcom and ascertain what the exact contents of the road map will be, and we can report that back to the Committee by letter.

It will be fair to say that the Committee’s feeling—I invite hon. Members to intervene if I have got this wrong—is that the road map should be as comprehensive as possible. Ideally, it would lay out the intended plan to cover all the activities that Ofcom would have to undertake in order to make the Bill operational, and the more detail there is, and the more comprehensive the road map can be, the happier the Committee will be.

Officials will take that away, discuss it with Ofcom and we can revert with fuller information. Given that the timetable was to publish the road map prior to the summer, I hope that we are not going to have to wait very long before we see it. If Ofcom is not preparing it now, it will hopefully hear this discussion and, if necessary, expand the scope of the road map a little bit accordingly.

Question put and agreed to.

Clause 107 accordingly ordered to stand part of the Bill

Clauses 108 and 109 ordered to stand part of the Bill.

Clause 110

Provisional notice of contravention

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

I will be brief. Labour welcomes clause 110, which addresses the process of starting enforcement. We support the process, particularly the point that ensures that Ofcom must first issue a “provisional notice of contravention” to an entity before it reaches its final decision.

The clause ultimately ensures that the process for Ofcom issuing a provisional notice of contravention can take place only after a full explanation and deadline has been provided for those involved. Thankfully, this process means that Ofcom can reach a decision only after allowing the recipient a fair opportunity to make relevant representations too. The process must be fair for all involved and that is why we welcome the provisions outlined in the clause.

[Dame Maria Miller (Basingstoke) (Con)]

I hope that I am speaking at the right stage of the Bill, and I promise not to intervene at any further stages where this argument could be put forward.

Much of the meat of the Bill is within chapter 6. It establishes what many have called the “polluter pays” principle, where an organisation that contravenes can then be fined—a very important part of the Bill. We are talking about how Ofcom is going to be able to make the provisions that we have set out work in practice. A regulated organisation that fails to stop harm contravenes and will be fined, and fined heavily.

I speak at this point in the debate with slight trepidation, because these issues are also covered in clause 117 and schedule 12, but it is just as relevant to debate the point at this stage. It is difficult to understand where in the Bill the Government set out how the penalties that they can levy as a result of the powers under this clause will be used. Yes, they will be a huge deterrent, and that is good in its own right and important, but surely the real opportunity is to make the person who does the harm pay for righting the wrong that they have created.

That is not a new concept. Indeed, it is one of the objectives that the Government set out in the intentions behind their approach to the draft victims Bill. It is a concept used in the Investigatory Powers Act 2016. It is the concept behind the victims surcharge. So how does this Bill make those who cause harm take greater responsibility for the cost of supporting victims to recover from what they have suffered? That is exactly what the Justice Ministers set out as being so important in their approach to victims. In the Bill, that is not clear to me.

At clause 70, the Minister helpfully set out that there was absolutely no intention for Ofcom to have a role in supporting victims individually. In reply to the point that I made at that stage, he said that the victims Bill would address some of the issues—I am sure that he did not say all the issues, but some of them at least. I do not believe that it will. The victims Bill establishes a code and a duty to provide victim support, but it makes absolutely no reference to how financial penalties on those who cause harm—as set out so clearly in this Bill—will be used to support victims. How will they support victims’ organisations, which do so much to help in particular those who do not end up in court, before a judge, because what they have suffered does not warrant that sort of intervention?

I believe that there is a gap. We heard that in our evidence session, including from Ofcom itself, which identified the need for law enforcement, victim-support organisations and platforms themselves to find what the witnesses described as an effective way for the new “ecosystem” to work. Victim-support organisations went further and argued strongly for the need for victims’ voices to be heard independently. The NSPCC in particular made a very powerful argument for children’s voices needing to be heard and for having independent advocacy. There would be a significant issue with trust levels if we were to rely solely on the platforms themselves to provide such victim support.

There are a couple of other reasons why we need the Government to tease the issue out. We are talking about the most significant culture change imaginable for the online platforms to go through. There will be a lot of good will, I am sure, to achieve that culture change, but there will also be problems along the way. Again referring back to our evidence sessions, the charity Refuge said that reporting systems are “not up to scratch” currently. There is a lot of room for change. We know that Revenge Porn Helpline has seen a continual increase in demand for its services in support of victims, in particular following the pandemic. It also finds revenue and funding a little hand to mouth.

Victim support organisations will have a crucial role in assisting Ofcom with the elements outlined in chapter 6, of which clause 110 is the start, in terms of monitoring the reality for users of how the platforms are performing. The “polluter pays” principle is not working quite as the Government might want it to in the Bill. My solution is for the Minister to consider talking to his colleagues in the Treasury about whether this circle could be squared—whether we could complete the circle—by having some sort of hypothecation of the financial penalties, so that some of the huge amount that will be levied in penalties can be put into a fund that can be used directly to support victims’ organisations. I know that that requires the Department for Digital, Culture, Media and Sport and the Ministry of Justice to work together, but my hon. Friend is incredibly good at collaborative working, and I am sure he will be able to achieve that.

This is not an easy thing. I know that the Treasury would not welcome Committees such as this deciding how financial penalties are to be used, but this is not typical legislation. We are talking about enormous amounts of money and enormous numbers of victims, as the Minister himself has set out when we have tried to debate some of these issues. He could perhaps undertake to raise this issue directly with the Treasury, and perhaps get it to look at how much money is currently going to organisations to support victims of online abuse and online fraud—the list goes on—and to see whether we will have to take a different approach to ensure that the victims we are now recognising get the support he and his ministerial colleagues want to see.

[Chris Philp]

First, on the substance of the clause, as the shadow Minister said, the process of providing a provisional notice of contravention gives the subject company a fair chance to respond and put its case, before the full enforcement powers are brought down on its head, and that is of course only reasonable, given how strong and severe these powers are. I am glad there is once again agreement between the two parties.

I would like to turn now to the points raised by my right hon. Friend the Member for Basingstoke, who, as ever, has made a very thoughtful contribution to our proceedings. Let me start by answering her question as to what the Bill says about where fines that are levied will go. We can discover the answer to that question in paragraph 8 of schedule 12, which appears at the bottom of page 206 and the top of page 207—in the unlikely event that Members had not memorised that. If they look at that provision, they will see that the Bill as drafted provides that fines that are levied under the powers provided in it and that are paid to Ofcom get paid over to the Consolidated Fund, which is essentially general Treasury resources. That is where the money goes under the Bill as drafted.

My right hon. Friend asks whether some of the funds could be, essentially, hypothecated and diverted directly to pay victims. At the moment, the Government are dealing with victims, or pay for services supporting victims, not just via legislation—the victims Bill—but via expenditure that, I think, is managed by the Ministry of Justice to support victims and organisations working with victims in a number of ways. I believe that the amount earmarked for this financial year is in excess of £300 million, which is funded just via the general spending review. That is the situation as it is today.

I am happy to ask colleagues in Government the question that my right hon. Friend raises. It is really a matter for the Treasury, so I am happy to pass her idea on to it. But I anticipate a couple of responses coming from the Treasury in return. I would anticipate it first saying that allocating money to a particular purpose, including victims, is something that it likes to do via spending reviews, where it can balance all the demands on Government revenue, viewed in the round.

Secondly, it might say that the fine income is very uncertain; we do not know what it will be. One year it could be nothing; the next year it could be billions and billions of pounds. It depends on the behaviour of these social media firms. In fact, if the Bill does its job and they comply with the duties as we want and expect them to, the fines could be zero, because the firms do what they are supposed to. Conversely, if they misbehave, as they have been doing until now, the fines could be enormous. If we rely on hypothecation of these fines as a source for funding victim services, it might be that, in a particular year, we discover that there is no income, because no fines have been levied.

--- Later in debate ---

[Alex Davies-Jones]

I agree 100%. The testimony of Frances Haugen, the Facebook whistleblower, highlighted the fact that expert researchers and academics will need to examine the data and look at what is happening behind social media platforms if we are to ensure that the Bill is truly fit for purpose and world leading. That process should be carried out as quickly as possible, and Ofcom must also be encouraged to publish guidance on how access to data will work.

Ultimately, the amendments make a simple point: civil society and researchers should be able to access data, so why will the Minister not let them? The Bill should empower independently verified researchers and civil society to request tech companies’ data. Ofcom should be required to publish guidance as soon as possible —within months, not years—on how data may be accessed. That safety check would hold companies to account and make the internet a safer and less divisive space for everyone.

The process would not be hard or commercially ruinous, as the platforms claim. The EU has already implemented it through its Digital Services Act, which opens up the secrets of tech companies’ data to Governments, academia and civil society in order to protect internet users. If we do not have that data, researchers based in the EU will be ahead of those in the UK. Without more insight to enable policymaking, quality research and harm analysis, regulatory intervention in the UK will stagnate. What is more, without such data, we will not know Instagram’s true impact on teen mental health, nor the reality of violence against women and girls online or the risks to our national security.

We propose amending the Bill to accelerate data sharing provisions while mandating Ofcom to produce guidance on how civil society and researchers can access data, not just on whether they should. As I said, that should happen within months, not years. The provisions should be followed by a code of practice, as outlined in the amendment, to ensure that platforms do not duck and dive in their adherence to transparency requirements. A code of practice would help to standardise data sharing in a way that serves platforms and researchers.

The changes would mean that tech companies can no longer hide in the shadows. As Frances Haugen said of the platforms in her evidence a few weeks ago:

“The idea that they have worked in close co-operation with researchers is a farce. The only way that they are going to give us even the most basic data that we need to keep ourselves safe is if it is mandated in the Bill. We need to not wait two years after the Bill passes”.––[Official Report, Online Safety Public Bill Committee, 26 May 2022; c. 188, Q320.]

[Chris Philp]

I understand the shadow Minister’s point. We all heard from Frances Haugen about the social media firms’ well-documented reluctance—to put it politely—to open themselves up to external scrutiny. Making that happen is a shared objective. We have already discussed several times the transparency obligations enshrined in clause 64. Those will have a huge impact in ensuring that the social media firms open up a lot more and become more transparent. That will not be an option; they will be compelled to do that. Ofcom is obliged under clause 64 to publish the guidance around those transparency reports. That is all set in train already, and it will be extremely welcome.

Researchers’ access to information is covered in clause 136, which the amendments seek to amend. As the shadow Minister said, our approach is first to get Ofcom to prepare a report into how that can best be done. There are some non-trivial considerations to do with personal privacy and protecting people’s personal information, and there are questions about who counts as a valid researcher. When just talking about it casually, it might appear obvious who is or is not a valid researcher, but we will need to come up with a proper definition of “valid researcher” and what confidentiality obligations may apply to them.

[Barbara Keeley (Worsley and Eccles South) (Lab)]

This is all sorted in the health environment because of the personal data involved—there is no data more personal than health data—and a trusted and safe environment has been created for researchers to access personal data.

[Chris Philp]

This data is a little different—the two domains do not directly correspond. In the health area, there has been litigation—an artificial intelligence company is currently engaged in litigation with an NHS hospital trust about a purported breach of patient data rules—so even in that long-established area, there is uncertainty and recent, or perhaps even current, litigation.

We are asking for the report to be done to ensure that those important issues are properly thought through. Once they are, Ofcom has the power under clause 136 to lay down guidance on providing access for independent researchers to do their work.

[Kirsty Blackman]

The Minister has committed to Ofcom being fully resourced to do what it needs to do under the Bill, but he has spoken about time constraints. If Ofcom were to receive 25,000 risk assessments, for example, there simply would not be enough people to go through them. Does he agree that, in cases in which Ofcom is struggling to manage the volume of data and to do the level of assessment required, it may be helpful to augment that work with the use of independent researchers? I am not asking him to commit to that, but to consider the benefits.

[Chris Philp]

Yes, I would agree that bona fide academic independent researchers do have something to offer and to add in this area. The more we have highly intelligent, experienced and creative people looking at a particular problem or issue, the more likely we are to get a good and well-informed result. They may have perspectives that Ofcom does not. I agree that, in principle, independent researchers can add a great deal, but we need to ensure that we get that set up in a thoughtful and proper way. I understand the desire to get it done quickly, but it is important to take the time to do it not just quickly, but right. It is an area that does not exist already—at the moment, there is no concept of independent researchers getting access to the innards of social media companies’ data vaults—so we need to make sure that it is done in the right way, which is why it is structured as it is. I ask the Committee to stick with the drafting, whereby there will be a report and then Ofcom will have the power. I hope we end up in the same place—well, the same place, but a better place. The process may be slightly slower, but we may also end up in a better place for the consideration and thought that will have to be given.

[Alex Davies-Jones]

I appreciate where the Minister is coming from. It seems that he wants to back the amendment, so I am struggling to see why he will not, especially given that the DSA—the EU’s new legislation—is already doing this. We know that the current wording in the Bill is far too woolly. If providers can get away with it, they will, which is why we need to compel them, so that we are able to access this data. We need to put that on the face of the Bill. I wish that we did not have to do so, but we all wish that we did not have to have this legislation in the first place. Unless we put it in the Bill, however, the social media platforms will carry on regardless, and the internet will not be a safe place for children and adults in the UK. That is why I will push amendment 53 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Barbara Keeley]

As my hon. Friend the Member for Pontypridd has pointed out, there is little or no transparency about one of the most critical ways in which platforms tackle harms. Human moderators are on the frontline of protecting children and adults from harmful content. They must be well resourced, trained and supported in order to fulfil that function, or the success of the Bill’s aims will be severely undermined.

I find it shocking that platforms offer so little data on human moderation, either because they refuse to publish it or because they do not know it. For example, in evidence to the Home Affairs Committee, William McCants from YouTube could not give precise statistics for its moderator team after being given six days’ notice to find the figure, because many moderators were employed or operated under third-party auspices. For YouTube’s global counter-terrorism lead to be unaware of the detail of how the platform is protecting its users from illegal content is shocking, but it is not uncommon.

In evidence to this Committee, Meta’s Richard Earley was asked how many of Meta’s 40,000 human moderators were outsourced to remove illegal content and disinformation from the platform. My hon. Friend the Member for Pontypridd said:

“You do not have the figures, so you cannot tell me.”

Richard Earley replied:

“I haven’t, no, but I will be happy to let you know afterwards in our written submission.”

Today, Meta submitted its written evidence to the Committee. It included no reference to human content moderators, despite its promise.

The account that my hon. Friend gave just now shows why new clause 11 is so necessary. Meta’s representative told this Committee in evidence:

“Everyone who is involved in reviewing content at Meta goes through an extremely lengthy training process that lasts multiple weeks, covering not just our community standards in total but also the specific area they are focusing on, such as violence and incitement.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 45, Q76.]

But now we know from whistleblowers such as Daniel, whose case my hon. Friend described, that that is untrue. What is happening to Daniel and the other human moderators is deeply concerning. There are powerful examples of the devastating emotional impact that can occur because human moderators are not monitored, trained and supported.

There are risks of platforms shirking responsibility when they outsource moderation to third parties. Stakeholders have raised concerns that a regulated company could argue that an element of its service is not in the scope of the regulator because it is part of a supply chain. We will return to that issue when we debate new clause 13, which seeks to ensure enforcement of liability for supply chain failures that amount to a breach of one of the specified duties.

Platforms, in particular those supporting user-to-user generated content, employ those services from third parties. Yesterday, I met Danny Stone, the chief executive of the Antisemitism Policy Trust, who described the problem of antisemitic GIFs. Twitter would say, “We don’t supply GIFs. The responsibility is with GIPHY.” GIPHY, as part of the supply chain, would say, “We are not a user-to-user platform.” If someone searched Google for antisemitic GIFs, the results would contain multiple entries saying, “Antisemitic GIFs—get the best GIFs on GIPHY. Explore and share the best antisemitic GIFs.”

One can well imagine a scenario in which a company captured by the regulatory regime established by the Bill argues that an element of its service is not within the ambit of the regulator because it is part of a supply chain presented by, but not necessarily the responsibility of, the regulated service. The contracted element, which I have just described by reference to Twitter and GIPHY, supported by an entirely separate company, would argue that it was providing a business-to-business service that is not user-generated content but content designed and delivered at arm’s length and provided to the user-to-user service to deploy for its users.

I suggest that dealing with this issue would involve a timely, costly and unhelpful legal process during which systems were not being effectively regulated—the same may apply in relation to moderators and what my hon. Friend the Member for Pontypridd described; there are a number of lawsuits involved in Daniel’s case—and complex contract law was invoked.

We recognise in UK legislation that there are concerns and issues surrounding supply chains. Under the Bribery Act 2010, for example, a company is liable if anyone performing services for or on the company’s behalf is found culpable for specific actions. These issues on supply chain liability must be resolved if the Bill is to fulfil its aim of protecting adults and children from harm.

[Chris Philp]

May I first say a brief word about clause stand part, Sir Roger?

[The Chair]

Yes.

--- Later in debate ---

[Chris Philp]

Thank you. Clause 111 sets out and defines the “enforceable requirements” in this chapter—the duties that Ofcom is able to enforce against. Those are set out clearly in the table at subsection (2) and the requirements listed in subsection (3).

The amendment speaks to a different topic. It seeks to impose or police standards for people employed as subcontractors of the various companies that are in scope of the Bill, for example people that Facebook contracts; the shadow Minister, the hon. Member for Pontypridd, gave the example of the gentleman from Kenya she met yesterday. I understand the point she makes and I accept that there are people in those supply chains who are not well treated, who suffer PTSD and who have to do extraordinarily difficult tasks. I do not dispute at all the problems she has referenced. However, the Government do not feel that the Bill is the right place to address those issues, for a couple of reasons.

First, in relation to people who are employed in the UK, we have existing UK employment and health and safety laws. We do not want to duplicate or cut across those. I realise that they relate only to people employed in the UK, but if we passed the amendment as drafted, it would apply to people in the UK as much as it would apply to people in Kenya.

Secondly, the amendment would effectively require Ofcom to start paying regard to employment conditions in Kenya, among other places—indeed, potentially any country in the world—and it is fair to say that that sits substantially outside Ofcom’s area of expertise as a telecoms and communications regulator. That is the second reason why the amendment is problematic.

The third reason is more one of principle. The purpose of the Bill is to keep users safe online. While I understand the reasonable premise for the amendment, it seeks essentially to regulate working conditions in potentially any country in the world. I am just not sure that it is appropriate for an online safety Bill to seek to regulate global working conditions. Facebook, a US company, was referenced, but only 10% of its activity—very roughly speaking—is in the UK. The shadow Minister gave the example of Kenyan subcontractors. Compelling though her case was, I am not sure it is appropriate that UK legislation on online safety should seek to regulate the Kenyan subcontractor of a United States company.

The Government of Kenya can set their own employment regulations and President Biden’s Government can impose obligations on American companies. For us, via a UK online safety Bill, to seek to regulate working conditions in Kenya goes a long way beyond the bounds of what we are trying to do, particularly when we take into account that Ofcom is a telecommunications and communications regulator. To expect it to regulate working conditions anywhere in the world is asking quite a lot.

I accept that a real issue is being raised. There is definitely a problem, and the shadow Minister and the hon. Member for Aberdeen North are right to raise it, but for the three principal reasons that I set out, I suggest that the Bill is not the place to address these important issues.

[Alex Davies-Jones]

The Minister mentions workers in the UK. I am a proud member of the Labour party and a proud trade unionist; we have strong protections for workers in the UK. There is a reason why Facebook and some of these other platforms, which are incredibly exploitative, will not have human moderators in the UK looking at this content: because they know they would be compelled to treat them a hell of a lot better than they do the workers around the world that they are exploiting, as they do in Kenya, Dublin and the US.

To me, the amendment speaks to the heart of the Bill. This is an online safety Bill that aims to keep the most vulnerable users safe online. People around the world are looking at content that is created here in the UK and having to moderate it; we are effectively shipping our trash to other countries and other people to deal with it. That is not acceptable. We have the opportunity here to keep everybody safe from looking at this incredibly harmful content. We have a duty to protect those who are looking at content created in the UK in order to keep us safe. We cannot let those people down. The amendment and new clause 11 give us the opportunity to do that. We want to make the Bill world leading. We want the UK to stand up for those people. I urge the Minister to do the right thing and back the amendment.

[Barbara Keeley]

The Minister has not commented on the problem I raised of the contracted firm in the supply chain not being covered by the regulations under the Bill—the problem of Twitter and the GIFs, whereby the GIFs exist and are used on Twitter, but Twitter says, “We’re not responsible for them; it’s that firm over there.” That is the same thing, and new clause 11 would cover both.

[Chris Philp]

I am answering slightly off the cuff, but I think the point the hon. Lady is raising—about where some potentially offensive or illegal content is produced on one service and then propagated or made available by another—is one we debated a few days ago. I think the hon. Member for Aberdeen North raised that question, last week or possibly the week before. I cannot immediately turn to the relevant clause—it will be in our early discussions in Hansard about the beginning of the Bill—but I think the Bill makes it clear that where content is accessed through another platform, which is the example that the hon. Member for Worsley and Eccles South just gave, the platform through which the content is made available is within the scope of the Bill.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Davies-Jones]

We support clause 112, which gives Ofcom the power to issue a confirmation decision if, having followed the required process—for example, in clause 110—its final decision is that a regulated service has breached an enforceable requirement. As we know, this will set out Ofcom’s final decision and explain whether Ofcom requires the recipient of the notice to take any specific steps and/or pay a financial penalty. Labour believes that this level of scrutiny and accountability is vital to an Online Safety Bill that is truly fit for purpose, and we support clause 112 in its entirety.

We also support the principles of clause 113, which outlines the steps that a person may be required to take either to come into compliance or to remedy the breach that has been committed. Subsection (5) in particular is vital, as it outlines how Ofcom can require immediate action when the breach has involved an information duty. We hope this will be a positive step forward in ensuring true accountability of big tech companies, so we are happy to support the clause unamended.

It is right and proper that Ofcom has powers when a regulated provider has failed to carry out an illegal content or children’s risk assessment properly or at all, and when it has identified a risk of serious harm that the regulated provider is not effectively mitigating or managing. As we have repeatedly heard, risk assessments are the very backbone of the Bill, so it is right and proper that Ofcom is able to force a company to take measures to comply in the event of previously failing to act.

Children’s access assessments, which are covered by clause 115, are a crucial component of the Bill. Where Ofcom finds that a regulated provider has failed to properly carry out an assessment, it is vital that it has the power and legislative standing to force the company to do more. We also appreciate the inclusion of a three-month timeframe, which would ensure that, in the event of a provider re-doing the assessment, it would at least be completed within a specific—and small—timeframe.

While we recognise that the use of proactive technologies may come with small issues, Labour ultimately feels that clause 116 is balanced and fair, as it establishes that Ofcom may require the use of proactive technology only on content that is communicated publicly. It is fair that content in the public domain is subject to those important safety checks. It is also right that under subsection (7), Ofcom may set a requirement forcing services to review the kind of technology being used. That is a welcome step that will ensure that platforms face a level of scrutiny that has certainly been missing so far.

Labour welcomes and is pleased to support clause 117, which allows Ofcom to impose financial penalties in its confirmation decision. That is something that Labour has long called for, as we believe that financial penalties of this nature will go some way towards improving best practice in the online space and deterring bad actors more widely.

[Chris Philp]

The shadow Minister has set out the provisions in the clauses, and I am grateful for her support. In essence, clauses 112 to 117 set out the processes around confirmation decisions and make provisions to ensure that those are effective and can be operated in a reasonable and fair way. The clauses speak largely for themselves, so I am not sure that I have anything substantive to add.

Question put and agreed to.

Clause 112 accordingly ordered to stand part of the Bill.

Clauses 113 to 117 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Dean Russell.)

Online Safety Bill (Eleventh sitting)

Chris Philp Excerpts

Committee stage
Thursday 16th June 2022 Public Bill Committees

[Alex Davies-Jones (Pontypridd) (Lab)]

I beg to move amendment 127, in clause 69, page 60, line 26, after “must” insert—

“within six months of this Act being passed”.

As ever, it is a pleasure to serve under your chairship, Sir Roger. The thoughts and prayers of us all are with my hon. Friend the Member for Batley and Spen and all her friends and family.

Labour welcomes the clause, which sets out Ofcom’s duties to provide guidance to providers of internet services. It is apparent, however, that we cannot afford to kick the can down the road and delay implementation of the Bill any further than necessary. With that in mind, I urge the Minister to support the amendment, which would give Ofcom an appropriate amount of time to produce this important guidance.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

It is a pleasure, once again, to serve under your august chairmanship, Sir Roger. I associate the Government with the remarks that you and the shadow Minister made, marking the anniversary of Jo Cox’s appalling murder, which shook the entire House when it happened. She will never be forgotten.

The Government are sympathetic to the intent of the amendment, which seeks to ensure that guidance for providers on protecting children from online pornography is put in place as quickly as possible. We of course sympathise with that objective, but we feel that the Secretary of State must retain the power to determine when to bring in the provisions of part 5, including the requirement under the clause for Ofcom to produce guidance, to ensure that implementation of the framework comprehensively and effectively regulates all forms of pornography online. That is the intention of the whole House and of this Committee.

Ofcom needs appropriate time and flexibility to get the guidance exactly right. We do not want to rush it and consequently see loopholes, which pornography providers or others might seek to exploit. As discussed, we will be taking a phased approach to bringing duties under the Bill into effect. We expect prioritisation for the most serious harms as quickly as possible, and we expect the duties on illegal content to be focused on most urgently. We have already accelerated the timescales for the most serious harms by putting priority illegal content in the various schedules to the Bill.

Ofcom is working hard to prepare implementation. We are all looking forward to the implementation road map, which it has committed to produce before the summer. For those reasons, I respectfully resist the amendment.

Question put, That the amendment be made.

--- Later in debate ---

[Dame Maria Miller (Basingstoke) (Con)]

I have just a short comment on these clauses. I very much applaud the Government’s approach to the funding of Ofcom through this mechanism. Clause 75 sets out clearly that the fees payable to Ofcom under section 71 should only be

“sufficient to meet, but…not exceed the annual cost to OFCOM”.

That is important when we start to think about victim support. While clearly Ofcom will have a duty to monitor the efficacy of the mechanisms in place on social media platforms, it is not entirely clear to me from the evidence or conversations with Ofcom whether it will see it as part of its duty to ensure that other areas of victim support are financed through those fees.

It may well be that the Minister thinks it more applicable to look at this issue when we consider the clauses on fines, and I plan to come to it at that point, but it would be helpful to understand whether he sees any role for Ofcom in ensuring that there is third-party specialist support for victims of all sorts of crime, including fraud or sexual abuse.

[Chris Philp]

Let me start by associating myself with the remarks by the hon. Member for Worsley and Eccles South. We are in complete concurrence with the concept that the polluter should pay. Where there are regulatory costs caused by the behaviour of the social media firms that necessitates the Bill, it is absolutely right that those costs should fall on them and not on the general taxpayer. I absolutely agree with the principles that she outlined.

The hon. Lady raised a question about clause 70(6) and the potential exemption from the obligation to pay fees. That is a broadly drawn power, and the phrasing used is where

“OFCOM consider that an exemption…is appropriate”

and where the Secretary of State agrees. The Bill is not being prescriptive; it is intentionally providing flexibility in case there are circumstances where levying the fees might be inappropriate or, indeed, unjust. It is possible to conceive of an organisation that somehow exceeds the size threshold, but so manifestly does not need regulation that it would be unfair or unjust to levy the fees. For example, if a charity were, by some accident of chance, to fall into scope, it might qualify. But we expect social media firms to pay these bills, and I would not by any means expect the exemption to be applied routinely or regularly.

On the £88 million and the £110 million that have been referenced, the latter amount is to cover the three-year spending review period, which is the current financial year—2022-23—2023-24 and 2024-25. Of that £110 million, £88 million is allocated to Ofcom in the first two financial years; the remainder is allocated to DCMS for its work over the three-year period of the spending review. The £88 million for Ofcom runs out at the end of 2023-24.

The hon. Lady then asked whether the statutory fees in these clauses will kick in when the £88 million runs out—whether they will be available in time. The answer is yes. We expect and intend that the fees we are debating will become effective in 2024-25, so they will pick up where the £88 million finishes.

Ofcom will set the fees at a level that recoups its costs, so if the Bill becomes larger in scope, for example through amendments in the Commons or the Lords—not that I wish to encourage amendments—and the duties on Ofcom expand, we would expect the fees to be increased commensurately to cover any increased cost that our legislation imposes.

[Barbara Keeley]

Before the Minister gets past this point—I think he has reached the point of my question—the fees do not kick in for two years. The figure is £88 million, but the point I was making is that the scope of the Bill has already increased. I asked about this during the evidence session with Ofcom. Fraudulent advertising was not included before, so there are already additional powers for Ofcom that need to be funded. I was questioning whether the original estimate will be enough for those two years.

[Chris Philp]

I assume that the hon. Lady is asking about the £88 million.

[Barbara Keeley]

indicated assent.

[Chris Philp]

That covers the preparatory work rather than the actual enforcement work that will follow. For the time being, we believe that it is enough, but of course we always maintain an active dialogue with Ofcom.

Finally, there was a question from my right hon. Friend the Member for Basingstoke, who asked how victims will be supported and compensated. As she said, Ofcom will always pay attention to victims in its work, but we should make it clear that the fees we are debating in these clauses are designed to cover only Ofcom’s costs and not those of third parties. I think the costs of victim support and measures to support victims are funded separately via the Ministry of Justice, which leads in this area. I believe that a victims Bill is being prepared that will significantly enhance the protections and rights that victims have—something that I am sure all of us will support.

Question put and agreed to.

Clause 70 accordingly ordered to stand part of the Bill.

Clauses 71 to 76 ordered to stand part of the Bill.

Clause 77

General duties of OFCOM under section 3 of the Communications Act

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 78 and 79 stand part.

[Alex Davies-Jones]

We welcome clause 77, which is an important clause that seeks to amend Ofcom’s existing general duties in the Communications Act 2003. Given the prevalence of illegal harms online, as we discussed earlier in proceedings, it is essential that the Communications Act is amended to reflect the important role that Ofcom will have as a new regulator.

As the Minister knows, and as we will discuss shortly when we reach amendments to clause 80, we have significant concerns about the Government’s approach to size versus harm when categorising service providers. Clause 77(4) amends section 3 of the Communications Act by inserting new subsection (4A). New paragraph (4A)(d) outlines measures that are proportionate to

“the size or capacity of the provider”,

and to

“the level of risk of harm presented by the service in question, and the severity of the potential harm”.

We know that harm, and the potential of accessing harmful content, is what is most important in the Bill—it says it in the name—so I am keen for my thoughts on the entire categorisation process to be known early on, although I will continue to press this issue with the Minister when we debate the appropriate clause.

Labour also supports clause 78. It is vital that Ofcom will have a duty to publish its proposals on strategic priorities within a set time period, and ensuring that that statement is published is a positive step towards transparency, which has been so crucially missing for far too long.

Similarly, Labour supports clause 79, which contains a duty to carry out impact assessments. That is vital, and it must be conveyed in the all-important Communications Act.

[Chris Philp]

As the shadow Minister has set out, these clauses ensure that Ofcom’s duties under the Communications Act 2003 are updated to reflect the new duties that we are asking it to undertake—I think that is fairly clear from the clauses. On the shadow Minister’s comment about size and risk, I note her views and look forward to debating that more fully in a moment.

Question put and agreed to.

Clause 77 accordingly ordered to stand part of the Bill.

Clauses 78 and 79 ordered to stand part of the Bill.

Clause 80

Meaning of threshold conditions etc

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 80, in schedule 10, page 192, line, at end insert—

“(c) the assessed risk of harm arising from that part of the service.”

This amendment, together with Amendments 81 and 82, widens Category 1 to include those services which pose a very high risk of harm, regardless of the number of users.

Amendment 81, in schedule 10, page 192, line 39, after “functionality” insert—

“and at least one specified condition about the assessed risk of harm”

This amendment is linked to Amendment 80.

Amendment 82, in schedule 10, page 192, line 41, at end insert—

‘(4A) At least one specified condition about the assessed risk of harm must provide for a service assessed as posing a very high risk of harm to its users to meet the Category 1 threshold.”

This amendment is linked to Amendment 80, it widens Category 1 to include those services which pose a very high risk of harm, regardless of the number of users.

That schedule 10 be the Tenth schedule to the Bill.

Clause 81 stand part.

Clause 82 stand part.

--- Later in debate ---

[Alex Davies-Jones]

I completely agree with my hon. Friend. The evidence we heard from Danny Stone from the Antisemitism Policy Trust clearly outlined the real-world harm that legal but harmful content causes. Such content may be legal, but it causes mass casualties and harm in the real world.

There are ways that we can rectify that in the Bill. Danny Stone set them out in his evidence and the SNP amendments, which the Labour Front Bench supports wholeheartedly, outline them too. I know the Minister wants to go further; he has said as much himself to this Committee and on the Floor of the House. I urge him to support some of the amendments, because it is clear that such changes can save lives.

Schedule 10 outlines the regulations specifying threshold conditions for categories of part 3 services. Put simply, as the Minister knows, Labour has concerns about the Government’s plans to allow thresholds for each category to be set out in secondary legislation. As we have said before, the Bill has already faced significant delays at the hands of the Government and we have real concerns that a reliance on secondary legislation further kicks the can down the road.

We also have concerns that the current system of categorisation is inflexible in so far as we have no understanding of how it will work if a service is required to shift from one category to another, and how long that would take. How exactly will that work in practice? Moreover, how long would Ofcom have to preside over such decisions?

We all know that the online space is susceptible to speed, with new technologies and ways of functioning popping up all over, and very often. Will the Minister clarify how he expects the re-categorisation process to occur in practice? The Minister must accept that his Department has been tone deaf on this point. Rather than an arbitrary size cut-off, the regulator must use risk levels to determine which category a platform should fall into so that harmful and dangerous content does not slip through the net.

Labour welcomes clause 81, which sets out Ofcom’s duties in establishing a register of categories of certain part 3 services. As I have repeated throughout the passage of the Bill, having a level of accountability and transparency is central to its success. However, we have slight concerns that the wording in subsection (1), which stipulates that the register be established

“as soon as reasonably practicable”,

could be ambiguous and does not give us the certainty we require. Given the huge amount of responsibility the Bill places on Ofcom, will the Minister confirm exactly what he believes the stipulation means in practice?

Finally, we welcome clause 82. It clarifies that Ofcom has a duty to maintain the all-important register. However, we share the same concerns I previously outlined about the timeframe in which Ofcom will be compelled to make such changes. We urge the Minister to move as quickly as he can, to urge Ofcom to do all they can and to make these vital changes.

[Chris Philp]

As we have heard, the clauses set out how different platforms will be categorised with the purpose of ensuring duties are applied in a reasonable and proportionate way that avoids over-burdening smaller businesses. However, it is worth being clear that the Online Safety Bill, as drafted, requires all in-scope services, regardless of their user size, to take action against content that is illegal and where it is necessary to protect children. It is important to re-emphasise the fact that there is no size qualification for the illegal content duties and the duties on the protection of children.

It is also important to stress that under schedule 10 as drafted there is flexibility, as the shadow Minister said, for the Secretary of State to change the various thresholds, including the size threshold, so there is an ability, if it is considered appropriate, to lower the size thresholds in such a way that more companies come into scope, if that is considered necessary.

It is worth saying in passing that we want these processes to happen quickly. Clearly, it is a matter for Ofcom to work through the operations of that, but our intention is that this will work quickly. In that spirit, in order to limit any delays to the process, Ofcom can rely on existing research, if that research is fit for purpose under schedule 10 requirements, rather than having to do new research. That will greatly assist moving quickly, because the existing research is available off the shelf immediately, whereas commissioning new research may take some time. For the benefit of Hansard and people who look at this debate for the application of the Bill, it is important to understand that that is Parliament’s intention.

I will turn to the points raised by the hon. Member for Aberdeen North and the shadow Minister about platforms that may be small and fall below the category 1 size threshold but that are none the less extremely toxic, owing to the way that they are set up, their rules and their user base. The shadow Minister mentioned several such platforms. I have had meetings with the stakeholders that she mentioned, and we heard their evidence. Other Members raised this point on Second Reading, including the right hon. Member for Barking (Dame Margaret Hodge) and my hon. Friend the Member for Brigg and Goole (Andrew Percy). As the hon. Member for Aberdeen North said, I signalled on Second Reading that the Government are listening carefully, and our further work in that area continues at pace.

I am not sure that amendment 80 as drafted would necessarily have the intended effect. Proposed new sub-paragraph (c) to schedule 10(1) would add a risk condition, but the conditions in paragraph (1) are applied with “and”, so they must all be met. My concern is that the size threshold would still apply, and that this specific drafting of the amendment would not have the intended effect.

We will not accept the amendments as drafted, but as I said on Second Reading, we have heard the representations—the shadow Minister and the hon. Member for Aberdeen North have made theirs powerfully and eloquently—and we are looking carefully at those matters. I hope that provides some indication of the Government’s thinking. I thank the stakeholders who engaged and provided extremely valuable insight on those issues. I commend the clause to the Committee.

[Kirsty Blackman]

I thank the Minister for his comments. I still think that such platforms are too dangerous not to be subject to more stringent legislation than similar-sized platforms. For the Chair’s information, I would like to press amendment 80 to a vote. If it falls, I will move straight to pressing amendment 82 to a vote, missing out amendment 81. Does that makes sense, Chair, and is it possible?

--- Later in debate ---

[The Chair]

I did not indicate at the start of the debate that I would take the clause stand part and clause 84 stand part together, but I am perfectly relaxed about it and very happy to do so, as the hon. Lady has spoken to them. If any other colleague wishes to speak to them, that is fine by me.

[Chris Philp]

Perhaps I might start with amendment 34, which the shadow Minister just spoke to. We agree that it is very important to consider the risks posed to victims who are outside of the territory of the United Kingdom. However, for the reasons I will elaborate on, we believe that the Bill as drafted achieves that objective already.

First, just to remind the Committee, the Bill already requires companies to put in place proportionate systems and processes to prevent UK users from encountering illegal content. Critically, that includes where a UK user creates illegal content via an in-scope platform, but where the victim is overseas. Let me go further and remind the Committee that clause 9 requires platforms to prevent UK users from encountering illegal content no matter where that content is produced or published. The word “encounter” is very broadly defined in clause 189 as meaning

“read, view, hear or otherwise experience content”.

As such, it will cover a user’s contact with any content that they themselves generate or upload to a service.

Critically, there is another clause, which we have discussed previously, that is very important in the context of overseas victims, which the shadow Minister quite rightly raises. The Committee will recall that subsection (9) of clause 52, which is the important clause that defines illegal content, makes it clear that that content does not have to be generated, uploaded or accessed in the UK, or indeed to have anything to do with the UK, in order to count as illegal content towards which the company has duties, including risk assessment duties. Even if the illegal act—for example, sexually abusing a child—happens in some other country, not the UK, it still counts as illegal content under the definitions in the Bill because of clause 52(9). It is very important that those duties will apply to that circumstance. To be completely clear, if an offender in the UK uses an in-scope platform to produce content where the victim is overseas, or to share abuse produced overseas with other UK users, the platform must tackle that, both through its risk assessment duties and its other duties.

As such, the entirely proper intent behind amendment 34 is already covered by the Bill as drafted. The shadow Minister, the hon. Member for Pontypridd, has already referred to the underlying purpose of clauses 83 and 84. As we discussed before, the risk assessments are central to the duties in the Bill. It is essential that Ofcom has a proper picture of the risks that will inform its various regulatory activities, which is why these clauses are so important. Clause 84 requires Ofcom to produce guidance to services to make sure they are carrying out those risk assessments properly, because it is no good having a token risk assessment or one that does not properly deal with the risks. The guidance published under clause 84 will ensure that happens. As such, I will respectfully resist amendment 34, on the grounds that its contents are already covered by the Bill.

[Alex Davies-Jones]

I am grateful for the Minister’s clarification. Given his assurances that its contents are already covered by the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 ordered to stand part of the Bill.

Clause 84 ordered to stand part of the Bill.

Clause 85

Power to require information

--- Later in debate ---

[Kirsty Blackman]

I want to make a brief comment echoing the shadow Minister’s welcome for the inclusion of senior managers and named people in the Bill. I agree that that level of personal liability and responsibility is the only way that we will be able to hold some of these incredibly large, unwieldy organisations to account. If they could wriggle out of this by saying, “It’s somebody else’s responsibility,” and if everyone then disagreed about whose responsibility it was, we would be in a much worse place, so I also support the inclusion of these clauses and schedule 11.

[Chris Philp]

I am delighted by the strong support that these clauses have received from across the aisle. I hope that proves to be a habit-forming development.

On the shadow Minister’s point about publishing the risk assessments, to repeat the point I made a few days ago, under clause 64, which we have already debated, Ofcom has the power—indeed, the obligation—to compel publication of transparency reports that will make sure that the relevant information sees the light of day. I accept that publication is important, but we believe that objective is achieved via the transparency measures in clause 64.

On the point about senior management liability, which again we debated near the beginning of the Bill, we believe—I think we all agree—that this is particularly important for information disclosure. We had the example, as I mentioned at the time, of one of the very large companies refusing to disclose information to the Competition and Markets Authority in relation to a competition matter and simply paying a £50 million fine rather than complying with the duties. That is why criminal liability is so important here in relation to information disclosure.

To reassure the shadow Minister, on the point about when that kicks in, it was in the old version of the Bill, but potentially did not commence for two years. In this new version, updated following our extensive and very responsive listening exercise—I am going to get that in every time—the commencement of this particular liability is automatic and takes place very shortly after Royal Assent. The delay and review have been removed, for the reason the hon. Lady mentioned, so I am pleased to confirm that to the Committee.

The shadow Minister described many of the provisions. Clause 85 gives Ofcom powers to require information, clause 86 gives the power to issue notices and clause 87 the important power to require an entity to name that relevant senior manager, so they cannot wriggle out of their duty by not providing the name. Clause 88 gives the power to require companies to undergo a report from a so-called skilled person. Clause 89 requires full co-operation with Ofcom when it opens an investigation, where co-operation has been sadly lacking in many cases to date. Clause 90 requires people to attend an interview, and the introduction to schedule 11 allows Ofcom to enter premises to inspect or audit the provider. These are very powerful clauses and will mean that social media companies can no longer hide in the shadows from the scrutiny they so richly deserve.

Question put and agreed to.

Clause 85 accordingly ordered to stand part of the Bill.

Clauses 86 to 91 ordered to stand part of the Bill.

Schedule 11

OFCOM’s powers of entry, inspection and audit

Amendment made: 4, in schedule 11, page 202, line 17, leave out

“maximum summary term for either-way offences”

and insert

“general limit in a magistrates’ court”.—(Chris Philp.)

Schedule 11, as amended, agreed to.

Clause 92

Offences in connection with information notices

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Alex Davies-Jones]

The Minister will be pleased to hear that we, again, support these clauses. We absolutely support the Bill’s aims to ensure that information offences and penalties are strong enough to dissuade non-compliance. However, as we said repeatedly, we feel that the current provisions are lacking.

As it stands, senior managers can be held criminally liable only for technical offences, such as failing to supply information to the regulator. I am grateful that the Minister has confirmed that the measures will come into force with immediate effect following Royal Assent, rather than waiting two years. That is welcome news. The Government should require that top bosses at social media companies be criminally liable for systemic and repeated failures on online safety, and I am grateful for the Minister’s confirmation on that point.

As these harms are allowed to perpetuate, tech companies cannot continue to get away without penalty. Will the Minister confirm why the Bill does not include further penalties, in the form of criminal offences, should a case of systemic and repeated failures arise? Labour has concerns that, without stronger powers, Ofcom may not feel compelled or equipped to sanction those companies who are treading the fine line of doing just enough to satisfy the requirements outlined in the Bill as it stands.

Labour also welcomes clause 93, which sets out the criminal offences that can be committed by named senior managers in relation to their entity’s information obligations. It establishes that senior managers who are named in a response to an information notice can be held criminally liable for failing to prevent the relevant service provider from committing an information offence. Senior managers can only be prosecuted under the clause where the regulated provider has already been found liable for failing to comply with Ofcom’s information request. As I have already stated, we feel that this power needs to go further if we are truly to tackle online harm. For far too long, those at the very top have known about the harm that exists on their platforms, but they have failed to take action.

Labour supports clause 94 and we have not sought to amend at this stage. It is vital that provisions are laid in the Bill, such as those in subsection (3), which specify actions that a person may take to commit an offence of this nature. We all want to see the Bill keep people safe online, and at the heart of doing so is demanding a more transparent approach from those in silicon valley. My hon. Friend the Member for Worsley and Eccles South made an excellent case for the importance of transparency earlier in the debate but, as the Minister knows, and as I have said time and again, the offences must go further than just applying to simple failures to provide information. We must consider a systemic approach to harm more widely, and that goes far beyond simple information offences.

There is no need to repeat myself. Labour supports the need for clause 95 as it stands and we support clause 96, which is in line with penalties for other information offences that already exist.

[Chris Philp]

I am delighted to discover that agreement with the Governments clauses continues to provoke a tsunami of unanimity across the Committee. I sense a gathering momentum behind these clauses.

As the shadow Minister mentioned, the criminal offences here are limited to information provision and disclosure. We have debated the point before. The Government’s feeling is that going beyond the information provision into other duties for criminal liability would potentially go a little far and have a chilling effect on the companies concerned.

Also, the fines that can be levied—10% of global revenue—run into billions of pounds, and there are the denial of service provisions, where a company can essentially be disconnected from the internet in extreme cases; these do provide more than adequate enforcement powers for the other duties in the Bill. The information duties are so fundamental—that is why personal criminal liability is needed. Without the information, we cannot really make any further assessment of whether the duties are being met.

The shadow Minister has set out what the other clauses do: clause 92 creates offences; clause 93 introduces senior managers’ liability; clause 94 sets out the offences that can be committed in relation to audit notices issued by Ofcom; clause 95 creates offences for intentionally obstructing or delaying a person exercising Ofcom’s power; and clause 96 sets out the penalties for the information offences set out in the Bill, which of course include a term of imprisonment of up to two years. Those are significant criminal offences, which I hope will make sure that executives working for social media firms properly discharge those important duties.

Question put and agreed to.

Clause 92 accordingly ordered to stand part of the Bill.

Clauses 93 to 95 ordered to stand part of the Bill.

Clause 96

Penalties for information offences

Amendment made: 2, in clause 96, page 83, line 15, leave out

“maximum summary term for either-way offences”

and insert

“general limit in a magistrates’ court”—(Chris Philp.)

Clause 96, as amended, ordered to stand part of the Bill.

Clause 97

Co-operation and disclosure of information: overseas regulators

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider clauses 98 to 102 stand part.

--- Later in debate ---

[Chris Philp]

I am delighted that support for the Government’s position on the clauses continues and that cross-party unanimity is taking an ever stronger hold. I am sure the Whips Office will find that particularly reassuring.

The shadow Minister asked a question about clause 100. Clause 100 amends section 24B of the Communications Act 2003, which allows Ofcom to provide information to the Secretary of State to assist with the formulation of policy. She asked me to clarify what that means, which I am happy to do. In most circumstances, Ofcom will be required to obtain the consent of providers in order to share information relating to their business. This clause sets out two exceptions to that principle. If the information required by the Secretary of State was obtained by Ofcom to determine the proposed fees threshold, or in response to potential threats to national security or to the health or safety of the public, the consent of the business is not required. In those instances, it would obviously not be appropriate to require the provider’s consent.

It is important that users of regulated services are kept informed of developments around online safety and the operation of the regulatory framework.

[Kirsty Blackman]

This specifically relates to the Secretary of State, but would the Minister expect both Ofcom and his Department to be working with the Scottish Government and the Northern Ireland Executive? I am not necessarily talking about sharing all the information, but where there are concerns that it is very important for those jurisdictions to be aware of, will he try to ensure that he has a productive relationship with both devolved Administrations?

[Chris Philp]

I thank the hon. Member for her question. Where the matter being raised or disclosed touches on matters of devolved competence—devolved authority—then yes, I would expect that consultation to take place. Matters concerning the health and safety of the public are entirely devolved, I think, so I can confirm that in those circumstances it would be appropriate for the Secretary of State to share information with devolved Administration colleagues.

The shadow Minister has eloquently, as always, touched on the purpose of the various other clauses in this group. I do not wish to try the patience of the Committee, particularly as lunchtime approaches, by repeating what she has ably said already, so I will rest here and simply urge that these clauses stand part of the Bill.

Question put and agreed to.

Clause 97 accordingly ordered to stand part of the Bill.

Clauses 98 to 102 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Steve Double.)

Online Safety Bill (Ninth sitting)

Chris Philp Excerpts

Committee stage
Tuesday 14th June 2022 Public Bill Committees

[Alex Davies-Jones (Pontypridd) (Lab)]

Good morning, Ms Rees; it is, as always, a pleasure to serve under your chairship.

Amendment 84 would remove the Secretary of State’s ability to modify Ofcom codes of practice

“for reasons of public policy”.

Labour agrees with the Carnegie UK Trust assessment of this: the codes are the fulcrum of the regulatory regime and it is a significant interference in Ofcom’s independence. Ofcom itself has noted that the “reasons of public policy” power to direct might weaken the regime. If Ofcom has undertaken a logical process, rooted in evidence, to arrive at a draft code, it is hard to see how a direction based on “reasons of public policy” is not irrational. That then creates a vulnerability to legal challenge.

On clause 40 more widely, the Secretary of State should not be able to give Ofcom specific direction on non-strategic matters. Ofcom’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies. The UK has signed up to many international statements in that vein, including as recently as April 2022 at the Council of Europe. That statement says that

“media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power.”

The Bill introduces powers for the Secretary of State to direct Ofcom on internet safety codes. These provisions should immediately be removed. After all, in broadcasting regulation, Ofcom is trusted to make powerful programme codes with no interference from the Secretary of State. Labour further notes that although the draft Bill permitted this

“to ensure that the code of practice reflects government policy”,

clause 40 now specifies that any code may be required to be modified

“for reasons of public policy”.

Although that is more normal language, it is not clear what in practice the difference in meaning is between the two sets of wording. I would be grateful if the Minister could confirm what that is.

The same clause gives the Secretary of State powers to direct Ofcom, on national security or public safety grounds, in the case of terrorism or CSEA—child sexual exploitation and abuse—codes of practice. The Secretary of State might have some special knowledge of those, but the Government have not demonstrated why they need a power to direct. In the broadcasting regime, there are no equivalent powers, and the Secretary of State was able to resolve the case of Russia Today, on national security grounds, with public correspondence between the Secretary of State and Ofcom.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

Good morning, Ms Rees; it is a pleasure to serve under your chairmanship again. The SNP spokesman and the shadow Minister have already explained what these provisions do, which is to provide a power for the Secretary of State to make directions to Ofcom in relation to modifying a code of conduct. I think it is important to make it clear that the measures being raised by the two Opposition parties are, as they said, envisaged to be used only in exceptional circumstances. Of course the Government accept that Ofcom, in common with other regulators, is rightly independent and there should be no interference in its day-to-day regulatory decisions. This clause does not seek to violate that principle.

However, we also recognise that although Ofcom has great expertise as a regulator, there may be situations in which a topic outside its area of expertise needs to be reflected in a code of practice, and in those situations, it may be appropriate for a direction to be given to modify a code of conduct. A recent and very real example would be in order to reflect the latest medical advice during a public health emergency. Obviously, we saw in the last couple of years, during covid, some quite dangerous medical disinformation being spread—concerning, for example, the safety of vaccines or the “prudence” of ingesting bleach as a remedy to covid. There was also the purported and entirely false connection between 5G phone masts and covid. There were issues on public policy grounds—in this case, medical grounds—and it might have been appropriate to make sure that a code of conduct was appropriately modified.

[Dean Russell (Watford) (Con)]

It was mentioned earlier that some of us were on previous Committees that made recommendations more broadly that would perhaps be in line with the amendment. Since that time, there has been lots of discussion around this topic, and I have raised it with the Minister and colleagues. I feel reassured that there is a great need to keep the clause as is because of the fact that exceptional circumstances do arise. However, I would like reassurances that directions would be made only in exceptional circumstances and would not override the Ofcom policy or remit, as has just been discussed.

[Chris Philp]

I can provide my hon. Friend with that reassurance on the exceptional circumstances point. The Joint Committee report was delivered in December, approximately six months ago. It was a very long report—I think it had more than 100 recommendations. Of course, members of the Committee are perfectly entitled, in relation to one or two of those recommendations, to have further discussions, listen further and adjust their views if they individually see fit.

[John Nicolson]

rose—

[Chris Philp]

Let me just finish this point and then I will give way. The shadow SNP spokesman, the hon. Member for Ochil and South Perthshire, asked about the Government listening and responding, and we accepted 66 of the Joint Committee’s recommendations —a Committee that he served on. We made very important changes to do with commercial pornography, for example, and fraudulent advertising. We accepted 66 recommendations, so it is fair to say we have listened a lot during the passage of this Bill. On the amendments that have been moved in Committee, often we have agreed with the amendments but the Bill has already dealt with the matter. I wanted to respond to those two points before giving way.

[John Nicolson]

I am intrigued, as I am sure viewers will be. What is the new information that has come forward since December that has resulted in the Minister believing that he must stick with this? He has cited new information and new evidence, and I am dying to know what it is.

[Chris Philp]

I am afraid it was not me that cited new information. It was my hon. Friend the Member for Watford who said he had had further discussions with Ministers. I am delighted to hear that he found those discussions enlightening, as I am sure they—I want to say they always are, but let us say they often are.

[Dame Maria Miller (Basingstoke) (Con)]

Before my hon. Friend moves on, can I ask a point of clarification? The hon. Member for Ochil and South Perthshire is right that this is an important point, so we need to understand it thoroughly. I think he makes a compelling argument about the exceptional circumstances. If Ofcom did not agree that a change that was being requested was in line with what my hon. Friend the Minister has said, how would it be able to discuss or, indeed, challenge that?

[Chris Philp]

My right hon. Friend raises a good question. In fact, I was about to come on to the safeguards that exist to address some of the concerns that have been raised this morning. Let me jump to the fourth of the safeguards, which in many ways is the most powerful and directly addresses my right hon. Friend’s question.

In fact, a change has been made. The hon. Member for Ochil and South Perthshire asked what changes had been made, and one important change—perhaps the change that my hon. Friend the Member for Watford found convincing—was the insertion of a requirement for the codes, following a direction, to go before Parliament and be voted on using the affirmative procedure. That is a change. The Bill previously did not have that in it. We inserted the use of the affirmative procedure to vote on a modified code in order to introduce extra protections that did not exist in the draft of the Bill that the Joint Committee commented on.

I hope my right hon. Friend the Member for Basingstoke will agree that if Ofcom had a concern and made it publicly known, Parliament would be aware of that concern before voting on the revised code using the affirmative procedure. The change to the affirmative procedures gives Parliament extra control. It gives parliamentarians the opportunity to respond if they have concerns, if third parties raise concerns, or if Ofcom itself raises concerns.

[Kirsty Blackman (Aberdeen North) (SNP)]

Before the Minister moves off the point about exceptional circumstances, it was the case previously that an amendment of the law resolution was always considered with Finance Bills. In recent years, that has stopped on the basis of it being exceptional circumstances because a general election was coming up. Then the Government changed that, and now they never table an amendment of the law resolution because they have decided that that is a minor change. Something has gone from being exceptional to being minor, in the view of this Government.

The Minister said that he envisions that this measure will be used only in exceptional circumstances. Can he commit himself to it being used only in exceptional circumstances? Can he give the commitment that he expects that it will be used only in exceptional circumstances, rather than simply envisioning that it will be used in such circumstances?

[Chris Philp]

I have made clear how we expect the clause to be used. I am slightly hesitant to be more categorical simply because I do not want to make comments that might unduly bind a future Secretary of State—or, indeed, a future Parliament, because the measure is subject to the affirmative procedure—even were that Secretary of State, heaven forbid, to come from a party other than mine. Circumstances might arise, such as the pandemic, in which a power such as this needs to be exercised for good public policy reasons—in that example, public health. I would not want to be too categorical, which the hon. Lady is inviting me to be, lest I inadvertently circumscribe the ability of a future Parliament or a future Secretary of State to act.

The power is also limited in the sense that, in relation to matters that are not to do with national security or terrorism or CSEA, the power to direct can be exercised only at the point at which the code is submitted to be laid before Parliament. That cannot be done at any point. The power cannot be exercised at a time of the Secretary of State’s choosing. There is one moment, and one moment only, when that power can be exercised.

I also want to make it clear that the power will not allow the Secretary of State to direct Ofcom to require a particular regulated service to take a particular measure. The power relates to the codes of practice; it does not give the power to intrude any further, beyond the code of practice, in the arena of regulated activity.

I understand the points that have been made. We have listened to the Joint Committee, and we have made an important change, which is that to the affirmative procedure. I hope my explanation leaves the Committee feeling that, following that change, this is a reasonable place for clauses 40 and 41 to rest. I respectfully resist amendment 84 and new clause 12, and urge the Committee to allow clauses 40 and 41 to stand part of the Bill.

Question put, That the amendment be made.

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[Barbara Keeley (Worsley and Eccles South) (Lab)]

indicated dissent.

[Chris Philp]

Given that the clause is clearly uncontentious, I will be extremely brief.

[Steve Double (St Austell and Newquay) (Con)]

Hear, hear.

[Chris Philp]

I can see that that is the most popular thing I have said during the entire session—when you say, “And finally,” in a speech and the crowd cheers, you know you are in trouble.

Regulated user-to-user and search services will have duties to keep records of their risk assessments and the measures they take to comply with their safety duties, whether or not those are the ones recommended in the codes of practice. They must also undertake a children’s access assessment to determine whether children are likely to access their service.

Clause 48 places a duty on Ofcom to produce guidance to assist service providers in complying with those duties. It will help to ensure a consistent approach from service providers, which is essential in maintaining a level playing field. Ofcom will have a duty to consult the Information Commissioner prior to preparing this guidance, as set out in clause 48(2), in order to draw on the expertise of the Information Commissioner’s Office and ensure that the guidance is aligned with wider data protection and privacy regulation.

Question put and agreed to.

Clause 48 accordingly ordered to stand part of the Bill.

Clause 49

“Regulated user-generated content”, “user-generated content”, “news

publisher content”

[Kirsty Blackman]

I beg to move amendment 89, in clause 49, page 45, line 16, leave out subsection (e).

This amendment would remove the exemption for comments below news articles posted online.

--- Later in debate ---

We know—or I know, having some of my own—that children and young people cannot really be bothered to type things and much prefer to leave a voice message or something. I appreciate that voice messages do not count as live, but some conversations that will happen on platforms such as Discord are live, and those are those most harmful places where children can be encouraged to create child sexual abuse images, for example. I do not necessarily expect the Minister to have all the answers today, and I know there will be other opportunities to amend the Bill, but I would really appreciate it if he took a good look at the Bill and considered whether strengthening provisions can be put in place. If he desires to exempt one-to-one aural communications, he may still do that, while ensuring that child sexual abuse and grooming behaviour are considered illegal and within the scope of the Bill in whatever form they take place, whether in aural communications or in any other way.

[Chris Philp]

Let me start by addressing the substance of the two amendments and then I will answer one or two of the questions that arose in the course of the debate.

As Opposition Members have suggested, the amendments would bring the comments that appear below the line on news websites such as The Guardian, MailOnline or the BBC into the scope of the Bill’s safety duties. They are right to point out that there are occasions when the comments posted on those sites are extremely offensive.

There are two reasons why comments below BBC, Guardian or Mail articles are excluded from the scope of the Bill. First, the news media publishers—newspapers, broadcasters and their representative industry bodies—have made the case to the Government, which we are persuaded by, that the comments section below news articles is an integral part of the process of publishing news and of what it means to have a free press. The news publishers—both newspapers and broadcasters that have websites—have made that case and have suggested, and the Government have accepted, that intruding into that space through legislation and regulation would represent an intrusion into the operation of the free press.

[Alex Davies-Jones]

I am sorry, but I am having real trouble buying that argument. If the Minister is saying that newspaper comments sections are exempt in order to protect the free press because they are an integral part of it, why do we need the Bill in the first place? Social media platforms could argue in the same way that they are protecting free speech. They could ask, “Why should we regulate any comments on our social media platform if we are protecting free speech?” I am sorry; that argument does not wash.

[Chris Philp]

There is a difference between random individuals posting stuff on Facebook, as opposed to content generated by what we have defined as a “recognised news publisher”. We will debate that in a moment. We recognise that is different in the Bill. Although the Opposition are looking to make amendments to clause 50, they appear to accept that the press deserve special protection. Article 10 case law deriving from the European convention on human rights also recognises that the press have a special status. In our political discourse we often refer generally to the importance of the freedom of the press. We recognise that the press are different, and the press have made the case—both newspapers and broadcasters, all of which now have websites—that their reader engagement is an integral part of that free speech. There is a difference between that and individuals chucking stuff on Facebook outside of the context of a news article.

There is then a question about whether, despite that, those comments are still sufficiently dangerous that they merit regulation by the Bill—a point that the shadow Minister, the hon. Member for Pontypridd, raised. There is a functional difference between comments made on platforms such as Facebook, Twitter, TikTok, Snapchat or Instagram, and comments made below the line on a news website, whether it is The Guardian, the Daily Mail, the BBC—even The National. The difference is that on social media platforms, which are the principal topic of the Bill, there is an in-built concept of virality—things going viral by sharing and propagating content widely. The whole thing can spiral rapidly out of control.

Virality is an inherent design feature in social media sites. It is not an inherent design feature of the comments we get under the news website of the BBC, The Guardian or the Daily Mail. There is no way of generating virality in the same way as there is on Facebook and Twitter. Facebook and Twitter are designed to generate massive virality in a way that comments below a news website are not. The reach, and the ability for them to grow exponentially, is orders of magnitude lower on a news website comment section than on Facebook. That is an important difference, from a risk point of view.

[Kim Leadbeater (Batley and Spen) (Lab)]

This issue comes down to a fundamental point—are we looking at volume or risk? There is no difference between an individual—a young person in this instance—seeing something about suicide or self-harm on a Facebook post or in the comments section of a newspaper article. The volume—whether it goes viral or not—does not matter if that individual has seen that content and it has directed them to somewhere that will create serious harm and lead them towards dangerous behaviour. The volume is not the point.

[Chris Philp]

The hon. Lady raises an important philosophical question that underpins much of the Bill’s architecture. All the measures are intended to strike a balance. Where there are things that are at risk of leading to illegal activity, and things that are harmful to children, we are clamping down hard, but in other areas we are being more proportionate. For example, the legal but harmful to adult duties only apply to category 1 companies, and we are looking at whether that can be extended to other high-risk companies, as we debated earlier. In the earlier provisions that we debated, about “have regard to free speech”, there is a balancing exercise between the safety duties and free speech. A lot of the provisions in the Bill have a sense of balance and proportionality. In some areas, such as child sexual exploitation and abuse, there is no balance. We just want to stop that—end of story. In other areas, such as matters that are legal but harmful and touch on free speech, there is more of a balancing exercise.

In this area of news publisher content, we are again striking a balance. We are saying that the inherent harmfulness of those sites, owing to their functionality—they do not go viral in the same way—is much lower. There is also an interaction with freedom of the press, as I said earlier. Thus, we draw the balance in a slightly different way. To take the example of suicide promotion or self-harm content, there is a big difference between stumbling across something in comment No. 74 below a BBC article, versus the tragic case of Molly Russell—the 14-year-old girl whose Instagram account was actively flooded, many times a day, with awful content promoting suicide. That led her to take her own life.

I think the hon. Member for Batley and Spen would probably accept that there is a functional difference between a comment that someone has to scroll down a long way to find and probably sees only once, and being actively flooded with awful content. In having regard to those different arguments—the risk and the freedom of the press—we try to strike a balance. I accept that they are not easy balances to strike, and that there is a legitimate debate to be had on them. However, that is the reason that we have adopted this approach.

[Kirsty Blackman]

I have a question on anonymity. On social media there will be a requirement to verify users’ identities, so if somebody posts on Twitter that they want to lynch me, it is possible to find out who that is, provided they do not have an anonymous account. There is no such provision for newspaper comment sections, so I assume it would be much more difficult for the police to find them, or for me not to see anonymous comments that threaten my safety below the line of newspaper articles—comments that are just as harmful, which threaten my safety on social media. Can the Minister can convince me otherwise?

[Chris Philp]

The hon. Lady is correct in her analysis, I can confirm. Rather similar to the previous point, because of the interaction with freedom of the press—the argument that the newspapers and broadcasters have advanced—and because this is an inherently less viral environment, we have drawn the balance where we have. She is right to highlight a reasonable risk, but we have struck the balance in the way we have for that reason.

The shadow Minister, the hon. Member for Pontypridd, asked whether very harmful or illegal interactions in the metaverse would be covered or whether they have a metaphorical “get out of jail free” card owing to the exemption in clause 49(2)(d) for “one-to-one live aural communications”. In essence, she is asking whether, in the metaverse, if two users went off somewhere and interacted only with each other, that exemption would apply and they would therefore be outwith the scope of the Bill. I am pleased to tell her they would not, because the definition of live one-to-one aural communications goes from clause 49(2)(d) to clause 49(5), which defines “live aural communications”. Clause 49(5)(c) states that the exemption applies only if it

“is not accompanied by user-generated content of any other description”.

The actions of a physical avatar in the metaverse do constitute user-generated content of any other description. Owing to that fact, the exemption in clause 49(2)(d) would not apply to the metaverse.

I am happy to provide clarification on that. It is a good question and I hope I have provided an example of how, even though the metaverse was not conceived when the Bill was conceived, it does have an effect.

[Kirsty Blackman]

On that point, when it comes to definition of content, we have tabled an amendment about “any other content”. I am not convinced that the definition of content adequately covers what the Minister stated, because it is limited, does not include every possible scenario where it is user-generated and is not future-proofed enough. When we get to that point, I would appreciate it if the Minister would look at the amendment and ensure that what he intends is what happens.

[Chris Philp]

I am grateful to the hon. Lady for thinking about that so carefully. I look forward to her amendment. For my information, which clause does her amendment seek to amend?

[Kirsty Blackman]

I will let the Minister know in a moment.

[Chris Philp]

I am grateful. It is an important point.

[Dean Russell]

During the Joint Committee we were concerned about future-proofing. Although I appreciate it is not specifically included in the Bill because it is a House matter, I urge the setting up of a separate Online Safety Act committee that runs over time, so that it can continue to be improved upon and expanded, which would add value. We do not know what the next metaverse will be in 10 years’ time. However, I feel confident that the metaverse was included and I am glad that the Minister has confirmed that.

[Chris Philp]

I thank my hon. Friend for his service on the Joint Committee. I heard the representations of my right hon. Friend the Member for Basingstoke about a Joint Committee, and I have conveyed them to the higher authorities.

[Kirsty Blackman]

The amendment that the Minister is asking about is to clause 189, which states:

“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, visual images, music and data of any description”.

It is amendment 76 that, after “including”, would insert “but not limited to”, in order that the Bill is as future-proofed as it can be.

[Chris Philp]

I thank the hon. Lady for her rapid description of that amendment. We will come to clause 189 in due course. The definition of “content” in that clause is,

“anything communicated by means of an internet service”,

which sounds like it is quite widely drafted. However, we will obviously debate this issue properly when we consider clause 189.

The remaining question—

[Dame Maria Miller]

I intervene rather than making a subsequent substantive contribution because I am making a very simple point. My hon. Friend the Minister is making a really compelling case about the need for freedom of speech and the need to protect it within the context of newspapers online. However, could he help those who might be listening to this debate today to understand who is responsible if illegal comments are made on newspaper websites? I know that my constituents would be concerned about that, not particularly if illegal comments were made about a Member of Parliament or somebody else in the public eye, but about another individual not in the public eye.

What redress would that individual have? Would it be to ask the newspaper to take down that comment, or would it be that they could find out the identity of the individual who made the comment, or would it be that they could take legal action? If he could provide some clarity on that, it might help Committee members to understand even further why he is taking the position that he is taking.

[Chris Philp]

I thank my right hon. Friend for that intervention. First, clearly if something illegal is said online about someone, they would have the normal redress to go to the police and the police could seek to exercise their powers to investigate the offence, including requesting the company that hosts the comments—in this case, it would be a newspaper’s or broadcaster’s website—to provide any relevant information that might help to identify the person involved; they might have an account, and if they do not they might have a log-on or IP address. So, the normal criminal investigatory procedures would obviously apply.

Secondly, if the content was defamatory, then—I realise that only people like Arron Banks can sue for libel, but there is obviously civil recourse for libel. And I think there are powers in the civil procedure rules that allow for court orders to be made that require organisations, such as news media websites, to disclose information that would help to identify somebody who is a respondent in a civil case.

Thirdly, there are obviously the voluntary steps that the news publisher might take to remove content. News publishers say that they do that; obviously, their implementation, as we know, is patchy. Nevertheless, there is that voluntary route.

Regarding any legal obligation that may fall on the shoulders of the news publisher itself, I am not sure that I have sufficient legal expertise to comment on that. However, I hope that those first three areas of redress that I have set out give my right hon. Friend some assurance on this point.

Finally, I turn to a question asked by the hon. Member for Aberdeen North. She asked whether the exemption for “one-to-one live aural communications”, as set out in clause 49(2)(d), could inadvertently allow grooming or child sexual exploitation to occur via voice messages that accompany games, for example. The exemption is designed to cover what are essentially phone calls such as Skype conversations—one-to-one conversations that are essentially low-risk.

We believe that the Bill contains other duties to ensure that services are designed to reduce the risk of grooming and to address risks to children, if those risks exist, such as on gaming sites. I would be happy to come back to the hon. Lady with a better analysis and explanation of where those duties sit in the Bill, but there are very strong duties elsewhere in the Bill that impose those obligations to conduct risk assessments and to keep children safe in general. Indeed, the very strongest provisions in the Bill are around stopping child sexual exploitation and abuse, as set out in schedule 6.

Finally, there is a power in clause 174(1) that allows us, as parliamentarians and the Government, to repeal this exemption using secondary legislation. So, if we found in the future that this exemption caused a problem, we could remove it by passing secondary legislation.

[Kirsty Blackman]

That is helpful for understanding the rationale, but in the light of how people communicate online these days, although exempting telephone conversations makes sense, exempting what I am talking about does not. I would appreciate it if the Minister came back to me on that, and he does not have to give me an answer now. It would also help if he explained the difference between “aural” and “oral”, which are mentioned at different points in the Bill.

[Chris Philp]

I will certainly come back with a more complete analysis of the point about protecting children—as parents, that clearly concerns us both. The literal definitions are that “aural” means “heard” and “oral” means “spoken”. They occur in different places in the Bill.

This is a difficult issue and legitimate questions have been raised, but as I said in response to the hon. Member for Batley and Spen, in this area as in others, there are balances to strike and different considerations at play—freedom of the press on the one hand, and the level of risk on the other. I think that the clause strikes that balance in an appropriate way.

Question put, That the amendment be made.

--- Later in debate ---

There is no simple, agreed definition of what constitutes a recognised news publisher, and even those who have given evidence on behalf of the press have conceded that, but we must find a way to navigate this challenge. As drafted, the Bill does not do that. I am open to working with colleagues from all parties to tweak and improve this amendment, and to find an acceptable and agreed way to secure the balance we all wish to see. However, so far I have not seen or heard a better way to tighten the definitions in the Bill so as to achieve this balance, and I believe this amendment is an important step in the right direction.

[Chris Philp]

I thank the hon. Member for Batley and Spen for her speech. There is agreement across the House, in this Committee and in the Joint Committee that the commitment to having a free press in this country is extremely important. That is why recognised news publishers are exempted from the provisions of the Bill, as the hon. Lady said.

The clause, as drafted, has been looked at in some detail over a number of years and debated with news publishers and others. It is the best attempt that we have so far collectively been able to come up with to provide a definition of a news publisher that does not infringe on press freedom. The Government are concerned that if the amendment were adopted, it would effectively require news publishers to register with a regulator in order to benefit from the exemption. That would constitute the imposition of a mandatory press regulator by the back door. I put on record that this Government do not support any kind of mandatory or statutory press regulation, in any form, for reasons of freedom of the press. Despite what has been said in previous debates, we think to do that would unreasonably restrict the freedom of the press in this country.

While I understand its intention, the amendment would drive news media organisations, both print and broadcast, into the arms of a regulator, because they would have to join one in order to get the exemption. We do not think it is right to create that obligation. We have reached the philosophical position that statutory or mandatory regulation of the press is incompatible with press freedom. We have been clear about that general principle and cannot accept the amendment, which would violate that principle.

In relation to hostile states, such as Russia, I do not think anyone in the UK press would have the slightest objection to us finding ways to tighten up on such matters. As I have flagged previously, thought is being given to that issue, but in terms of the freedom of the domestic press, we feel very strongly that pushing people towards a regulator is inappropriate in the context of a free press.

The characterisation of these provisions is a little unfair, because some of the requirements are not trivial. The requirement in 50(2)(f) is that there must be a person—I think it includes a legal person as well as an actual person—who has legal responsibility for the material published, which means that, unlike with pretty much everything that appears on the internet, there is an identified person who has legal responsibility. That is a very important requirement. Some of the other requirements, such as having a registered address and a standards code, are relatively easy to meet, but the point about legal responsibility is very important. For that reason, I respectfully resist the amendment.

[Kim Leadbeater]

I will not push the amendment to a vote, but it is important to continue this conversation, and I encourage the Minister to consider the matter as the Bill proceeds. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[John Nicolson]

In its current form, the Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets and new publishers, and the outlets’ websites are also exempt from the scope of the Bill. However, the way the Bill is drafted means that hundreds of independently regulated specialist publishers’ titles will be excluded from the protections afforded to recognised media outlets and news publishers. This will have a long-lasting and damaging effect on an indispensable element of the UK’s media ecosystem.

Specialist publishers provide unparalleled insights into areas that broader news management organisations will likely not analyse, and it would surely be foolish to dismiss and damage specialist publications in a world where disinformation is becoming ever more prevalent. The former Secretary of State, the right hon. Member for Maldon (Mr Whittingdale), also raised this issue on Second Reading, where he stated that specialist publishers

“deserve the same level of protection.”—[Official Report, 19 April 2022; Vol. 712, c. 109.]

Part of the rationale for having the news publishers exemption in the Bill is that it means that the press will not be double-regulated. Special interest material is already regulated, so it should benefit from the same exemptions.

[Chris Philp]

For the sake of clarity, and for the benefit of the Committee and those who are watching, could the hon. Gentleman say a bit more about what he means by specialist publications and perhaps give one or two examples to better illustrate his point?

[John Nicolson]

I would be delighted to do so. I am talking about specific and occasionally niche publications. Let us take an example. Gardeners’ World is not exactly a hotbed of online harm, and nor is it a purveyor of disinformation. It explains freely which weeds to pull up and which not to, without seeking to confuse people in any way. Under the Bill, however, such publications will be needlessly subjected to rules, creating a regulatory headache for the sector. This is a minor amendment that will help many businesses, and I would be interested to hear from the Minister why the Government will not listen to the industry on this issue.

[Chris Philp]

I thank the hon. Member for Ochil and South Perthshire for his amendment and his speech. I have a couple of points to make in reply. The first is that the exemption is about freedom of the press and freedom of speech. Clearly, that is most pertinent and relevant in the context of news, information and current affairs, which is the principal topic of the exemption. Were we to expand it to cover specialist magazines—he mentioned Gardeners’ World—I do not think that free speech would have the same currency when it comes to gardening as it would when people are discussing news, current affairs or public figures. The free speech argument that applies to newspapers, and to other people commenting on current affairs or public figures, does not apply in the same way to gardening and the like.

That brings me on to a second point. Only a few minutes ago, the hon. Member for Batley and Spen drew the Committee’s attention to the risks inherent in the clause that a bad actor could seek to exploit. It was reasonable of her to do so. Clearly, however, the more widely we draft the clause—if we include specialist publications such as Gardeners’ World, whose circulation will no doubt soar on the back of this debate—the greater the risk of bad actors exploiting the exemption.

My third point is about undue burdens being placed on publications. To the extent that such entities count as social media platforms—in-scope services—the most onerous duties under the Bill apply only to category 1 companies, or the very biggest firms such as Facebook and so on. The “legal but harmful” duties and many of the risk assessment duties would not apply to many organisations. In fact, I think I am right to say that if the only functionality on their websites is user comments, they would in any case be outside the scope of the Bill. I have to confess that I am not intimately familiar with the functionality of the Gardeners’ World website, but there is a good chance that if all it does is to provide the opportunity to post comments and similar things, it would be outside the scope of the Bill anyway, because it does not have the requisite functionality.

I understand the point made by the hon. Member for Ochil and South Perthshire, we will, respectfully, resist the amendment for the many reasons I have given.

[The Chair]

John, do you wish to press the amendment to a vote?

--- Later in debate ---

My hon. Friend the Member for Ochil and South Perthshire mentioned Gardeners’ World. There are also websites and specialist online publications such as the British Medical Journal that are subject to specific regulation that is separate from the Bill; if they have any user-to-user functionality—I do not know whether the BMJ does—they will also be subject to the requirements described in the Bill. Such publications are inoffensive and provide a huge amount of important information to people; that is not necessarily to say that they should not be regulated, but it does not seem that there is a level playing field. Particularly during the pandemic, peer-reviewed scientific journals were incredibly important in spreading public service information; nevertheless, the Bill includes them in its scope, but not news publications. I am not sure why the Minister is drawing the line where he is on this issue, so a little more clarity would be appreciated.

[Chris Philp]

I made general comments about clause 50 during the debate on amendment 107; I will not try the Committee’s patience by repeating them, but I believe that in them, I addressed some of the issues that the shadow Minister, the hon. Member for Pontypridd, has raised.

On the hon. Member for Aberdeen North’s question about where the Bill states that sites with limited functionality—for example, functionality limited to comments alone—are out of scope, paragraph 4(1) of schedule 1 states that

“A user-to-user service is exempt if the functionalities of the service are limited, such that users are able to communicate by means of the service only in the following ways—

(a) posting comments or reviews relating to provider content;

(b) sharing such comments or reviews on a different internet service”.

Clearly, services where a user can share freely are in scope, but if they cannot share directly—if they can only share via another service, such as Facebook—that service is out of scope. This speaks to the point that I made to the hon. Member for Batley and Spen in a previous debate about the level of virality, because the ability of content to spread, proliferate, and be forced down people’s throats is one of the main risks that we are seeking to address through the Bill. I hope that paragraph 4(1) of schedule 1 is of assistance, but I am happy to discuss the matter further if that would be helpful.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

“Search content”, “search results” etc

Question proposed, That the clause stand part of the Bill.

[Alex Davies-Jones]

Labour does not oppose the intention of the clause. It is important to define “search content” in order to understand the responsibilities that fall within search services’ remits.

However, we have issues with the way that the Bill treats user-to-user services and search services differently when it comes to risk-assessing and addressing legal harm—an issue that we will come on to when we debate schedule 10. Although search services rightly highlight that the content returned by a search is not created or published by them, the algorithmic indexing, promotion and search prompts provided in search bars are fundamentally their responsibility. We do, however, accept that over the past 20 years, Google, for example, has developed mechanisms to provide a safer search experience for users while not curtailing access to lawful information. We also agree that search engines are critical to the proper functioning of the world wide web; they play a uniquely important role in facilitating access to the internet, and enable people to access, impart, and disseminate information.

Question put and agreed to.

Clause 51 accordingly ordered to stand part of the Bill.

Clause 52

“Illegal content” etc

--- Later in debate ---

I am concerned that we are missing an opportunity to tackle an issue that is an overwhelming problem for many women in this country, and I hope that when the Minister responds to this part of the debate, he can clearly set out the Government’s intention to tackle the issue. We all know that parliamentary time is in short supply: the Government have many Bills that they have to get through in this Session, before the next general election. I am concerned that this particular issue, which the Law Commission itself sees as so important, may not get the rapid legislation that we, as elected representatives, need to see happen. The foundation of the Bill is a duty of care, but that duty of care is only as good as the criminal law. If the criminal law is wanting when it comes to the publication online of intimate images, that is the taking, making and sharing of intimate images without consent—if that is not adequately covered in the criminal law—this legislation will not help the many people we want it to help. Will the Minister, in responding to the debate, outline in some detail, if possible, how he will handle the issue and when he hopes to make public the Law Commission recommendations, for which many people have been waiting for many years?

[Chris Philp]

I thank right hon. and hon. Members who have participated in the debate on this extremely important clause. It is extremely important because the Bill’s strongest provisions relate to illegal content, and the definition of illegal content set out in the clause is the starting point for those duties.

A number of important questions have been asked, and I would like to reply to them in turn. First, I want to speak directly about amendment 61, which was moved by the shadow Minister and which very reasonably and quite rightly asked the question about physically where in the world a criminal offence takes place. She rightly said that in the case of violence against some children, for example, that may happen somewhere else in the world but be transmitted on the internet here in the United Kingdom. On that, I can point to an existing provision in the Bill that does exactly what she wants. Clause 52(9), which appears about two thirds of the way down page 49 of the Bill, states:

“For the purposes of determining whether content amounts to an offence, no account is to be taken of whether or not anything done in relation to the content takes place in any part of the United Kingdom.”

What that is saying is that it does not matter whether the act of concern takes place physically in the United Kingdom or somewhere else, on the other side of the world. That does not matter in looking at whether something amounts to an offence. If it is criminal under UK law but it happens on the other side of the world, it is still in scope. Clause 52(9) makes that very clear, so I think that that provision is already doing what the shadow Minister’s amendment 61 seeks to do.

The shadow Minister asked a second question about the definition of illegal content, whether it involves a specific act and how it interacts with the “systems and processes” approach that the Bill takes. She is right to say that the definition of illegal content applies item by item. However, the legally binding duties in the Bill, which we have already debated in relation to previous clauses, apply to categories of content and to putting in place “proportionate systems and processes”—I think that that is the phrase used. Therefore, although the definition is particular, the duty is more general, and has to be met by putting in place systems and processes. I hope that my explanation provides clarification on that point.

The shadow Minister asked another question about the precise definitions of how the platforms are supposed to decide whether content meets the definition set out. She asked, in particular, questions about how to determine intent—the mens rea element of the offence. She mentioned that Ofcom had had some comments in that regard. Of course, the Government are discussing all this closely with Ofcom, as people would expect. I will say to the Committee that we are listening very carefully to the points that are being made. I hope that that gives the shadow Minister some assurance that the Government’s ears are open on this point.

The next and final point that I would like to come to was raised by all speakers in the debate, but particularly by my right hon. Friend the Member for Basingstoke, and is about violence against women and girls—an important point that we have quite rightly debated previously and come to again now. The first general point to make is that clause 52(4)(d) makes it clear that relevant offences include offences where the intended victim is an individual, so any violence towards and abuse of women and girls is obviously included in that.

As my right hon. Friend the Member for Basingstoke and others have pointed out, women suffer disproportionate abuse and are disproportionately the victims of criminal offences online. The hon. Member for Aberdeen North pointed out how a combination of protected characteristics can make the abuse particularly impactful—for example, if someone is a woman and a member of a minority. Those are important and valid points. I can reconfirm, as I did in our previous debate, that when Ofcom drafts the codes of practice on how platforms can meet their duties, it is at liberty to include such considerations. I echo the words spoken a few minutes ago by my right hon. Friend the Member for Basingstoke: the strong expectation across the House—among all parties here—is that those issues will be addressed in the codes of practice to ensure that those particular vulnerabilities and those compounded vulnerabilities are properly looked at by social media firms in discharging those duties.

My right hon. Friend also made points about intimate image abuse when the intimate images are made without the consent of the subject—the victim, I should say. I would make two points about that. The first relates to the Bill and the second looks to the future and the work of the Law Commission. On the Bill, we will come in due course to clause 150, which relates to the new harmful communications offence, and which will criminalise a communication—the sending of a message—when there is a real and substantial risk of it causing harm to the likely audience and there is intention to cause harm. The definition of “harm” in this case is psychological harm amounting to at least serious distress.

Clearly, if somebody is sending an intimate image without the consent of the subject, it is likely that that will cause harm to the likely audience. Obviously, if someone sends a naked image of somebody without their consent, that is very likely to cause serious distress, and I can think of few reasons why somebody would do that unless it was their intention, meaning that the offence would be made out under clause 150.

My right hon. Friend has strong feelings, which I entirely understand, that to make the measure even stronger the test should not involve intent at all, but should simply be a question of consent. Was there consent or not? If there was no consent, an offence would have been committed, without needing to go on to establish intention as clause 150 provides. As my right hon. Friend has said, Law Commission proposals are being developed. My understanding is that the Ministry of Justice, which is the Department responsible for this offence, is expecting to receive a final report, I am told, over the summer. It would then clearly be open to Parliament to legislate to put the offence into law, I hope as quickly as possible.

Once that happens, through whichever legislative vehicle, it will have two implications. First, the offence will automatically and immediately be picked up by clause 52(4)(d) and brought within the scope of the Bill because it is an offence where the intended victim is an individual. Secondly, there will be a power for the Secretary of State and for Parliament, through clause 176, I think—I am speaking from memory; yes, it is clause 176, not that I have memorised every clause in the Bill—via statutory instrument not only to bring the offence into the regular illegal safety duties, but to add it to schedule 7, which contains the priority offences.

Once that intimate image abuse offence is in law, via whichever legislative vehicle, that will have that immediate effect with respect to the Bill, and by statutory instrument it could be made a priority offence. I hope that gives my right hon. Friend a clear sense of the process by which this is moving forward.

[Dame Maria Miller]

I thank the Minister for such a clear explanation of his plan. Can he confirm that the Bill is a suitable legislative vehicle? I cannot see why it would not be. I welcome his agreement about the need for additional legislation over and above the communications offence. In the light of the way that nudification software and deepfake are advancing, and the challenges that our law enforcement agencies have in interpreting those quite complex notions, a straightforward law making it clear that publishing such images is a criminal offence would not only help law enforcement agencies, but would help the perpetrators to understand that what they are doing is a crime and they should stop.

[Chris Philp]

As always, the right hon. Lady makes an incredibly powerful point. She asked specifically about whether the Bill is a suitable legislative vehicle in which to implement any Law Commission recommendations—we do not yet have the final version of that report—and I believe that that would be in scope. A decision about legislative vehicles depends on the final form of the Law Commission report and the Ministry of Justice response to it, and on cross-Government agreement about which vehicle to use.

I hope that addresses all the questions that have been raised by the Committee. Although the shadow Minister is right to raise the question, I respectfully ask her to withdraw amendment 61 on the basis that those matters are clearly covered in clause 52(9). I commend the clause to the Committee.

[Alex Davies-Jones]

I am grateful to the Minister for his comments. The Labour party has concerns that clause 52(9) does not adequately get rid of the ambiguity around potential illegal online content. We feel that amendment 61 sets that out very clearly, which is why we will press it to a vote.

[Chris Philp]

Just to help the Committee, what is it in clause 52(9) that is unclear or ambiguous?

[Alex Davies-Jones]

We just feel that amendment 61 outlines matters much more explicitly and leaves no ambiguity by clearly defining any

“offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.”

[Chris Philp]

I think they say the same thing, but we obviously disagree.

Question put, That the amendment be made.

UK Digital Strategy

Chris Philp Excerpts

Monday 13th June 2022 Written Statements

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

I am pleased to lay before the House the UK’s Digital Strategy, a wide-reaching and inclusive statement of the Government’s vision for the future of the UK’s digital economy. The digital strategy harnesses our strengths in knowledge and R&D-intensive industries to further our position as a global science and technology superpower, and support the UK’s future prosperity and security.



This is a cross-Government strategy which aims to bring cohesion to the various important digital policies being driven by different parts of Government. Bringing these initiatives together in one place enables us to take the Government’s vision of the digital economy and turn it into reality by exploring new technological frontiers and delivering tech innovation on a scale the country has not previously seen.



This Government champion the UK as a global hub for digital talent and growth. Data suggests that, last year, a new UK unicorn was created every 11 and a half days, with £27.4 billion of private capital flowing into UK tech in 2021. That is more than any other European country. We are committed to continuing to support our fantastic venture capital investment initiatives such as the enterprise investment scheme and the seed investment scheme to ensure that UK companies continue to grow and raise capital to scale up.



The UK is presented with an important opportunity to draw on our position as a world leader in emerging fields such as AI, advanced semiconductor design and quantum computing to become a force for digital good on the global stage. The digital strategy makes clear our intention to work toward a global consensus with like-minded partners and allies to shape a system of digital standards and trade that enables UK businesses to innovate and thrive. We have the opportunity to build on our status as a science and technology superpower, to take advantage of our regulatory freedom, and to champion the dynamic businesses and start-ups that have helped make Britain a focal point for digital skills and innovation.



As well as championing the UK as a global digital hub, the Government also recognise the power of digital technology to transform our own economy, boost jobs and help to level up regions across the UK. Britain’s digital might has given us the flexibility to adapt to unprecedented challenges, such as the covid-19 pandemic, and will be vital in our fight against climate change. Indeed, the UK’s economic future, our security, our standard of living and our place in the world are all reliant on our continued success in digital technology. We can take steps now to futureproof our economy, to invest in developing world-class expertise, to build our evidence base, to boost innovation, to grow employment opportunities across the UK and to strengthen transnational ties.



The future of our economy, of UK jobs, of every region of the country, is digital. Over 80% of all jobs advertised require digital skills, and the rate of tech gross value added has grown on average by 7% per year since 2016. It is vital that we equip businesses and citizens with the skills and tools they need to navigate this rapid change. That means not only rolling out world-class digital infrastructure across the UK, but also ensuring that the benefits of the digital economy are felt by all members of society.

A copy of the UK Digital Strategy will be placed in the Libraries of both Houses.

[HCWS90]

Online Safety Bill (Seventh sitting)

Chris Philp Excerpts

Committee stage
Thursday 9th June 2022 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clause 27 stand part.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

Good morning, Ms Rees. It is a pleasure to serve once again under your chairmanship. I wondered whether the shadow Minister, the hon. Member for Pontypridd, wanted to speak first—I am always happy to follow her, if she would prefer that.

[Alex Davies-Jones (Pontypridd) (Lab)]

Always chivalrous!

[Chris Philp]

I do my best.

Clauses 17 and 27 have similar effects, the former applying to user-to-user services and the latter to search services. They set out an obligation on the companies to put in place effective and accessible content reporting mechanisms, so that users can report issues. The clauses will ensure that service providers are made aware of illegal and harmful content on their sites. In relation to priority illegal content, the companies must proactively prevent it in the first place, but in the other areas, they may respond reactively as well.

The clause will ensure that anyone who wants to report illegal or harmful content can do so in a quick and reasonable way. We are ensuring that everyone who needs to do that will be able to do so, so the facility will be open to those who are affected by the content but who are not themselves users of the site. For example, that might be non-users who are the subject of the content, such as a victim of revenge pornography, or non-users who are members of a specific group with certain characteristics targeted by the content, such as a member of the Jewish community reporting antisemitic content. There is also facility for parents and other adults with caring responsibility for children, and adults caring for another adult, to report content. Clause 27 sets out similar duties in relation to search. I commend the clauses to the Committee.

--- Later in debate ---

[Kirsty Blackman]

I want to raise an additional point about content reporting and complaints procedures. I met with representatives of Mencap yesterday, who raised the issue of the accessibility of the procedures that are in place. I appreciate that the Bill talks about procedures being accessible, but will the Minister give us some comfort about Ofcom looking at the reporting procedures that are in place, to ensure that adults with learning disabilities in particular can access those content reporting and complaints procedures, understand them and easily find them on sites?

That is a specific concern that Mencap raised on behalf of its members. A number of its members will be users of sites such as Facebook, but may find it more difficult than others to access and understand the procedures that are in place. I appreciate that, through the Bill, the Minister is making an attempt to ensure that those procedures are accessible, but I want to make sure they are accessible not just for the general public but for children, who may need jargon-free access to content reporting and complaints procedures, and for people with learning disabilities, who may similarly need jargon-free, easy-to-understand and easy-to-find access to those procedures.

[Chris Philp]

Let me try to address some of the questions that have been raised in this short debate, starting with the question that the hon. Member for Aberdeen North quite rightly asked at the beginning. She posed the question, “What if somebody who is not an affected person encountered some content and wanted to report it?” For example, she might encounter some racist content on Twitter or elsewhere and would want to be able to report it, even though she is not herself the target of it or necessarily a member of the group affected. I can also offer the reassurance that my hon. Friend the Member for Wolverhampton North East asked for.

The answer is to be found in clause 17(2), which refers to

“A duty to operate a service using systems and processes that allow users and”—

I stress “and”—“affected persons”. As such, the duty to offer content reporting is to users and affected persons, so if the hon. Member for Aberdeen North was a user of Twitter but was not herself an affected person, she would still be able to report content in her capacity as a user. I hope that provides clarification.

[Kirsty Blackman]

I appreciate that. That is key, and I am glad that this is wider than just users of the site. However, taking Reddit as an example, I am not signed up to that site, but I could easily stumble across content on it that was racist in nature. This clause would mean that I could not report that content unless I signed up to Reddit, because I would not be an affected person or a user of that site.

[Chris Philp]

I thank the hon. Lady for her clarificatory question. I can confirm that in order to be a user of a service, she would not necessarily have to sign up to it. The simple act of browsing that service, of looking at Reddit—not, I confess, an activity that I participate in regularly—regardless of whether or not the hon. Lady has an account with it, makes her a user of that service, and in that capacity she would be able to make a content report under clause 17(2) even if she were not an affected person. I hope that clears up the question in a definitive manner.

The hon. Lady asked in her second speech about the accessibility of the complaints procedure for children. That is strictly a matter for clause 18, which is the next clause, but I will quickly answer her question. Clause 18 contains provisions that explicitly require the complaints process to be accessible. Subsection (2)(c) states that the complaints procedure has to be

“easy to access, easy to use (including by children) and transparent”,

so the statutory obligation that she requested is there in clause 18.

[Kirsty Blackman]

Can the Minister explain the logic in having that phrasing for the complaints procedure but not for the content-reporting procedure? Surely it would also make sense for the content reporting procedure to use the phrasing

“easy to access, easy to use (including by children) and transparent.”

[Chris Philp]

There is in clause 17(2)

“a duty to operate a service that allows users and affected persons to easily report content which they consider to be content of a…kind specified below”,

which, of course, includes services likely to be accessed by children, under subsection (4). The words “easily report” are present in clause 17(2).

I will move on to the question of children reporting more generally, which the shadow Minister raised as well. Clearly, a parent or anyone with responsibility for a child has the ability to make a report, but it is also worth mentioning the power in clauses 140 to 142 to make super-complaints, which the NSPCC strongly welcomed its evidence. An organisation that represents a particular group—an obvious example is the NSPCC representing children, but it would apply to loads of other groups—has the ability to make super-complaints to Ofcom on behalf of those users, if it feels they are not being well treated by a platform. A combination of the parent or carer being able to make individual complaints, and the super-complaint facility, means that the points raised by Members are catered for. I commend the clause to the Committee.

Question put and agreed to.

Clause 17 accordingly ordered to stand part of the Bill.

Clause 18

Duties about complaints procedures

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 78, in clause 28, page 28, line 28, leave out “affected” and replace with “any other”

This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider to be illegal.

Amendment 79, in clause 28, page 28, line 30, leave out “affected” and replace with “any other”

This amendment allows those who do not fit the definition of “affected person” to make a complaint about search content which they consider not to comply with sections 24, 27 or 29.

Clause 28 stand part.

New clause 1—Report on redress for individual complaints—

“(1) The Secretary of State must publish a report assessing options for dealing with appeals about complaints made under—

(a) section 18; and

(b) section 28

(2) The report must—

(a) provide a general update on the fulfilment of duties about complaints procedures which apply in relation to all regulated user-to-user services and regulated search services;

(b) assess which body should be responsible for a system to deal with appeals in cases where a complainant considers that a complaint has not been satisfactorily dealt with; and

(c) provide options for how the system should be funded, including consideration of whether an annual surcharge could be imposed on user-to-user services and search services.

(3) The report must be laid before Parliament within six months of the commencement of this Act.”

--- Later in debate ---

[Shaun Bailey (West Bromwich West) (Con)]

It is a pleasure to see you in the Chair, Ms Rees, and to make my first contribution in Committee—it will be a brief one. It is great to follow the hon. Member for Aberdeen North, and I listened intently to my right hon. Friend the Member for Basingstoke, from whom I have learned so much having sat with her in numerous Committees over the past two years.

I will speak to clause 18 stand part, in particular on the requirements of the technical specifications that the companies will need to use to ensure that they fulfil the duties under the clause. The point, which has been articulated well by numerous Members, is that we can place such a duty on service providers, but we must also ensure that the technical specifications in their systems allow them to follow through and deliver on it.

I sat in horror during the previous sitting as I listened to the hon. Member for Pontypridd talking about the horrendous abuse that she has to experience on Twitter. What that goes to show is that, if the intention of this clause and the Bill are to be fulfilled, we must ensure that the companies enable themselves to have the specifications in their systems on the ground to deliver the requirements of the Bill. That might mean that the secondary legislation is slightly more prescriptive about what those systems look like.

It is all well and good us passing primary legislation in this place to try to control matters, but my fear is that if those companies do not have systems such that they can follow through, there is a real risk that what we want will not materialise. As we proceed through the Bill, there will be mechanisms to ensure that that risk is mitigated, but the point that I am trying to make to my hon. Friend the Minister is that we should ensure that we are on top of this, and that companies have the technical specifications in their complaints procedures to meet the requirements under clause 18.

We must ensure that we do not allow the excuse, “Oh, well, we’re a bit behind the times on this.” I know that later clauses seek to deal with that, but it is important that we do not simply fall back on excuses. We must embed a culture that allows the provisions of the clause to be realised. I appeal to the Minister to ensure that we deal with that and embed a culture that looks at striding forward to deal with complaints procedures, and that these companies have the technical capabilities on the ground so that they can deal with these things swiftly and in the right way. Ultimately, as my right hon. Friend the Member for Basingstoke said, it is all well and good us making these laws, but it is vital that we ensure that they can be applied.

[Chris Philp]

Let me address some of the issues raised in the debate. First, everyone in the House recognises the enormous problem at the moment with large social media firms receiving reports about harmful and even illegal content that they just flagrantly ignore. The purpose of the clause, and indeed of the whole Bill and its enforcement architecture, is to ensure that those large social media firms no longer ignore illegal and harmful content when they are notified about it. We agree unanimously on the importance of doing that.

The requirement for those firms to take the proper steps is set out in clause 18(2)(b), at the very top of page 18 —it is rather depressing that we are on only the 18th of a couple of hundred pages. That paragraph creates a statutory duty for a social media platform to take “appropriate action”—those are the key words. If the platform is notified of a piece of illegal content, or content that is harmful to children, or of content that it should take down under its own terms and conditions if harmful to adults, then it must do so. If it fails to do so, Ofcom will have the enforcement powers available to it to compel—ultimately, escalating to a fine of up to 10% of global revenue or even service disconnection.

[Kirsty Blackman]

Will the Minister give way?

--- Later in debate ---

[Chris Philp]

Let me develop the point before I give way. Our first line of defence is Ofcom enforcing the clause, but we have a couple of layers of additional defence. One of those is the super-complaints mechanism, which I have mentioned before. If a particular group of people, represented by a body such as the NSPCC, feel that their legitimate complaints are being infringed systemically by the social media platform, and that Ofcom is failing to take the appropriate action, they can raise that as a super-complaint to ensure that the matter is dealt with.

[Barbara Keeley]

Will the Minister give way?

[Chris Philp]

I should give way to the hon. Member for Aberdeen North first, and then I will come to the shadow Minister.

[Kirsty Blackman]

I wanted to ask specifically about the resourcing of Ofcom, given the abilities that it will have under this clause. Will Ofcom have enough resource to be able to be that secondary line of defence?

[Chris Philp]

A later clause gives Ofcom the ability to levy the fees and charges it sees as necessary and appropriate to ensure that it can deliver the duties. Ofcom will have the power to set those fees at a level to enable it to do its job properly, as Parliament would wish it to do.

[Barbara Keeley]

This is the point about individual redress again: by talking about super-complaints, the Minister seems to be agreeing that it is not there. As I said earlier, for super-complaints to be made to Ofcom, the issue has to be of particular importance or to impact a particularly large number of users, but that does not help the individual. We know how much individuals are damaged; there must be a system of external redress. The point about internal complaints systems is that we know that they are not very good, and we require a big culture change to change them, but unless there is some mechanism thereafter, I cannot see how we are giving the individual any redress—it is certainly not through the super-complaints procedure.

[Chris Philp]

As I said explicitly a few moments ago, the hon. Lady is right to point out the fact that the super-complaints process is to address systemic issues. She is right to say that, and I think I made it clear a moment or two ago.

Whether there should be an external ombudsman to enforce individual complaints, rather than just Ofcom enforcing against systemic complaints, is a question worth addressing. In some parts of our economy, we have ombudsmen who deal with individual complaints, financial services being an obvious example. The Committee has asked the question, why no ombudsman here? The answer, in essence, is a matter of scale and of how we can best fix the issue. The volume of individual complaints generated about social media platforms is just vast. Facebook in the UK alone has tens of millions of users—I might get this number wrong, but I think it is 30 million or 40 million users.

[Dame Maria Miller]

Will the Minister give way?

--- Later in debate ---

[Chris Philp]

I will in a moment. The volume of complaints that gets generated is vast. The way that we will fix this is not by having an external policeman to enforce on individual complaints, but by ensuring that the systems and processes are set up correctly to deal with problems at this large scale. [Interruption.] The shadow Minister, the hon. Member for Pontypridd, laughs, but it is a question of practicality. The way we will make the internet safe is to make sure that the systems and processes are in place and effective. Ofcom will ensure that that happens. That will protect everyone, not just those who raise individual complaints with an ombudsman.

[Several hon. Members rose—]

[Chris Philp]

I can see that there is substantial demand to comment, so I shall start by giving way to my right hon. Friend the Member for Basingstoke.

[Dame Maria Miller]

The Minister is doing an excellent job explaining the complex nature of the Bill. Ultimately, however, as he and I know, it is not a good argument to say that this is such an enormous problem that we cannot have a process in place to deal with it. If my hon. Friend looks back at his comments, he will see that that is exactly the point he was making. Although it is possibly not necessary with this clause, I think he needs to give some assurances that later in the Bill he will look at hypothecating some of the money to be generated from fines to address the issues of individual constituents, who on a daily basis are suffering at the hands of the social media companies. I apologise for the length of my intervention.

[Chris Philp]

It is categorically not the Government’s position that this problem is too big to fix. In fact, the whole purpose of this piece of groundbreaking and world-leading legislation is to fix a problem of such magnitude. The point my right hon. Friend was making about the hypothecation of fines to support user advocacy is a somewhat different one, which we will come to in due course, but there is nothing in the Bill to prevent individual groups from assisting individuals with making specific complaints to individual companies, as they are now entitled to do in law under clauses 17 and 18.

The point about an ombudsman is a slightly different one—if an individual complaint is made to a company and the individual complainant is dissatisfied with the outcome of their individual, particular and personal complaint, what should happen? In the case of financial services, if, for example, someone has been mis-sold a mortgage and they have suffered a huge loss, they can go to an ombudsman who will bindingly adjudicate that individual, single, personal case. The point that I am making is that having hundreds of thousands or potentially millions of cases being bindingly adjudicated on a case-by- case basis is not the right way to tackle a problem of this scale. The right way to tackle the problem is to force the social media companies, by law, to systemically deal with all of the problem, not just individual problems that may end up on an ombudsman’s desk.

That is the power in the Bill. It deals at a systems and processes level, it deals on an industry-wide level, and it gives Ofcom incredibly strong enforcement powers to make sure this actually happens. The hon. Member for Pontypridd has repeatedly called for a systems and processes approach. This is the embodiment of such an approach and the only way to fix a problem of such magnitude.

[Kim Leadbeater]

I associate myself with the comments of the right hon. Member for Basingstoke. Surely, if we are saying that this is such a huge problem, that is an argument for greater stringency and having an ombudsman. We cannot say that this is just about systems. Of course it is about systems, but online harms—we have heard some powerful examples of this—are about individuals, and we have to provide redress and support for the damage that online harms do to them. We have to look at systemic issues, as the Minister is rightly doing, but we also have to look at individual cases. The idea of an ombudsman and greater support for charities and those who can support victims of online crime, as mentioned by the hon. Member for Aberdeen North, is really important.

[Chris Philp]

I thank the hon. Lady for her thoughtful intervention. There are two separate questions here. One is about user advocacy groups helping individuals to make complaints to the companies. That is a fair point, and no doubt we will debate it later. The ombudsman question is different; it is about whether to have a right of appeal against decisions by social media companies. Our answer is that, rather than having a third-party body—an ombudsman—effectively acting as a court of appeal against individual decisions by the social media firms, because of the scale of the matter, the solution is to compel the firms, using the force of law, to get this right on a systemic and comprehensive basis.

[Kirsty Blackman]

rose—

[Alex Davies-Jones]

rose—

[Chris Philp]

I give way first to the hon. Member for Aberdeen North—I think she was first on her feet—and then I will come to the hon. Member for Pontypridd.

[Kirsty Blackman]

Does the Minister not think this is going to work? He is creating this systems and processes approach, which he suggests will reduce the thousands of complaints—complaints will be made and complaints procedures will be followed. Surely, if it is going to work, in 10 years’ time we are going to need an ombudsman to adjudicate on the individual complaints that go wrong. If this works in the way he suggests, we will not have tens of millions of complaints, as we do now, but an ombudsman would provide individual redress. I get what he is arguing, but I do not know why he is not arguing for both things, because having both would provide the very best level of support.

[Chris Philp]

I will address the review clause now, since it is relevant. If, in due course, as I hope and expect, the Bill has the desired effect, perhaps that would be the moment to consider the case for an ombudsman. The critical step is to take a systemic approach, which the Bill is doing. That engages the question of new clause 1, which would create a mechanism, probably for the reason the hon. Lady just set out, to review how things are going and to see if, in due course, there is a case for an ombudsman, once we see how the Bill unfolds in practice.

[Jane Stevenson]

Will the Minister give way?

[Chris Philp]

Let me finish the point. It is not a bad idea to review it and see how it is working in practice. Clause 149 already requires a review to take place between two and four years after Royal Assent. For the reasons that have been set out, it is pretty clear from this debate that we would expect the review to include precisely that question. If we had an ombudsman on day one, before the systems and processes had had a chance to have their effect, I fear that the ombudsman would be overwhelmed with millions of individual issues. The solution lies in fixing the problem systemically.

[Several hon. Members rose—]

[Chris Philp]

I think the shadow Minister wanted to intervene, unless I have answered her point already.

[Alex Davies-Jones]

I wanted to reiterate the point that the hon. Member for Aberdeen North made, which the Minister has not answered. If he has such faith that the systems and processes will be changed and controlled by Ofcom as a result of the Bill, why is he so reluctant to put in an ombudsman? It will not be overwhelmed with complaints if the systems and processes work, and therefore protect victims. We have already waited far too long for the Bill, and now he says that we need to wait two to four years for a review, and even longer to implement an ombudsman to protect victims. Why will he not just put this in the Bill now to keep them safe?

[Chris Philp]

Because we need to give the new systems and processes time to take effect. If the hon. Lady felt so strongly that an ombudsman was required, she was entirely at liberty to table an amendment to introduce one, but she has not done so.

[Jane Stevenson]

I wonder whether Members would be reassured if companies were required to have a mechanism by which users could register their dissatisfaction, to enable an ombudsman, or perhaps Ofcom, to gauge the volume of dissatisfaction and bring some kind of group claim against the company. Is that a possibility?

[Chris Philp]

Yes. My hon. Friend hits the nail on the head. If there is a systemic problem and a platform fails to act appropriately not just in one case, but in a number of them, we have, as she has just described, the super-complaints process in clauses 140 to 142. Even under the Bill as drafted, without any changes, if a platform turns out to be systemically ignoring reasonable complaints made by the public and particular groups of users, the super-complainants will be able to do exactly as she describes. There is a mechanism to catch this—it operates not at individual level, but at the level of groups of users, via the super-complaint mechanism—so I honestly feel that the issue has been addressed.

When the numbers are so large, I think that the super-complaint mechanism is the right way to push Ofcom if it does not notice. Obviously, the first line of defence is that companies comply with the Bill. The second line of defence is that if they fail to do so, Ofcom will jump on them. The third line of defence is that if Ofcom somehow does not notice, a super-complaint group—such as the NSPCC, acting for children—will make a super-complaint to Ofcom. We have three lines of defence, and I submit to the Committee that they are entirely appropriate.

[Barbara Keeley]

Will the Minister give way?

[Chris Philp]

I was about to sit down, but of course I will give way.

[Barbara Keeley]

The Minister said that the Opposition had not tabled an amendment to bring in an ombudsman.

[Chris Philp]

On this clause.

[Barbara Keeley]

On this clause. What we have done, however—we are debating it now—is to table a new clause to require a report on redress for individual complaints. The Minister talks about clause 149 and a process that will kick in between two and five years away, but we have a horrendous problem at the moment. I and various others have described the situation as the wild west, and very many people—thousands, if not millions, of individuals—are being failed very badly. I do not see why he is resisting our proposal for a report within six months of the commencement of the Act, which would enable us to start to see at that stage, not two to five years down the road, how these systems—he is putting a lot of faith in them—were turning out. I think that is a very sound idea, and it would help us to move forward.

[Chris Philp]

The third line of defence—the super-complaint process—is available immediately, as I set out a moment ago. In relation to new clause 1, which the hon. Lady mentioned a moment ago, I think six months is very soon for a Bill of this magnitude. The two-to-five-year timetable under the existing review mechanism in clause 149 is appropriate.

Although we are not debating clause 149, I hope, Ms Rees, that you will forgive me for speaking about it for a moment. If Members turn to pages 125 and 126 and look at the matters covered by the review, they will see that they are extraordinarily comprehensive. In effect, the review covers the implementation of all aspects of the Bill, including the need to minimise the harms to individuals and the enforcement and information-gathering powers. It covers everything that Committee members would want to be reviewed. No doubt as we go through the Bill we will have, as we often do in Bill Committee proceedings, a number of occasions on which somebody tables an amendment to require a review of x, y or z. This is the second such occasion so far, I think, and there may be others. It is much better to have a comprehensive review, as the Bill does via the provisions in clause 149.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19

Duties about freedom of expression and privacy

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 29 stand part.

[Chris Philp]

Clause 19, on user-to-user services, and its associated clause 29, which relates to search services, specify a number of duties in relation to freedom of expression and privacy. In carrying out their safety duties, in-scope companies will be required by clause 19(2) to have regard to the importance of protecting users’ freedom of expression and privacy.

Let me pause for a moment on this issue. There has been some external commentary about the Bill’s impact on freedom of expression. We have already seen, via our discussion of a previous clause, that there is nothing in the Bill that compels the censorship of speech that is legal and not harmful to children. I put on the record again the fact that nothing in the Bill requires the censorship of legal speech that poses no harm to children.

We are going even further than that. As far as I am aware, for the first time ever there will be a duty on social media companies, via clause 19(2), to have regard to freedom of speech. There is currently no legal duty at all on platforms to have regard to freedom of speech. The clause establishes, for the first time, an obligation to have regard to freedom of speech. It is critical that not only Committee members but others more widely who consider the Bill should bear that carefully in mind. Besides that, the clause speaks to the right to privacy. Existing laws already speak to that, but the clause puts it in this Bill as well. Both duties are extremely important.

In addition, category 1 service providers—the really big ones—will need proactively to assess the impact of their policies on freedom of expression and privacy. I hope all Committee members will strongly welcome the important provisions I have outlined.

[Barbara Keeley]

As the Minister says, clauses 19 and 29 are designed to provide a set of balancing provisions that will require companies to have regard to freedom of expression and privacy when they implement their safety duties. However, it is important that companies cannot use privacy and free expression as a basis to argue that they can comply with regulation in less substantive ways. That is a fear here.

Category 1 providers will need to undertake an impact assessment to determine the impact of their product and safety decisions on freedom of expression, but it is unclear whether that applies only in respect of content that is harmful to adults. Unlike with the risk assessments for the illegal content and child safety duties set out in part 3, chapter 2, these clauses do not set expectations about whether risk assessments are of a suitable and sufficient quality. It is also not clear what powers Ofcom has at its disposal to challenge any assessments that it considers insufficient or that reach an inappropriate or unreasonable assessment of how to balance fundamental rights. I would appreciate it if the Minister could touch on that when he responds.

The assumption underlying these clauses is that privacy and free expression may need to act as a constraint on safety measures, but I believe that that is seen quite broadly as simplistic and potentially problematic. To give one example, a company could argue that end-to-end encryption is important for free expression, and privacy could justify any adverse impact on users’ safety. The subjects of child abuse images, which could more easily be shared because of such a decision, would see their safety and privacy rights weakened. Such an argument fails to take account of the broader nuance of the issues at stake. Impacts on privacy and freedom of expression should therefore be considered across a range of groups rather than assuming an overarching right that applies equally to all users.

Similarly, it will be important that Ofcom understands and delivers its functions in relation to these clauses in a way that reflects the complexity and nuance of the interplay of fundamental rights. It is important to recognise that positive and negative implications for privacy and freedom of expression may be associated with any compliance decision. I think the Minister implied that freedom of speech was a constant positive, but it can also have negative connotations.

[Kirsty Blackman]

I am pleased that the clause is in the Bill, and I think it is a good one to include. Can the Minister reaffirm what he said on Tuesday about child sexual abuse, and the fact that the right to privacy does not trump the ability—particularly with artificial intelligence—to search for child sexual abuse images?

[Chris Philp]

I confirm what the hon. Lady has just said. In response to the hon. Member for Worsley and Eccles South, it is important to say that the duty in clause 19 is “to have regard”, which simply means that a balancing exercise must be performed. It is not determinative; it is not as if the rights in the clause trump everything else. They simply have to be taken into account when making decisions.

To repeat what we discussed on Tuesday, I can explicitly and absolutely confirm to the hon. Member for Aberdeen North that in my view and the Government’s, concerns about freedom of expression or privacy should not trump platforms’ ability to scan for child sexual exploitation and abuse images or protect children. It is our view that there is nothing more important than protecting children from exploitation and sexual abuse.

We may discuss this further when we come to clause 103, which develops the theme a little. It is also worth saying that Ofcom will be able to look at the risk assessments and, if it feels that they are not of an adequate standard, take that up with the companies concerned. We should recognise that the duty to have regard to freedom of expression is not something that currently exists. It is a significant step forward, in my view, and I commend clauses 19 and 29 to the Committee.

[The Chair]

With your indulgence, Minister, Nick Fletcher would like to speak.

--- Later in debate ---

[Chris Philp]

As I have said, at the moment there is nothing at all. Platforms such as Facebook can and do arbitrarily censor content with little if any regard for freedom of speech. Some platforms have effectively cancelled Donald Trump while allowing the Russian state to propagate shocking disinformation about the Russian invasion of Ukraine, so there is real inconsistency and a lack of respect for freedom of speech. This at least establishes something where currently there is nothing. We can debate whether “have regard to” is strong enough. We have heard the other point of view from the other side of the House, which expressed concern that it might be used to allow otherwise harmful content, so there are clearly arguments on both sides of the debate. The obligation to have regard does have some weight, because the issue cannot be completely ignored. I do not think it would be adequate to simply pay lip service to it and not give it any real regard, so I would not dismiss the legislation as drafted.

I would point to the clauses that we have recently discussed, such as clause 15, under which content of democratic importance—which includes debating current issues and not just stuff said by an MP or candidate—gets additional protection. Some of the content that my hon. Friend the Member for Don Valley referred to a second ago would probably also get protection under clause 14, under which content of democratic importance has to be taken in account when making decisions about taking down or removing particular accounts. I hope that provides some reassurance that this is a significant step forwards compared with where the internet is today.

[Alex Davies-Jones]

I share the Minister’s sentiments about the Bill protecting free speech; we all want to protect that. He mentions some of the clauses we debated on Tuesday regarding democratic importance. Some would say that debating this Bill is of democratic importance. Since we started debating the Bill on Tuesday, and since I have mentioned some of the concerns raised by stakeholders and others about the journalistic exemption and, for example, Tommy Robinson, my Twitter mentions have been a complete sewer—as everyone can imagine. One tweet I received in the last two minutes states:

“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”

in this country. Does the Minister agree that that is content of democratic importance, given we are debating this Bill, and that it should remain on Twitter?

[Chris Philp]

That sounds like a very offensive tweet. Could the hon. Lady read it again? I didn’t quite catch it.

[Alex Davies-Jones]

Yes:

“I saw your vicious comments on Tommy Robinson…The only reason you want to suppress him is to bury the Pakistani Muslim rape epidemic”

in this country. It goes on:

“this is a toxic combination of bloc vote grubbing and woke”

culture, and there is a lovely GIF to go with it.

[Chris Philp]

I do not want to give an off-the-cuff assessment of an individual piece of content—not least because I am not a lawyer. It does not sound like it meets the threshold of illegality. It most certainly is offensive, and that sort of matter is one that Ofcom will set out in its codes of practice, but there is obviously a balance between freedom of speech and content that is harmful, which the codes of practice will delve into. I would be interested if the hon. Lady could report that to Twitter and then report back to the Committee on what action it takes.

[Alex Davies-Jones]

Yes, I will do that right now and see what happens.

[Chris Philp]

At the moment, there is no legal obligation to do anything about it, which is precisely why this Bill is needed, but let us put it to the test.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Record-keeping and review duties

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 30 stand part.

--- Later in debate ---

[Chris Philp]

The shadow Minister has eloquently introduced the purpose and effect of the clause, so I shall not repeat what she has said. On her point about publication, I repeat the point that I made on Tuesday, which is that the transparency requirements—they are requirements, not options—set out in clause 64 oblige Ofcom to ensure the publication of appropriate information publicly in exactly the way she requests.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clauses 21 to 24 ordered to stand part of the Bill.

Clause 25

Children’s risk assessment duties

Amendment proposed: 16, in clause 25, page 25, line 10, at end insert—

“(3A) A duty for the children’s risk assessment to be approved by either—

(a) the board of the entity; or, if the organisation does not have a board structure,

(b) a named individual who the provider considers to be a senior manager of the entity, who may reasonably be expected to be in a position to ensure compliance with the children’s risk assessment duties, and reports directly into the most senior employee of the entity.” —(Alex Davies-Jones.)

This amendment seeks to ensure that regulated companies’ boards or senior staff have responsibility for children’s risk assessments.

--- Later in debate ---

[Kirsty Blackman]

I absolutely agree. In fact, I have tabled an amendment to widen category 1 to include sites with the highest risk of harm. The Minister has not said that he agrees with my amendment specifically, but he seems fairly amenable to increasing and widening some duties to include the sites of highest risk. I have also tabled another new clause on similar issues.

I am glad that these clauses are in the Bill—a specific duty in relation to children is important and should happen—but as the shadow Minister said, clause 31(3) is causing difficulty. It is causing difficulty for me and for organisations such as the NSPCC, which is unsure how the provisions will operate and whether they will do so in the way that the Government would like.

I hope the Minister will answer some of our questions when he responds. If he is not willing to accept the amendment, will he give consideration to how the subsection could be amended in the future—we have more stages, including Report and scrutiny in the other place—to ensure that there is clarity and that the intention of the purpose is followed through, rather than being an intention that is not actually translated into law?

[Chris Philp]

Colleagues have spoken eloquently to the purpose and effect of the various clauses and schedule 3 —the stand part component of this group. On schedule 3, the shadow Minister, the hon. Member for Worsley and Eccles South, asked about timing. The Government share her desire to get this done as quickly as possible. In its evidence a couple of weeks ago, Ofcom said it would be publishing its road map before the summer, which would set out the timetable for moving all this forward. We agree that that is extremely important.

I turn to one or two questions that arose on amendment 22. As always, the hon. Member for Aberdeen North asked a number of very good questions. The first was whether the concept of a “significant number” applied to a number in absolute terms or a percentage of the people using a particular service, and which is looked at when assessing what is significant. The answer is that it can be either—either a large number in absolute terms, by reference to the population of the whole United Kingdom, or a percentage of those using the service. That is expressed in clause 31(4)(a). Members will note the “or” there. It can be a number in proportion to the total UK population or the proportion using a service. I hope that answers the hon. Member’s very good question.

[Kirsty Blackman]

My concern is where services that meet neither of those criteria—they do not meet the “significant number” criterion in percentage terms because, say, only 0.05% of their users are children, and they do not meet it in population terms, because they are a pretty small platform and only have, say, 1,000 child users—but those children who use the platform are at very high risk because of the nature of the platform or the service provided. My concern is for those at highest risk where neither of the criteria are met and the service does not have to bother conducting any sort of age verification or access requirements.

[Chris Philp]

I am concerned to ensure that children are appropriately protected, as the hon. Lady sets out. Let me make a couple of points in that area before I address that point.

The hon. Lady asked another question earlier, about video content. She gave the example of TikTok videos being viewed or accessed not directly on TikTok but via some third-party means, such as a WhatsApp message. First, it is worth emphasising again that in order to count as a user, a person does not have to be registered and can simply be viewing the content. Secondly, if someone is viewing something through another service, such as WhatsApp—the hon. Lady used the example of browsing the internet on another site—the duty will bite at the level of WhatsApp, and it will have to consider the content that it is providing access to. As I said, someone does not have to be registered with a service in order to count as a user of that service.

On amendment 22, there is a drafting deficiency, if I may put it politely—this is a point of drafting rather than of principle. The amendment would simply delete subsection (3), but there would still be references to the “child user condition”—for example, the one that appears on the same page of the Bill at line 11. If the amendment were adopted as drafted, it would end up leaving references to “child user condition” in the Bill without defining what it meant, because we would have deleted the definition.

[Barbara Keeley]

Is the Minister coming on to say that he is accepting what we are saying here?

[Chris Philp]

No, is the short answer. I was just mentioning in passing that there is that drafting issue.

On the principle, it is worth being very clear that, when it comes to content or matters that are illegal, that applies to all platforms, regardless of size, where children are at all at risk. In schedule 6, we set out a number of matters—child sexual exploitation and abuse, for example—as priority offences that all platforms have to protect children from proactively, regardless of scale.

--- Later in debate ---

[Barbara Keeley]

The Minister has not addressed the points I raised. I specifically raised—he has not touched on this—harmful pro-anorexia blogs, which we know are dangerous but are not in scope, and games that children access that increase gambling addiction. He says that there is separate legislation for gambling addiction, but families have lost thousands of pounds through children playing games linked to gambling addiction. There are a number of other services that do not affect an appreciable number of children, and the drafting causes them to be out of scope.

[Chris Philp]

rose—[Interruption.]

[The Chair]

There is no hard and fast rule about moving the Adjournment motion. It is up to the Government Whip.

[Chris Philp]

I have a few more things to say, but I am happy to finish here if it is convenient.

Ordered, That the debate be now adjourned.—(Steve Double.)

Online Safety Bill (Fifth sitting)

Chris Philp Excerpts

Committee stage
Tuesday 7th June 2022 Public Bill Committees

[The Chair]

Good morning, ladies and gentleman. If anybody wishes to take their jacket off, they are at liberty to do so when I am in the Chair—my co-Chairman is joining us, and I am sure she will adopt the same procedure. I have a couple of preliminary announcements. Please make sure that all mobile phones are switched off. Tea and coffee are not allowed in the Committee, I am afraid. I think they used to be available outside in the corridor, but I do not know whether that is still the case.

We now start line-by-line consideration of the Bill. The selection and grouping list for the sitting is available on the table in the room for anybody who does not have it. It shows how the clauses and selected amendments have been grouped for debate. Grouped amendments are generally on the same subject or a similar issue.

Now for a slight tutorial to remind me and anybody else who is interested, including anybody who perhaps has not engaged in this arcane procedure before, of the proceedings. Each group has a lead amendment, and that amendment is moved first. The other grouped amendments may be moved later, but they are not necessarily voted on at that point, because some of them relate to matters that appear later in the Bill. Do not panic; that does not mean that we have forgotten them, but that we will vote on them—if anybody wants to press them to a Division—when they are reached in order in the Bill. However, if you are in any doubt and feel that we have missed something—occasionally I do; the Clerks never do—just let us know. I am relaxed about this, so if anybody wants to ask a question about anything that they do not understand, please interrupt and ask, and we will endeavour to confuse you further.

The Member who has put their name to the lead amendment, and only the lead amendment, is usually called to speak first. At the end of the debate, the Minister will wind up, and the mover of the lead amendment—that might be the Minister if it is a Government amendment, or it might be an Opposition Member—will indicate whether they want a vote on that amendment. We deal with that first, then we deal with everything else in the order in which it arises. I hope all that is clear, but as I said, if there are any questions, please interrupt and ask.

We start consideration of the Bill with clause 1, to which there are no amendments. Usually, the Minister would wind up at the end of each debate, but as there are no amendments to clause 1, the Minister has indicated that he would like to say a few words about the clause.

Clause 1

Overview of Act

Question proposed, That the clause stand part of the Bill.

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Chris Philp)]

Thank you, Sir Roger; it is a pleasure to serve under your chairmanship once again. It may be appropriate to take this opportunity to congratulate my right hon. Friend the Member for Basingstoke on her damehood in the Queen’s birthday honours, which was very well deserved indeed.

This simple clause provides a high-level overview of the different parts of the Bill and how they come together to form the legislation.

[The Chair]

The Minister was completely out of order in congratulating the right hon. Lady, but I concur with him. I call the shadow Minister.

--- Later in debate ---

[Dan Carden]

This part of the Bill deals with the definitions of services and which services would be exempt. I consider myself a millennial; most people my age or older are Facebook and Twitter users, and people a couple of years younger might use TikTok and other services. The way in which the online space is used by different generations, particularly by young people, changes rapidly. Given the definitions in the Bill, how does the Minister intend to keep pace with the changing ways in which people communicate? Most online games now allow interaction between users in different places, which was not the case a few years ago. Understanding how the Government intend the Bill to keep up with such changes is important. Will the Minister tell us about that?

[Chris Philp]

Let me briefly speak to the purpose of these clauses and then respond to some of the points made in the debate.

As the shadow Minister, the hon. Member for Pontypridd, touched on, clauses 2 and 3 define some of the key terms in the Bill, including “user-to-user services” and “search services”—key definitions that the rest of the Bill builds on. As she said, schedule 1 and clause 4 contain specific exemptions where we believe the services concerned present very low risk of harm. Schedule 2 sets out exemptions relating to the new duties that apply to commercial providers of pornography. I thank the shadow Minister and my right hon. Friend the Member for Basingstoke for noting the fact that the Government have substantially expanded the scope of the Bill to now include commercial pornography, in response to widespread feedback from Members of Parliament across the House and the various Committees that scrutinised the Bill.

The shadow Minister is quite right to say that the number of platforms to which the Bill applies is very wide. [Interruption.] Bless you—or bless my hon. Friend the Member for North West Durham, I should say, Sir Roger, although he is near sanctified already. As I was saying, we are necessarily trying to protect UK users, and with many of these platforms not located in the UK, we are seeking to apply these duties to those companies as well as ones that are domestically located. When we come to discuss the enforcement powers, I hope the Committee will see that those powers are very powerful.

The shadow Minister, the hon. Member for Liverpool, Walton and others asked about future technologies and whether the Bill will accommodate technologies that we cannot even imagine today. The metaverse is a good example: The metaverse did not exist when the Bill was first contemplated and the White Paper produced. Actually, I think Snapchat did not exist when the White Paper that preceded the Bill was first conceived. For that reason, the Bill is tech agnostic. We do not talk about specific technologies; we talk about the duties that apply to companies and the harms they are obligated to prevent.

The whole Bill is tech agnostic because we as parliamentarians today cannot anticipate future developments. When those future developments arise, as they inevitably will, the duties under the Bill will apply to them as well. The metaverse is a good example, because even though it did not exist when the structure of the Bill was conceived, anything happening in the metaverse is none the less covered by the Bill. Anything that happens in the metaverse that is illegal or harmful to children, falls into the category of legal but harmful to adults, or indeed constitutes pornography will be covered because the Bill is tech agnostic. That is an extremely important point to make.

The hon. Member for Aberdeen North asked about gaming. Parents are concerned because lots of children, including quite young children, use games. My own son has started playing Minecraft even though he is very young. To the extent that those games have user-to-user features—for example, user-to-user messaging, particularly where those messages can be sent widely and publicly—those user-to-user components are within the scope of the Bill.

The hon. Member for Aberdeen North also asked about the App Store. I will respond quickly to her question now rather than later, to avoid leaving the Committee in a state of tingling anticipation and suspense. The App Store, or app stores generally, are not in the scope of the Bill, because they are not providing, for example, user-to-user services, and the functionality they provide to basically buy apps does not count as a search service. However, any app that is purchased in an app store, to the extent that it has either search functionality, user-to-user functionality or purveys or conveys pornography, is in scope. If an app that is sold on one of these app stores turns out to provide a service that breaks the terms of the Bill, that app will be subject to regulatory enforcement directly by Ofcom.

The hon. Members for Aberdeen North and for Liverpool, Walton touched on media literacy, noting that there has been a change to the Bill since the previous version. We will probably debate this later, so I will be brief. The Government published a media literacy strategy, backed by funding, to address this point. It was launched about a year ago. Ofcom also has existing statutory duties—arising under the Communications Act 2003, I believe. The critical change made since the previous draft of the Bill—it was made in December last year, I believe—is that Ofcom published an updated set of policy intentions around media literacy that went even further than we had previously intended. That is the landscape around media literacy.

--- Later in debate ---

[Chris Philp]

I am sure we will discuss this topic a bit more as the Bill progresses.

I will make a few points on disinformation. The first is that, non-legislatively, the Government have a counter-disinformation unit, which sits within the Department for Digital, Culture, Media and Sport. It basically scans for disinformation incidents. For the past two years it has been primarily covid-focused, but in the last three or four months it has been primarily Russia/Ukraine-focused. When it identifies disinformation being spread on social media platforms, the unit works actively with the platforms to get it taken down. In the course of the Russia-Ukraine conflict, and as a result of the work of that unit, I have personally called in some of the platforms to complain about the stuff they have left up. I did not have a chance to make this point in the evidence session, but when the person from Twitter came to see us, I said that there was some content on Russian embassy Twitter accounts that, in my view, was blatant disinformation—denial of the atrocities that have been committed in Bucha. Twitter had allowed it to stay up, which I thought was wrong. Twitter often takes down such content, but in that example, wrongly and sadly, it did not. We are doing that work operationally.

Secondly, to the extent that disinformation can cause harm to an individual, which I suspect includes a lot of covid disinformation—drinking bleach is clearly not very good for people—that would fall under the terms of the legal but harmful provisions in the Bill.

Thirdly, when it comes to state-sponsored disinformation of the kind that we know Russia engages in on an industrial scale via the St Petersburg Internet Research Agency and elsewhere, the Home Office has introduced the National Security Bill—in fact, it had its Second Reading yesterday afternoon, when some of us were slightly distracted. One of the provisions in that Bill is a foreign interference offence. It is worth reading, because it is very widely drawn and it criminalises foreign interference, which includes disinformation. I suggest the Committee has a look at the foreign interference offence in the National Security Bill.

[Alex Davies-Jones]

I am grateful for the Minister’s intervention in bringing in the platforms to discuss disinformation put out by hostile nation states. Does he accept that if Russia Today had put out some of that disinformation, the platforms would be unable to take such content down as a result of the journalistic exemption in the Bill?

[Chris Philp]

We will no doubt discuss in due course clauses 15 and 50, which are the two that I think the shadow Minister alludes to. If a platform is exempt from the duties of the Bill owing to its qualification as a recognised news publisher under clause 50, it removes the obligation to act under the Bill, but it does not prevent action. Social media platforms can still choose to act. Also, it is not a totally straightforward matter to qualify as a regulated news publisher under clause 50. We saw the effect of sanctions: when Russia Today was sanctioned, it was removed from many platforms as a result of the sanctioning process. There are measures outside the Bill, such as sanctions, that can help to address the shocking disinformation that Russia Today was pumping out.

The last point I want to pick up on was rightly raised by my right hon. Friend the Member for Basingstoke and the hon. Member for Aberdeen North. It concerns child sexual exploitation and abuse images, and particularly the ability of platforms to scan for those. Many images are detected as a result of scanning messages, and many paedophiles or potential paedophiles are arrested as a result of that scanning. We saw a terrible situation a little while ago, when—for a limited period, owing to a misconception of privacy laws—Meta, or Facebook, temporarily suspended scanning in the European Union; as a result, loads of images that would otherwise have been intercepted were not.

I agree with the hon. Member for Aberdeen North that privacy concerns, including end-to-end encryption, should not trump the ability of organisations to scan for child sexual exploitation and abuse images. Speaking as a parent—I know she is, too—there is, frankly, nothing more important than protecting children from sexual exploitation and abuse. Some provisions in clause 103 speak to this point, and I am sure we will debate those in more detail when we come to that clause. I mention clause 103 to put down a marker as the place to go for the issue being raised. I trust that I have responded to the points raised in the debate, and I commend the clause to the Committee.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

Clause 4 ordered to stand part of the Bill.

[The Chair]

Before we move on, we have raised the issue of the live feed. The audio will be online later today. There is a problem with the feed—it is reaching the broadcasters, but it is not being broadcast at the moment.

As we are not certain we can sort out the technicalities between now and this afternoon, the Committee will move to Committee Room 9 for this afternoon’s sitting to ensure that the live stream is available. Mr Double, if Mr Russell intends to be present—he may not; that is up to you—it would be helpful if you would let him know. Ms Blackman, if John Nicolson intends to be present this afternoon, would you please tell him that Committee Room 9 will be used?

It would normally be possible to leave papers and other bits and pieces in the room, because it is usually locked between the morning and afternoon sittings. Clearly, because we are moving rooms, you will all need to take your papers and laptops with you.

Clause 5

Overview of Part 3

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Dan Carden]

I want to add my voice to the calls for ways to monitor the success or failures of this legislation. We are starting from a position of self-regulation where companies write the rules and regulate themselves. It is right that we are improving on that, but with it comes further concerns around the powers of the Secretary of State and the effectiveness of Ofcom. As the issues are fundamental to freedom of speech and expression, and to the protection of vulnerable and young people, will the Minster consider how we better monitor whether the legislation does what it says on the tin?

[Chris Philp]

Clause 5 simply provides an overview of part 3 of the Bill. Several good points have been raised in the course of this discussion. I will defer replying to the substance of a number of them until we come to the relevant clause, but I will address two or three of them now.

The shadow Minister said that the Bill is a complex, and she is right; it is 193-odd clauses long and a world-leading piece of legislation. The duties that we are imposing on social media firms and internet companies do not already exist; we have no precedent to build on. Most matters on which Parliament legislates have been considered and dealt with before, so we build on an existing body of legislation that has been built up over decades or, in some cases in the criminal law, over centuries. In this case, we are constructing a new legislative edifice from the ground up. Nothing precedes this piece of legislation—we are creating anew—and the task is necessarily complicated by virtue of its novelty. However, I think we have tried to frame the Bill in a way that keeps it as straightforward and as future-proof as possible.

The shadow Minister is right to point to the codes of practice as the source of practical guidance to the public and to social media firms on how the obligations operate in practice. We are working with Ofcom to ensure that those codes of practice are published as quickly as possible and, where possible, prepared in parallel with the passage of the legislation. That is one reason why we have provided £88 million of up-front funding to Ofcom in the current and next financial years: to give it the financial resources to do precisely that.

My officials have just confirmed that my recollection of the Ofcom evidence session on the morning of Tuesday 24 May was correct: Ofcom confirmed to the Committee that it will publish, before the summer, what it described as a “road map” providing details on the timing of when and how those codes of practice will be created. I am sure that Ofcom is listening to our proceedings and will hear the views of the Committee and of the Government. We would like those codes of practice to be prepared and introduced as quickly as possible, and we certainly provided Ofcom with the resources to do precisely that.

There was question about the Scottish offences and, I suppose, about the Northern Irish offences as well—we do not want to forget any part of the United Kingdom.

[Alex Davies-Jones]

Hear, hear.

[Chris Philp]

We are in agreement on that. I can confirm that the Government have tabled amendments 116 to 126 —the Committee will consider them in due course—to place equivalent Scottish offences, which the hon. Member for Aberdeen North asked about, in the Bill. We have done that in close consultation with the Scottish Government to ensure that the relevant Scottish offences equivalent to the England and Wales offences are inserted into the Bill. If the Scottish Parliament creates any new Scottish offences that should be inserted into the legislation, that can be done under schedule 7 by way of statutory instrument. I hope that answers the question.

The other question to which I will briefly reply was about parliamentary scrutiny. The Bill already contains a standard mechanism that provides for the Bill to be reviewed after a two to five-year period. That provision appears at the end of the Bill, as we would expect. Of course, there are the usual parliamentary mechanisms—Backbench Business debates, Westminster Hall debates and so on—as well as the DCMS Committee.

I heard the points about a standing Joint Committee. Obviously, I am mindful of the excellent prelegislative scrutiny work done by the previous Joint Committee of the Commons and the Lords. Equally, I am mindful that standing Joint Committees, outside the regular Select Committee structure, unusual. The only two that spring immediately to mind are the Intelligence and Security Committee, which is established by statute, and the Joint Committee on Human Rights, chaired by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), which is established by Standing Orders of the House. I am afraid I am not in a position to make a definitive statement about the Government’s position on this. It is of course always open to the House to regulate its own businesses. There is nothing I can say today from a Government point of view, but I know that hon. Members’ points have been heard by my colleagues in Government.

We have gone somewhat beyond the scope of clause 5. You have been extremely generous, Sir Roger, in allowing me to respond to such a wide range of points. I commend clause 5 to the Committee.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Providers of user-to-user services: duties of care

[The Chair]

Before we proceed, perhaps this is the moment to explain what should happen and what is probably going to happen. Ordinarily, a clause is taken with amendments. This Chairman takes a fairly relaxed view of stand part debates. Sometimes it is convenient to have a very broad-ranging debate on the first group of amendments because it covers matters relating to the whole clause. The Chairman would then normally say, “Well, you’ve already had your stand part debate, so I’m not going to allow a further stand part debate.” It is up to hon. Members to decide whether to confine themselves to the amendment under discussion and then have a further stand part debate, or whether to go free range, in which case the Chairman would almost certainly say, “You can’t have a stand part debate as well. You can’t have two bites of the cherry.”

This is slightly more complex. It is a very complex Bill, and I think I am right in saying that it is the first time in my experience that we are taking other clause stand parts as part of the groups of amendments, because there is an enormous amount of crossover between the clauses. That will make it, for all of us, slightly harder to regulate. It is for that reason—the Minister was kind enough to say that I was reasonably generous in allowing a broad-ranging debate—that I think we are going to have to do that with this group.

I, and I am sure Ms Rees, will not wish to be draconian in seeking to call Members to order if you stray slightly outside the boundaries of a particular amendment. However, we have to get on with this, so please try not to be repetitive if you can possibly avoid it, although I accept that there may well be some cases where it is necessary.

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[Alex Davies-Jones]

That is a huge concern for us. As was brought up in our evidence sessions with Ofcom, it is recruiting, effectively, a fundraising officer for the regulator. That throws into question the potential longevity of the regulator’s funding and whether it is resourced effectively to properly scrutinise and regulate the online platforms. If that long-term resource is not available, how can the regulator effectively scrutinise and bring enforcement to bear against companies for enabling illegal activity?

[Chris Philp]

Just to reassure the shadow Minister and her hon. Friend the Member for Liverpool, Walton, the Bill confers powers on Ofcom to levy fees and charges on the sector that it is regulating—so, on social media firms—to recoup its costs. We will debate that in due course—I think it is in clause 71, but that power is in the Bill.

[Alex Davies-Jones]

I am grateful to the Minister for that clarification and I look forward to debating that further as the Bill progresses.

Returning to the senior managers and certificate regime in the financial services industry, it states that senior managers must be preapproved by the regulator, have their responsibilities set out in a statement of responsibilities and be subject to enhanced conduct standards. Those in banks are also subject to regulatory requirements on their remuneration. Again, it baffles me that we are not asking the same for child safety from online platforms and companies.

The money laundering regulations also use the threat of criminal offences to drive culture change. Individuals can be culpable for failure of processes, as well as for intent. I therefore hope that the Minister will carefully consider the need for the same to apply to our online space to make children safe.

Amendment 70 is a technical amendment that we will be discussing later on in the Bill. However, I am happy to move it in the name of the official Opposition.

[Dan Carden]

I congratulate my own Front Bench on this important amendment. I would like the Minister to respond to the issue of transparency and the reason why only the regulator would have sight of these risk assessments. It is fundamental that civil society groups and academics have access to them. Her Majesty’s Revenue and Customs is an example of where that works very well. HMRC publishes a lot of its data, which is then used by academics and researchers to produce reports and documents that feed back into the policy making processes and HMRC’s work. It would be a missed opportunity if the information and data gathered by Ofcom were not widely available for public scrutiny.

I would reinforce the earlier points about accountability. There are too many examples—whether in the financial crash or the collapse of companies such as Carillion—where accountability was never there. Without this amendment and the ability to hold individuals to account for the failures of companies that are faceless to many people, the legislation risks being absolutely impotent.

Finally, I know that we will get back to the issue of funding in a later clause but I hope that the Minister can reassure the Committee that funding for the enforcement of these regulations will be properly considered.

[Chris Philp]

Let me start by speaking to clauses 6, 7, 21 and 22 stand part. I will then address the amendments moved by the shadow Minister.

[The Chair]

Order. I apologise for interrupting, Minister, but the stand part debates on clauses 7, 21 and 22 are part of the next grouping, not this one. I am fairly relaxed about it, but just be aware that you cannot have two debates on this.

[Chris Philp]

The grouping sheet I have here suggests that clause 7 stand part and clauses 21 and 22 stand part are in this grouping, but if I have misunderstood—

[The Chair]

No, there are two groups. Let me clarify this for everyone, because it is not as straightforward as it normally is. At the moment we are dealing with amendments 69 and 70. The next grouping, underneath this one on your selection paper, is the clause stand part debates—which is peculiar, as effectively we are having the stand part debate on clause 6 now. For the convenience of the Committee, and if the shadow Minister is happy, I am relaxed about taking all this together.

[The Chair]

The hon. Lady can be called again. The Minister is not winding up at this point.

[Chris Philp]

In the interests of simplicity, I will stick to the selection list and adapt my notes accordingly to confine my comments to amendments 69 and 70, and then we will come to the stand part debates in due course. I am happy to comply, Sir Roger.

Speaking of compliance, that brings us to the topic of amendments 69 and 70. It is worth reminding ourselves of the current enforcement provisions in the Bill, which are pretty strong. I can reassure the hon. Member for Liverpool, Walton that the enforcement powers here are far from impotent. They are very potent. As the shadow Minister acknowledged in her remarks, we are for the first time ever introducing senior management liability, which relates to non-compliance with information notices and offences of falsifying, encrypting or destroying information. It will be punishable by a prison sentence of up to two years. That is critical, because without that information, Ofcom is unable to enforce.

We have had examples of large social media firms withholding information and simply paying a large fine. There was a Competition and Markets Authority case a year or two ago where a large social media firm did not provide information repeatedly requested over an extended period and ended up paying a £50 million fine rather than providing the information. Let me put on record now that that behaviour is completely unacceptable. We condemn it unreservedly. It is because we do not want to see that happen again that there will be senior manager criminal liability in relation to providing information, with up to two years in prison.

In addition, for the other duties in the Bill there are penalties that Ofcom can apply for non-compliance. First, there are fines of up to 10% of global revenue. For the very big American social media firms, the UK market is somewhere just below 10% of their global revenue, so 10% of their global revenue is getting on for 100% of their UK revenue. That is a very significant financial penalty, running in some cases into billions of pounds.

In extreme circumstances—if those measures are not enough to ensure compliance—there are what amount to denial of service powers in the Bill, where essentially Ofcom can require internet service providers and others, such as payment providers, to disconnect the companies in the UK so that they cannot operate here. Again, that is a very substantial measure. I hope the hon. Member for Liverpool, Walton would agree that those measures, which are in the Bill already, are all extremely potent.

The question prompted by the amendment is whether we should go further. I have considered that issue as we have been thinking about updating the Bill—as hon. Members can imagine, it is a question that I have been debating internally. The question is whether we should go further and say there is personal criminal liability for breaches of the duties that go beyond information provision. There are arguments in favour, which we have heard, but there are arguments against as well. One is that if we introduce criminal liability for those other duties, that introduces a risk that the social media firms, fearing criminal prosecution, will become over-zealous and just take everything down because they are concerned about being personally liable. That could end up having a chilling effect on content available online and goes beyond what we in Parliament would intend.

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[Kirsty Blackman]

Will the Minister give way?

[Chris Philp]

In a moment.

For those reasons, I think we have drawn the line in the right place. There is personal criminal liability for information provision, with fines of 10% of local revenue and service disruption—unplugging powers—as well. Having thought about it quite carefully, I think we have struck the balance in the right place. We do not want to deter people from offering services in the UK. If they worried that they might go to prison too readily, it might deter people from locating here. I fully recognise that there is a balance to strike. I feel that the balance is being struck in the right place.

I will go on to comment on a couple of examples we heard about Carillion and the financial crisis, but before I do so, I will give way as promised.

[Kirsty Blackman]

I appreciate that the Minister says he has been swithering on this point—he has been trying to work out the correct place to draw the line. Given that we do not yet have a commitment for a standing committee—again, that is potentially being considered—we do not know how the legislation is going to work. Will the Minister, rather than accepting the amendment, give consideration to including the ability to make changes via secondary legislation so that there is individual criminal liability for different breaches? That would allow him the flexibility in the future, if the regime is not working appropriately, to add through secondary legislation individual criminal liability for breaches beyond those that are currently covered.

[Chris Philp]

I have not heard that idea suggested. I will think about it. I do not want to respond off the cuff, but I will give consideration to the proposal. Henry VIII powers, which are essentially what the hon. Lady is describing—an ability through secondary legislation effectively to change primary legislation—are obviously viewed askance by some colleagues if too wide in scope. We do use them, of course, but normally in relatively limited circumstances. Creating a brand new criminal offence via what amounts to a Henry VIII power would be quite a wide application of the power, but it is an idea that I am perfectly happy to go away and reflect on. I thank her for mentioning the idea.

A couple of examples were given about companies that have failed in the past. Carillion was not a financial services company and there was no regulatory oversight of the company at all. In relation to financial services regulation, despite the much stricter regulation that existed in the run-up to the 2008 financial crisis, that crisis occurred none the less. [Interruption.] We were not in government at the time. We should be clear-eyed about the limits of what regulation alone can deliver, but that does not deter us from taking the steps we are taking here, which I think are extremely potent, for all the reasons that I mentioned and will not repeat.

Question put, That the amendment be made.

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[Alex Davies-Jones]

On clause 7, as I have previously mentioned, we were all pleased to see the Government bring in more provisions to tackle pornographic content online, much of which is easily accessible and can cause harm to those viewing it and potentially to those involved in it.

As we have previously outlined, a statutory duty of care for social platforms online has been missing for far too long, but we made it clear on Second Reading that such a duty will only be effective if we consider the systems, business models and design choices behind how platforms operate. For too long, platforms have been abuse-enabling environments, but it does not have to be this way. The amendments that we will shortly consider are largely focused on transparency, as we all know that the duties of care will only be effective if platforms are compelled to proactively supply their assessments to Ofcom.

On clause 21, the duty of care approach is one that the Opposition support and it is fundamentally right that search services are subject to duties including illegal content risk assessments, illegal content assessments more widely, content reporting, complaints procedures, duties about freedom of expression and privacy, and duties around record keeping. Labour has long held the view that search services, while not direct hosts of potentially damaging content, should have responsibilities that see them put a duty of care towards users first, as we heard in our evidence sessions from HOPE not hate and the Antisemitism Policy Trust.

It is also welcome that the Government have committed to introducing specific measures for regulated search services that are likely to be accessed by children. However, those measures can and must go further, so we will be putting forward some important amendments as we proceed.

Labour does not oppose clause 22, either, but I would like to raise some important points with the Minister. We do not want to be in a position whereby those designing, operating and using a search engine in the United Kingdom are subject to a second-rate internet experience. We also do not want to be in a position where we are forcing search services to choose what is an appropriate design for people in the UK. It would be worrying indeed if our online experience vastly differed from that of, let us say, our friends in the European Union. How exactly will clause 22 ensure parity? I would be grateful if the Minister could confirm that before we proceed.

[Chris Philp]

The shadow Minister has already touched on the effect of these clauses: clause 6 sets out duties applying to user-to-user services in a proportionate and risk-based way; clause 7 sets out the scope of the various duties of care; and clauses 21 and 22 do the same in relation to search services.

In response to the point about whether the duties on search will end up providing a second-rate service in the United Kingdom, I do not think that they will. The duties have been designed to be proportionate and reasonable. Throughout the Bill, Members will see that there are separate duties for search and for user-to-user services. That is reflected in the symmetry—which appears elsewhere, too—of clauses 6 and 7, and clauses 21 and 22. We have done that because we recognise that search is different. It indexes the internet; it does not provide a user-to-user service. We have tried to structure these duties in a way that is reasonable and proportionate, and that will not adversely impair the experience of people in the UK.

I believe that we are ahead of the European Union in bringing forward this legislation and debating it in detail, but the European Union is working on its Digital Services Act. I am confident that there will be no disadvantage to people conducting searches in United Kingdom territory.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.

Clause 8

Illegal content risk assessment duties

[Alex Davies-Jones]

I beg to move amendment 10, in clause 8, page 6, line 33, at end insert—

“(4A) A duty to publish the illegal content risk assessment and proactively supply this to OFCOM.”

This amendment creates a duty to publish an illegal content risk assessment and supply it to Ofcom.

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[Chris Philp]

Clause 8 sets out the risk assessment duties for illegal content, as already discussed, that apply to user-to-user services. Ofcom will issue guidance on how companies can undertake those. To comply with those duties, companies will need to take proportionate measures to mitigate the risks identified in those assessments. The clause lists a number of potential risk factors the providers must assess, including how likely it is that users will encounter illegal content, as defined later in the Bill,

“by means of the service”.

That phrase is quite important, and I will come to it later, on discussing some of the amendments, because it does not necessarily mean just on the service itself but, in a cross-platform point, other sites where users might find themselves via the service. That phrase is important in the context of some of the reasonable queries about cross-platform risks.

Moving on, companies will also need to consider how the design and operation of their service may reduce or increase the risks identified. Under schedule 3, which we will vote on, or at least consider, later on, companies will have three months to carry out risk assessments, which must be kept up to date so that fresh risks that may arise from time to time can be accommodated. Therefore, if changes are made to the service, the risks can be considered on an ongoing basis.

Amendment 10 relates to the broader question that the hon. Member for Liverpool, Walton posed about transparency. The Bill already contains obligations to publish summary risk assessments on legal but harmful content. That refers to some of the potentially contentious or ambiguous types of content for which public risk assessments would be helpful. The companies are also required to make available those risk assessments to Ofcom on request. That raises a couple of questions, as both the hon. Member for Liverpool, Walton mentioned and some of the amendments highlighted. Should companies be required to proactively serve up their risk assessments to Ofcom, rather than wait to be asked? Also, should those risk assessments all be published—probably online?

In considering those two questions, there are a couple of things to think about. The first is Ofcom’s capacity. As we have discussed, 25,000 services are in scope. If all those services proactively delivered a copy of their risk assessment, even if they are very low risk and of no concern to Ofcom or, indeed, any of us, they would be in danger of overwhelming Ofcom. The approach contemplated in the Bill is that, where Ofcom has a concern or the platform is risk assessed as being significant—to be clear, that would apply to all the big platforms—it will proactively make a request, which the platform will be duty bound to meet. If the platform does not do that, the senior manager liability and the two years in prison that we discussed earlier will apply.

[Alex Davies-Jones]

The Minister mentioned earlier that Ofcom would be adequately resourced and funded to cope with the regulatory duty set out in the Bill. If Ofcom is not able to receive risk assessments for all the platforms potentially within scope, even if those platforms are not deemed to be high risk, does that not call into question whether Ofcom has the resource needed to actively carry out its duties in relation to the Bill?

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[Chris Philp]

Of course, Ofcom is able to request any of them if it wants to—if it feels that to be necessary—but receiving 25,000 risk assessments, including from tiny companies that basically pose pretty much no risk at all and hardly anyone uses, would, I think, be an unreasonable and disproportionate requirement to impose. I do not think it is a question of the resources being inadequate; it is a question of being proportionate and reasonable.

[Dan Carden]

The point I was trying to get the Minister to think about was the action of companies in going through the process of these assessments and then making that information publicly available to civil society groups; it is about transparency. It is what the sector needs; it is the way we will find and root out the problems, and it is a great missed opportunity in this Bill.

[Chris Philp]

To reassure the hon. Member on the point about doing the risk assessment, all the companies have to do the risk assessment. That obligation is there. Ofcom can request any risk assessment. I would expect, and I think Parliament would expect, it to request risk assessments either where it is concerned about risk or where the platform is particularly large and has a very high reach—I am thinking of Facebook and companies like that. But hon. Members are talking here about requiring Ofcom to receive and, one therefore assumes, to consider, because what is the point of receiving an assessment unless it considers it? Receiving it and just putting it on a shelf without looking at it would be pointless, obviously. Requiring Ofcom to receive and look at potentially 25,000 risk assessments strikes me as a disproportionate burden. We should be concentrating Ofcom’s resources—and it should concentrate its activity, I submit—on those companies that pose a significant risk and those companies that have a very high reach and large numbers of users. I suggest that, if we imposed an obligation on it to receive and to consider risk assessments for tiny companies that pose no risk, that would not be the best use of its resources, and it would take away resources that could otherwise be used on those companies that do pose risk and that have larger numbers of users.

[Kim Leadbeater]

Just to be clear, we are saying that the only reason why we should not be encouraging the companies to do the risk assessment is that Ofcom might not be able to cope with dealing with all the risk assessments. But surely that is not a reason not to do it. The risk assessment is a fundamental part of this legislation. We have to be clear that there is no point in the companies having those risk assessments if they are not visible and transparent.

[Chris Philp]

All the companies have to do the risk assessment, for example for the “illegal” duties, where they are required to by the Bill. For the “illegal” duties, that is all of them; they have to do those risk assessments. The question is whether they have to send them to Ofcom—all of them—even if they are very low risk or have very low user numbers, and whether Ofcom, by implication, then has to consider them, because it would be pointless to require them to be sent if they were not then looked at. We want to ensure that Ofcom’s resources are pointed at the areas where the risks arise. Ofcom can request any of these. If Ofcom is concerned—even a bit concerned—it can request them.

Hon. Members are then making a slightly adjacent point about transparency—about whether the risk assessments should be made, essentially, publicly available. In relation to comprehensive public disclosure, there are legitimate questions about public disclosure and about getting to the heart of what is going on in these companies in the way in which Frances Haugen’s whistleblower disclosures did. But we also need to be mindful of what we might call malign actors—people who are trying to circumvent the provisions of the Bill—in relation to some of the “illegal” provisions, for example. We do not want to give them so much information that they know how they can circumvent the rules. Again, there is a balance to strike between ensuring that the rules are properly enforced and having such a high level of disclosure that people seeking to circumvent the rules are able to work out how to do so.

[Kirsty Blackman]

If the rules are so bad that people can circumvent them, they are not good enough anyway and they need to be updated, but I have a specific question on this. The Minister says that Ofcom will be taking in the biggest risk assessments, looking at them and ensuring that they are adequate. Will he please give consideration to asking Ofcom to publish the risk assessments from the very biggest platforms? Then they will all be in one place. They will be easy for people to find and people will not have to rake about in the bottom sections of a website. And it will apply only in the case of the very biggest, most at risk platforms, which should be regularly updating their risk assessments and changing their processes on a very regular basis in order to ensure that people are kept safe.

[Chris Philp]

I thank the hon. Lady for her intervention and for the—

[The Chair]

Order. I am sorry to interrupt the Minister, but I now have to adjourn the sitting until this afternoon, when the Committee will meet again, in Room 9 and with Ms Rees in the Chair.