Online Harms White Paper - Motion to Take Note

Part of the debate – in the House of Lords at 8:02 pm on 30th April 2019.

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Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Opposition Whip (Lords) 8:02 pm, 30th April 2019

My Lords, I join others in thanking the Government for ensuring that the House has had an early opportunity to debate this White Paper. It has been long-trailed—it kept approaching and disappearing in our thoughts as the Minister came under pressure to define his timescale—but it is here, it is good and we will support it. However, it has also brought up a number of issues that have been raised today and we need to address them.

The number of speakers in the debate may be relatively low but the quality of the content has been extremely high. I have been scribbling notes all the way through, often overwriting what I was going to say as additional points came through. I will probably not be as clear as I would wish to be but that is a reflection of the quality on display today.

We also had the chance to see practical examples of the issues in play in the exchanges on the Statement that preceded this debate. Some concrete examples were quite worrisome and I hope they will be looked at carefully by DCMS, even though the Statement was from the Department for Health and Social Care.

It would be invidious to pick out particular contributions to the debate—as I have said, the standard has been high—but it would be remiss of me not to pay tribute to the noble Baroness, Lady Howe, for her contribution. She has been a doughty campaigner on these issues for as long as anyone can remember—she can remember a long way back; I mean no disrespect by saying that—and it must be a sweet moment for the Minister that, despite the criticisms she still has, she welcomed what has been put in front of us today.

We are not discussing a Bill and I take the Minister’s point that this is a White Paper for discussion. It has some green pages to which we are encouraged to respond, and I hope we will all respond where we can. I also hope that the Minister will take on board what has been said today because it has been a useful contribution. Many people have spoken about the wording of the paper itself, which gives a sense of where we are in this debate. I shall do so as well. I have some general points that I wish to make at the end of what I have to say, but I shall start with one or two points of detail because it is important that we pick up on issues of substance.

On the statement in the White Paper on a new regulatory framework for online safety, in paragraph 21 there is an assertion that the Bill will contain powers for the Government to direct the regulator, when appointed, in relation to codes of practice on terrorist activity or child sexual exploitation and abuse—CSEA—and that these codes must be signed off by the Home Secretary. This is an issue in which Parliament needs to be involved and I hope the Minister will reflect on that and find a way in which we can get further engagement. I do not think it appropriate for the Executive simply to commission codes, have the Home Secretary sign them off and implement them without Parliament having a much greater role.

Paragraph 22 refers to the need to make sure that the codes of practice relate to currently illegal harms, of which there are many, including violence and the sale of illegal services and goods such as weapons. The clear expectation is that the regulator will work with law enforcement to ensure that the codes keep pace with the threat. This also is a wider issue because obscenity law is also in need of updating. We have had discussions on previous Bills about how there is discontinuity in how the Government are going about this. I hope that point will also be picked up.

A number of noble Lords raised the importance of transparency for any work that might be done in this area. The most disappointing aspect is the rather coy phrasing in the White Paper in relation to algorithms. Paragraph 23 refers only to the regulator having powers to require additional information about the impact of algorithms in selecting content for users. The bulk of the argument that has been made today is that we need to know what these algorithms are doing and what they will make happen in relation to people’s data and how the information provided will be used. This issue came up in the discussion on the Statement, when it was quite clear that those who might be at risk from harms created on social media are also receiving increasingly complex and abusive approaches because of algorithms rather than general activity. This issue is important and we will need to come back to it.

Moving on to the companies in the scope of the regulatory framework, the phrasing of paragraph 29 is interesting. It states:

“The regulatory framework should apply to companies that allow users to share or discover user-generated content or interact with each other online”.

That does not cover the point that, as many others have said, a much wider set of societal and economic indicators will be affected by the work on social media. We cannot allow the opportunity to legislate here to be missed because of some constraint on looking only at user-to-user interactions. We need to consider the impact on the economy more broadly.

When the Minister responds, or perhaps in writing later, will he consider the question raised in paragraph 33, which states:

“Reflecting the importance of privacy, any requirements to scan or monitor content for tightly defined categories of illegal content will not apply to private channels”?

We need to know more about what is meant by “private channels”. There is more in the White Paper but this exclusion of private communications may be too great a risk to bear. If we are talking about WhatsApp or Facebook Messenger messages being private, we will also miss out on the problems that have been caused by harassment, bullying, aggression and other issues raised in earlier debates.

On the independent regulator, which I shall come back to later, there is a very narrow issue about the wording of paragraph 35, which says that,

“the regulator will work closely with UK Research and Innovation (UKRI)”.

Why has that body been picked? There must be many people doing research in this area and it would seem invidious that it has been selected as one of the primary partners on the evidence base. I hope there is a much broader cut through the research being done because we will need it as we move forward.

Finally on the detailed points, the enforcement of the regulatory framework is key to whether this will be a successful démarche. On all the previous occasions we have discussed this, in relation to gambling, addiction and other issues, we have come across the problem that where companies have a legal presence in the UK, there is obviously an easier route through to attaching to them. However, most companies operating in the UK are based entirely overseas, and this is true of the companies we are talking about today. It is a familiar problem. We have been through this so many times that the arguments must be so well rehearsed in the department that it has not been able to come up with anything new this time, although I regret that because we are stuck with the issue that, while it is very good to see the Government prepared to impose liability on individual members of senior management in respect of breaches of the regulations implied by the new regulator, the business activities will not be affected if the Government lack the powers to do anything about them. The Minister is well aware that in previous discussions we have come to the conclusion that the only real way in which one can get at that is to follow the money. Unless there are powers in the Bill, when it comes forward, to block non-compliant services, and particularly to stop the flow of money, it will not be effective. I hope that message will be learned and taken forward.

The noble Lord, Lord Anderson of Ipswich, raised an important point about the fit with the EU e-commerce directive. I am sure the answer to this is that it cannot be answered, but the issue is clearly there. The e-commerce directive constrains the Government’s ability in this area. Unless they have a way forward on this, we will not be able to get far beyond the boundaries. I will be grateful for any thoughts that the Minister might have on that.

On general points, the right reverend Prelate the Bishop of St Albans was right to pick as his analogy the parallel between the internet and open spaces, and how we are happy to regulate to make sure that open spaces are available and accessible to people. We should think hard about that helpful analogy in relation to the internet. I am also very grateful to my noble friend Lord Knight of Weymouth, one of the few people to point out that we all believe that the sunny uplands of the internet—the safe places in which we gambol and play—have always been a fantastic resource for those able to access and use them. Of course there are dangers, and it has been a bit of a Wild West, but we have undoubtedly benefited from the internet. We must be very careful that we do not lose something of value as we go forward.

I take it from what the White Paper says that it is now clear that there is sufficient evidence from authoritative sources of the harms caused by social media to justify statutory action. Indeed, the White Paper accepts that voluntary self-regulation in this area has failed. I think that is right. However, we need to bear in mind that there is a lot going on. For example, we are still waiting for the Law Commission to finalise its review of the current law on abusive and offensive online communications and of what action might be required by Parliament to rectify weaknesses in the current regime. From earlier discussions and debates, I also anticipate that more legislation will be required to eliminate overlapping offences and the ambiguity of terminology concerning what is or is not obscene. I hope we will have a clear view of what is or is not illegal in the virtual world. It is easy to say that what is illegal in the real world should be illegal in the virtual world, but we now know enough to anticipate that changes will be required to get our statute book in the right order. However, if it is clear what is illegal and can be prosecuted, am I right in thinking that the problem is about how to systematise the drafting of effective legislation for those affected by fast-moving, innovative services on the internet? The software of social media services changes every week, perhaps even more often—every day—and, as many have said, it will be very difficult to find the right balance between innovation, freedom of speech and expression, privacy and the harms that have been caused.

We come back, then, to the very basic question: how do we regulate an innovative and fast-moving sector, largely headquartered outside the UK, and what tools do we have available to do it with? It is true that the technologies in use today represent only 10% of what is likely to be introduced in the next decade or so. How do we future-proof our regulatory structures? That is why the idea of a duty of care is so attractive. Like my noble friend Lord Knight, I acknowledge the work of the Carnegie UK Trust on this, in particular that of Will Perrin and Lorna Woods. There is an earlier legal principle in play here: the precautionary principle that came out in the late 1990s. Its strength lies in requiring a joint approach to as yet unknown risks and places the companies offering such services in the forefront of efforts to limit the harms caused by products and services that threaten public health and safety, but always in partnership with the regulator, to make this public space as safe as the physical space, as the analogy would run.

We support the Government’s proposals for primary legislation to place a duty of care on the social media companies to prevent reasonably foreseeable harm befalling customers or users and to build in a degree of future-proofing that encompasses the remarkable breadth of activity that one finds on these social networks. Having said that, it is important that we think hard about the regulator. This is the point I wanted to come back to. Under a duty-of-care approach, a regulator does not merely fine or sanction but plays an active role to help companies help themselves. It would be perverse not to utilise, for example, the experience and expertise of Ofcom in these earlier stages because it already has a relationship with so many of these companies. I hope that the lessons learned by the Health and Safety Executive over the years will also be tapped because there are other examples, which we will come to.

A few detailed points raised in the debate should be at the forefront in the Minister’s summing up. One is that we do not know enough about the practicalities of physical human monitoring—a point raised by my noble friend Lord Haskel. Here, transparency must be the key. Do we really know what goes on in what we do? If it is all done by automated screenings and robotics, and there is a limit on physical human activity, we will never get to the point where we can rely on companies sufficiently. This is an important area, and of course this is before we start raising issues about the dark web, as my noble friend did.

As others mentioned, we are still not clear about what the real issues are between harmful and illegal content, particularly the contextual issues raised about questions of harm. Clearly, as raised by the noble Viscount, Lord Colville, there is the danger of a chilling effect on innovation and development, and I hope that will be borne in mind. We also have to think about the economic and social disruptions. These activities may well be social in terms of social media but their impact on the whole of society is very important and we need to make sure that the rules and regulations are in place for that.

With regard to the regulator, there is also the question of what other regulatory functions there should be. When we get to the proposed Bill, we will need to spend some time exploring the boundaries between the ICO and the new regulator, and if it is a new regulator, how that boundary will work with Ofcom. I am sure that point will come up later, so it may not need a response today.

A number of noble Lords mentioned addiction and I have a lot of sympathy with that. I do not think that we have really got to the bottom of the issues here. Addiction to gambling is pretty well known about but gaming is becoming increasingly common in discussions about addiction, and the noble Viscount was right to raise it. There is not much in the White Paper about the research, development and educational work around all this activity. Perhaps the Bill will contain more about those issues once further development and discussions have taken place.

As my noble friend Lord Puttnam said, research on its own, and support for education about the technologies, is not really what we are about here. Both he and my noble friend Lord Knight pointed out that knowledge about the technology does not get you to the point where you understand what the information that you lack is doing to your perception of the world and your views about how the world is going. We need to educate and train people and offer them support, whether they are vulnerable or not, so that they can realise when the facts have been distorted and what they think is true is in fact misinformation. That is a completely different approach and I hope the Minister will have something to say about it when he responds.

This is such an interesting and complex area that we should spend more time on it than has been available to us thus far. The idea of pre-legislative scrutiny of the Bill, and certainly more discussion and debate, is attractive. I hope it finds favour with the Minister.