Amendment 4

Part of Online Safety Bill - Committee (2nd Day) – in the House of Lords at 5:30 pm on 25 April 2023.

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Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 5:30, 25 April 2023

My Lords, in moving Amendment 4, I will also speak to Amendments 6 to 8 and 12 and consequential Amendments 288 and 305, largely grouped under the heading “exemptions”. In this group I am also particularly sympathetic to Amendment 9 in the names of the noble Lords, Moylan and Lord Vaizey, and I will leave them to motivate that. I look forward to hearing from the noble Lord, Lord Knight, an explanation for his Amendment 9A.

Last Wednesday we discussed the purposes of the Bill, and there was much agreement across the Chamber on one issue at least: that we need to stay focused and make sure that an already highly complex piece of legislation does not become even more unwieldy. My concern in general is that the Bill already suffers throughout from being overly broad in its aims, resulting in restricting the online experience and expressions of everyone. This series of amendments is about trying to rein in the scope, allowing us to focus on clear targets rather than a one-size-fits-all Bill that sweeps all in its wake with perhaps unintended and damaging consequences.

The Bill creates an extraordinary set of regulatory burdens on tens of thousands of British businesses, micro-communities and tech platforms, no matter the size. The impact assessment claims that 25,000 businesses are in scope, and that is considered a conservative estimate. This implies that an extraordinary range of platforms, from Mumsnet and Wikipedia to whisky-tasting forums and Reddit, will be caught up in this Bill. Can we find a way of removing the smaller platforms from scope? It will destroy too many of them if they have to comply with the regulatory burden created with huge Silicon Valley behemoths in mind.

Let us consider some of the regulatory duties that these entities are expected to comply with. They will need to undertake extensive assessments that must be repeated whenever a product changes. They will need to proactively remove certain types of content, involving assessing the risk of users encountering each type of illegal content, the speed of dissemination and functionality, the design of the platform and the nature and severity of the risk of harms presented to individual users. This will mean assessing their user base and implementing what are effectively surveillance systems to monitor all activity on their platforms.

Let us consider what a phrase such as “prevent from encountering” would mean to a web host such as Wikipedia. It would mean that it would need to scan and proactively analyse millions of edits across 250 languages for illegality under UK-specific law and then block content in defiance of the wishes of its own user community. There is much more, of course. Rest assured, Ofcom’s guidance and risk assessment will, over time, increase the regulatory complexity and the burdens involved.

Those technological challenges do not even consider the mountain of paperwork and administrative obligations that will be hugely costly and time consuming. All that might be achievable, if onerous, for larger platforms. But for smaller ones it could prove a significant problem, with SMEs and organisations working with a public benefit remit particularly vulnerable. Platforms with the largest profits and the most staff dedicated to compliance will, as a consequence, dominate at the expense of start-ups, small companies and community-run platforms.

No doubt the Government and the Minister will assure us that the duties are not so onerous and that they are manageable and proportionate. The impact assessment estimates that implementing the Bill will cost businesses £2.5 billion over the first 10 years, but all the commentators I have read think this is likely to be a substantial underestimate, especially when we are told in the same impact assessment that the legal advice is estimated to cost £39.23 per hour. I do not know what lawyers the Government hang out with, but they appear not to have a clue about the going rate for specialist law firms.

Also, what about the internal staff time? Again, the impact assessment assumes that staff will require only 30 minutes to familiarise themselves with the requirements of the legislation and 90 minutes to read, assess and change the terms and conditions in response to the requirements. Is this remotely serious? Even working through the groups of amendments has taken me hours. It has been like doing one of those 1,000-piece jigsaws, but at least at the end of those you get to see the complete picture. Instead, I felt as though somebody had come in and thrown all the pieces into the air again. I was as confused as ever.

If dealing with groups of amendments to this Bill is complex, that is nothing on the Bill itself, which is dense and often impenetrable. Last week, the Minister helpfully kept telling us to read the Explanatory Notes. I have done that several times and I am still in a muddle, yet somehow the staff of small tech companies will conquer all this and the associated regulatory changes in an hour and a half.

Many fear that this will replicate the worst horrors of GDPR, which, according to some estimates, led to an 8% reduction in the profits of smaller firms while it had little or no effect on the profits of large tech companies. That does not even take into account the cost of the near nervous breakdowns that GDPR caused small organisations, as I know from my colleagues at the Academy of Ideas.

These amendments try to tackle this disproportionate burden on smaller platforms—those companies that are, ironically, often useful challenges and antidotes to big tech’s dominance. The amendments would exempt them unless there is a good reason for specific platforms to be in scope. Of course, cutting out those in scope may not appeal to everyone here. From looking at the ever-increasing amendments list, it seems that some noble Lords have an appetite for expanding the number of services the legislation will apply to; we have already heard the discussion about app stores and online gaming. But we should note that the Government have carved out other exemptions for certain services that are excluded from the new regulatory system. They have not included emails, SMS messages, one-to-one oral communications and so on. I am suggesting some extra exemptions and that we remove services with fewer than 1 million monthly UK users. Ofcom would have the power to issue the provider with a notice bringing them into scope, but only based on reasonable grounds, having identified a safety risk and with 30 days’ notice.

If we do not tackle this, I fear that there is a substantial, serious and meaningful risk that smaller platforms based outside and inside the UK will become inaccessible to British users. It is notable that over 1,000 US news websites blocked European users during the EU’s introduction of GDPR, if noble Lords remember. Will there be a similar response to this law? What, for example, will the US search engine DuckDuckGo conclude? The search engine emphasises privacy and refuses to gather information on its users, meaning that it will be unable to fulfil the duties contained in the Bill of identifying or tailoring search results to users based on their age. Are we happy for it to go?

I fear that this Bill will reduce the number of tech platforms operating in the UK. This is anti-competitive. I do not say that because I have a particular commitment to competition and the free market, by the way. I do so because competition is essential and important for users’ choice and empowerment, and for free speech—something I fear the Bill is threatening. Indeed, the Lords’ Communications and Digital Committee’s extensive inquiry into the implications of giving large tech companies what is effectively a monopoly on defining which speech is free concluded:

“Increasing competition is crucial to promoting freedom of expression online. In a more competitive market, platforms would have to be more responsive to users’ concerns about freedom of expression and other rights”.

That is right. If users are concerned that a platform is failing to uphold their freedom of expression, they can join a different platform with greater ease if there is a wide choice. Conversely, users who are concerned that they do not want to view certain types of material would be more easily able to choose another platform that proscribes said material in its terms and conditions.

I beg to move the amendment as a way of defending diversity, choice and innovation—and as a feeble attempt to make the Bill proportionate.