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Digital Economy

Part of Uk-EU Negotiations – in the House of Commons at 7:44 pm on 17th December 2018.

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Photo of Liam Byrne Liam Byrne Shadow Minister (Digital, Culture, Media and Sport) (Digital Economy) 7:44 pm, 17th December 2018

I will be as brief as I can, because I know that the whole House will want to hear from my hon. Friend Sarah Champion, given the level of expertise she brings to this debate.

The Minister will be pleased that I am able to start on a note of cross-party consensus; we do not have many of those at the moment. I think we can agree across this House that this is an important debate because it gives us the opportunity to say, when it comes to legislation in this territory, that we have rights to honour. We have rights to honour because we have duties to honour—duties to our children. As Baroness Kidron in another place has put it so well, “Children are children until they reach the age of maturity, not until they pick up a smartphone”.

If those duties bite on us, as legislators and indeed as parents, those duties should also bite on companies and indeed on social media companies. These measures go a little distance towards imposing some of those duties on commercial providers. They do not go far enough, and I will explain why there are shortcomings. However, they come so late and are needed so urgently that we will not oppose them or divide the House this evening.

These measures are a stopgap. I hope the Minister will at some point during these proceedings explain just how long this stopgap is expected to last. At the moment, we have the situation, as the Information Commissioner has put it, that the internet has become something of a “wild west”. As the Minister has been candid enough to admit in her really quite helpful explanatory remarks this evening, these regulations may touch on the problem, but they absolutely do not solve it. We need a very different regulatory approach to the online harms we are seeking to police.

In debating the shortcomings of these regulations, I hope we are able to help the Minister and the Secretary of State, who is good enough to be on the Front Bench tonight, to get two crucial reforms right. We asked for these reforms in the Data Protection Bill. They are the age-appropriate design code, which was promised under the Data Protection Bill, and the internet safety strategy, which I know the Secretary of State is hoping to bring forward as soon as he can get his civil servants back from no-deal planning and get them back on to the Department’s important business.

I hope the Minister is able to set out for us how long she expects this stopgap to last, and I want to flag up to her the 10 obvious deficiencies that leap out from the measures and the explanatory notes to them. I will rattle through them fairly quickly, in the interests of time.

The first problem is the very strange conclusion in the regulations of a de minimis of content at which the regulator will deem it necessary to trigger a safety wall of age-verification software. It is really not clear why a third was chosen. I appreciate that the Minister has to start from somewhere, but there are obvious flaws in this plan, not least providers simply filling their sites with virtuous content in order to get around the regulations. It strikes me we can fully anticipate that even at this stage of the legislation.

As has been highlighted by a number of hon. Members, some of whom are not now in their place, these regulations do not bite on social media firms. This is lunacy. This is surely one of the most dangerous areas in which our children are exposed to these kinds of online harms, so bringing forward a set of measures without explicit reference to their non-applicability to social media firms seems to me to be a shortcoming. As the House will know, the reason why this is such a problem is that when we took the Data Protection Bill through this place, we exercised a derogation under European law that allowed us to deem that children were basically unfettered on social media platforms from the age of 14, not 16 as other European countries insist. Debating the right protections for our children on social media platforms is extremely important, and hon. Members are absolutely right to clock that the orders do not touch on that important arena.

The second problem is the odd definition of “commercial basis” that is used as the trigger for requiring age-verification systems. We have had a useful exchange about business models that entice users by offering free content—the money is made either by advertising or through premium content. The orders and the explanatory notes are not terribly clear about the sins that will be allowed through the net because of that odd definition.

The third problem, which was debated in the other place, is the challenge of what definition of “obscene material” to use. At least a couple of definitions are knocking around different bits of legislation and it is not clear that the orders are all encompassing in the definitions used.

That brings us to the fourth issue, which was championed by Baroness Howe in the other place. The definitions that have been used create a couple of important new gaps. I am grateful for the briefing circulated by Christian Action Research and Education, which has set out the challenge in important ways. The Government have changed what the BBFC can ask internet service providers to block from so-called “prohibited material” to the much narrower definition of “extreme pornography”. In so doing, they exclude the power to ask ISPs to block non-photographic, animated child abuse images. Those are illegal to possess under section 62 of the Coroners and Justice Act 2009 but, at the moment, they are outwith the protections of the orders. If those images are located outside the UK, they are not within the remit of the Internet Watch Foundation. Given the number of such images that we know are available, that is a serious shortcoming in the orders. It is a great concern to the House that neither the Internet Watch Foundation nor the BBFC have the power to deal with those images.

That brings us to the fifth issue. Just as significant is another challenge. Because of the same use of definitions, it is not possible to prohibit violent pornography that is illegal under the Video Recordings Act 1984. I understand that Baroness Howe has a Bill in the other place to step on and do away with these problems, and perhaps at some point we might learn whether the Minister is minded to support that legislation. I am not sure whether the Minister gets a chance to wind up under the rules of tonight’s debate, but she might want to intervene if a box note is forthcoming.

The sixth problem is that the orders give power to what is essentially a private company. When the orders were passed to give the BBFC the role we are debating this evening, the Opposition raised significant concerns about whether, despite its extensive experience, the measures constitute mission creep for the BBFC. The Opposition and other hon. Members have serious doubts about whether it is resourced enough to do the job. This is a new departure in its business, and it does not have a track record. It does not have a royal charter, and it cannot de facto be assumed to be operating in the common good. The basic challenge hon. Members have is this: who will watch the watchmen? How will we ensure that that private organisation, which is blessed by us with statutory powers and statutory regulatory oversight, executes the task we give it effectively? We cannot rely on its mission. I welcome the fact that the Minister says that the Secretary of State will come back to the House in 12 to 18 months with a progress report, but that is rather a long time in the future if BBFC is found to be seriously failing in the execution of its duties at a much earlier stage.

The seventh problem is that there is not an exhaustive list of age-verification solutions. The Minister will say that the technology moves on and that we need to preserve a degree of flexibility to allow the legislation to keep up to date but, none the less, the lack of specificity worries me. It worries me that the BBFC is not yet able to insist on minimal regulations and solutions for age-verification systems. The eighth problem is that the guidance on what is appropriate in systems is vague.

When we take those eight objections together, we see that the orders are half measures. The reality is that, this year, we have learned about and debated a great many different approaches to clamping down on the harms that may hurt our children online. A much better approach to the problem would be to use a tried and tested concept in health and safety legislation: the duty of care principle, which has been around in English law since at least the early 1970s. That approach would require companies and organisations to take specific steps to understand the potential harms they are causing to their consumers, and then to take appropriate steps to ameliorate those harms.

If I went to London tonight and built myself an arena and filled it with people, I would rightly be asked to observe all kinds of health and safety measures to ensure that that the people were safe and sound. If I build an online arena, I am under no such obligations and can pretty much do what I want. If I ensure that the arena is a social media platform, I will not be hampered in any way by the orders.

The duty of care principle is a much better approach, but it needs a different kind of regulator. We currently have something like 13 different regulators overseeing different aspects of internet safety, internet regulation, content regulation and financial processing regulation online. That is far too many. That landscape is much too complicated, and those regulators do not have sufficient powers to implement the safeguards against online harm that we as legislators would like. I am not proposing that we reduce those 13 regulators to one this evening, but I am saying that 13 needs to come down to something closer to one. The House needs to ensure that that regulator has the right power to enforce proper duty of care regulation.

The Minister spoke at great length and I am grateful that she took a wide variety of interventions. The orders are important and necessary, and an advance on where we are today, but if we are to get the future right, hon. Members on both sides of the House need to be candid and honest, and work together in identifying the shortcomings of the current approach, which was conceived and constructed in legislation that is a couple of years old. We need to be honest and open about its shortcomings so that we can put in place a better solution when we have the White Paper and, I hope, when the Secretary of State brings the Bill to the House.