Amendment 16

Online Safety Bill - Committee (3rd Day) (Continued) – in the House of Lords at 3:03 pm on 27 April 2023.

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Lord Stevenson of Balmacara:

Moved by Lord Stevenson of Balmacara

16: Clause 8, page 7, line 16, after “governance,” insert “terms of service,”Member’s explanatory statementThis amendment makes clear that “design and operation of a service” includes its terms of service.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Shadow Spokesperson (Science, Innovation and Technology)

My Lords, this group of amendments concerns terms of service. All the amendments either have the phrase “terms of service” in them or imply that we wish to see more use of the phrase in the Bill, and seek to try to tidy up some of the other bits around that which have crept into the Bill.

Why are we doing that? Rather late in the day, terms of service has suddenly become a key fulcrum, under which much of the operations of the activity relating to people’s usage of social media and service functions on the internet will be expressed in relation to how they view the material coming to them. With the loss of the adult “legal but harmful” provisions, we also lost quite a considerable amount of what would have been primary legislation, which no doubt would have been backed up by codes of practice. The situation we are left with, and which we need to look at very closely, is the triple shield at the heart of the new obligations on companies, and, in particular, on their terms of service. That is set out primarily in Clauses 64, 65, 66 and 67, and is a subject to which my amendments largely refer.

Users of the services would be more confident that the Government have got their focus on terms of service right, if they actually said what should be said on the tin, as the expression goes. If it is the case that something in a terms of service was so written and implemented so that material which should be taken down was indeed taken down, these would become reliable methods of judging whether or not the service is the one people want to have, and the free market would be seen to be working to empower people to make their own decisions about what level of risk they can assume by using a service. That is a major change from the way the Bill was originally envisaged. Because this was done late, we have one or two of the matters to which I have referred already, which means that the amendments focus on changing what is currently in the Bill.

It is also true that the changes were not consulted upon; I do not recall there being any document from government about whether this was a good way forward. The changes were certainly not considered by the Joint Committee, of which several of those present were members—we did not discuss it in the Joint Committee and made no recommendation on it. The level of scrutiny we have enjoyed on the Bill has been absent in this area. The right reverend Prelate the Bishop of Oxford will speak shortly to amendments about terms of service, and we will be able to come back to it. I think it would have been appropriate had the earlier amendment in the name of the noble Lord, Lord Pickles, been in this group because the issue was the terms of service, even though it had many other elements that were important and that we did discuss.

The main focus of my speech is that the Government have not managed to link this new idea of terms of service and the responsibilities that will flow from that to the rest of the Bill. It does not seem to fit into the overall architecture. For example, it is not a design feature, and does not seem to work through in that way. This is a largely self-contained series of clauses. We are trying to ask some of the world’s largest companies, on behalf of the people who use them, to do things on an almost contractual basis. Terms of service are not a contract that you sign up to, but you certainly click something—or occasionally click it, if you remember to—by which you consent to the company operating in a particular set of ways. In a sense, that is a contract, but is it really a contract? At the heart of that contract between companies and users is whether the terms of service are well captured in the way the Bill is organised. I think there are gaps.

The Bill does have something that we welcome and want to hold on to, which is that the process under which the risks are assessed and decisions taken about how companies operate and how Ofcom relates to those decisions is about the design and operation of the service—both the design and the operation, something that the noble Baroness, Lady Kidron, is very keen to emphasise at all times. It all starts and ends with design, and the operation is a consequence of design choices. Other noble Baronesses have mentioned in the debate that small companies get it right and so, when they grow, can be confident that what they are doing is something that is worth doing. Design, and operating that design to make a service, is really important. Are terms of service part of that or are they different, and does it matter? It seems to me that they are downstream from the design: something can be designed and then have terms of service that were not really part of the original process. What is happening here?

My Amendments 16, 21, 66DA, 75 and 197 would ensure that the terms of service are included within the list of matters that constitute “design and operation” of the service at each point that it occurs. I have had to go right through the Bill to add it in certain areas—in a rather irritating way, I am sure, for the Bill team—because sometimes we find that what I think should be a term of service is actually described as something else, such as a “a publicly available statement”, whatever that is. It would be an advantage if we went through it again and defined terms of service and made sure that that was what we were talking about.

Amendments 70 to 72, 79 to 81 and 174 seek to help the Government and their officials with tidying up the drafting, which probably has not been scrutinised enough to pick up these issues. It may not matter, at the end of the day, but what is in the Bill is going to be law and we may as well try to get it right as best we can. I am sure the Minister will say we really do not need to worry about this because it is all about risks and outcomes, and if a company does not protect children or has illegal content, or the user-empowerment duties—the toggling—do not work, Ofcom will find a way of driving the company to sort it out. What does that mean in practice? Does it mean that Ofcom has a role in defining what terms of service are? It is not in the Bill and may not reach the Bill, but it is something that will be a bit of problem if we do not resolve what we mean by it, even if it is not by changing the legislation.

If the Minister were to disagree with my approach, it would be quite nice to have it said at the Dispatch Box so that we can look at that. The key question is: are terms of service an integral part of the design and operation of a service and, if so, can we extend the term to make sure that all aspects of the services people consume are covered by adequate and effective terms of service? There is probably going to be division in the way we approach this because, clearly, whether they are terms of service or have another name, the actual enforcement of illegal and children’s duties will be effected by Ofcom, irrespective of the wording of the Bill—I do not want to question that. However, there is obviously an overlap into questions about adults and others who are affected by the terms of service. If you cannot identify what the terms of service say in relation to something you might not wish to receive because the terms of service are imprecise, how on earth are you going to operate the services, the toggles and things, around it? If you look at that and accept there will be pressure within the market to get these terms of service right, there will be a lot of dialogue with Ofcom. I accept that all that will happen, but it would be good if the position of the terms of service was clarified in the Bill before it becomes law and that Ofcom’s powers in relation to those are clarified—do they or do they not have the chance to review terms of service if they turn out to be ineffective in practice? If that is the case, how are we going to see this work out in practice in terms of what people will be able to do about it, either through redress or by taking the issue to court? I beg to move.

Photo of Baroness Kidron Baroness Kidron Crossbench

I support these amendments, which were set out wonderfully by the noble Lord, Lord Stevenson. I want to raise a point made on Tuesday when the noble Baroness, Lady Merron, said that only 3% of people read terms of service and I said that 98% of people do not read them, so one of us is wrong, but I think the direction of travel is clear. She also used a very interesting phrase about prominence, and I want to use this opportunity to ask the Minister whether there is some lever whereby Ofcom can insist on prominence for certain sorts of material—a hierarchy of information, if you like—because these are really important pieces of information, buried in the wrong place so that even 2% or 3% of people may not find them.

Photo of Lord Allan of Hallam Lord Allan of Hallam Liberal Democrat Lords Spokesperson (Health)

My Lords, I am very pleased that the noble Lord, Lord Stevenson, has given us the opportunity to talk about terms of service, and I will make three points again, in a shorter intervention than on the previous group.

First, terms of service are critical as the impact of terms of service will generally be much greater in terms of the amount of intervention that occurs on content than it will ever be under the law. Terms of service create, in effect, a body of private law for a community, and they are nearly always a superset of the public law—indeed, it is very common for the first items of a terms of service to say, “You must not do anything illegal”. This raises the interesting question of “illegal where?”—what it generally means is that you must not do anything illegal in the jurisdiction in which the service provider is established. The terms of service will say, “Do not do anything illegal”, and then they will give a whole list of other things, as well as illegality, that you cannot do on the platform, and I think this is right because they have different characteristics.

Secondly, to back up the point made by the noble Baroness, Lady Kidron, we need to be realistic that no one will ever read all the terms of service of the services that they use. There was a study that looked at how long it would take to read the terms of service on a typical mobile phone—I think it is around 10 days; given that they get updated most years, are any of us going to spend 10 days a year reading the terms of service?

We like our real-world analogues: we read all of the law, but none of the people out there read all of the laws of the land unless and until they have a problem, at which point they do read them. Terms of service are very similar in that people are not going to read them and we should not expect people to read them unless and until they have a problem that requires them to do so. I do not mean that as a counsel of despair, but we have to be realistic about what we are expecting people to do.

Thirdly, the Bill is going to make terms of service longer, and we need to get over that. The challenge is always that you want your terms of service to be comprehensive and easy for users, and as we move in the Bill towards making terms of service more actionable—which we are doing because the Bill says that Ofcom will be able to say, “Did you apply your terms of service properly?”—the lawyers for the platforms are going to be saying “What have we missed out?” and “If there is anything we have missed out, we have to go and stick it in there because now we are going to have a regulator breathing down our neck, checking whether or not we have done what we say”.

We should be realistic that we are asking companies to be entirely comprehensive and transparent, and in general that will mean making their terms of service longer. Again, this is not a complete counsel of despair. We can follow Mark Twain’s advice:

“I didn’t have time to write you a short letter, so I wrote you a long one” and invest the time. That is what we can do to try to make terms of service shorter, rather than just saying to lawyers, “We will pay you by the word, and the more words there are, the happier we are”. But, again, we should be realistic: if it is comprehensive, it is going to be long; there is no way to avoid that.

The noble Lord, Lord Stevenson, asked whether or not it is a contract—that is an interesting question, certainly for the US providers. In the US the regulation, such that there is, is done largely by the Federal Trade Commission, and the concept is whether or not services are engaged in unfair or deceptive practices. An unfair or deceptive practice is not doing what you said you would do in the terms of service or a critical document of that nature.

Interestingly, all the incentive in the US is to be as vague as possible because if you have not said that you will do things, you cannot be hauled in front of the FTC. The EU generally creatives incentives to be as comprehensive as possible, and I was involved in a number of cases where the company I worked for was taken to court and forced to add in more text because the US text was seen as too skeletal—that is a familiar debate to us here, whether we like things to be skeletal or for everything to be filled in.

So we need to be cognisant of that as we build terms of service into the Bill. This is not an argument against the amendments, but rather to say that as we do this, we need to be clear that we may be pulling in opposite directions. They need to be comprehensive, yet easy to use. “We are going to hold you accountable in the US; therefore, you should be vague; but we are also going to hold you accountable in the UK if you are too vague”—where is the right point of specificity and vagueness?

Having said that, it is really important that we focus on this because from a user’s point of view you are far more likely to come across an issue with the terms than an issue with the law—this is great, because most people in this country are law-abiding and not seeking to break the law.

The final point is that sometimes there is a tendency to think that everyone should have uniform terms of service. I can see the argument for a baseline, but in a vibrant market there is a strong case to say that we should celebrate where they are different, and there are communities that are different. For example, if you have a service that targets young people you might want to prohibit swearing; whereas, for example, it would be completely inappropriate to prohibit swearing in a vibrant political community for adults only. There are lots of areas where people understand that the context is different. For example, there are places where nudity—not pornography—is okay, and places where it is not.

So having different terms of service for different types of service is healthy, but I also think that Ofcom making sure that people do what they say they do is a reasonably healthy development, as long as we recognise and accept the consequences of that.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Parliamentary Under Secretary of State (Department for Culture, Media and Sport) 3:15, 27 April 2023

My Lords, I am grateful for this short and focused debate, which has been helpful, and for the points made by the noble Lords, Lord Stevenson and Lord Allan, and the noble Baroness, Lady Kidron. I think we all share the same objective: ensuring that terms of service promote accountability and transparency, and empower users.

One of the Bill’s key objectives is to ensure that the terms of service of user-to-user platforms are suitable and effective. Under the Bill, companies will be required both to set out clearly how they will tackle illegal content and protect children and to ensure that their terms of service are properly enforced. The additional transparency and accountability duties on category 1 services will further ensure that users know what to expect on the largest platforms. This will put an end to these services arbitrarily removing content or, conversely, failing to remove content that they profess to prohibit.

The Bill will also ensure that search services are clear to their users about how they are complying with their adult and child safety duties under this new law. Given the very different way in which search services operate, however, this will be achieved through a publicly available statement rather than through terms of service. The two are meant distinctly.

Noble Lords are right to point to the question of intelligibility. It struck me that, if it takes 10 days to read terms of service, perhaps we should have a race during the 10 days allotted to this Committee stage to see which is quicker—but I take the point. The noble Lord, Lord Allan, is also right that the further requirements imposed through this Bill will only add to that.

The noble Baroness, Lady Kidron, asked a fair question about what “accessibility” means. The Bill requires all platforms’ terms of service for illegal content and child safety duties to be clear and accessible. Ofcom will provide guidance on what that means, including ensuring that they are suitably prominent. The same applies to terms of service for category 1 services relating to content moderation.

I will focus first on Amendments 16, 21, 66DA, 75 and 197, which seek to ensure that both Ofcom and platforms consider the risks associated with platforms’ terms of service with regard to the illegal content and child safety duties in the Bill. We do not think that these amendments are needed. User-to-user services will already be required to assess the risks regarding their terms of service for illegal content. Clause 8 requires companies to assess the “design and operation” of a service in relation to illegal content. As terms of service are integral to how a service operates, they would be covered by this provision. Similarly, Clause 10 sets out that companies likely to be accessed by children will be required to assess the “design and operation” of a service as part of their child risk assessments, which would include the extent to which their terms of service may reduce or increase the risk of harm to children.

In addition to those risk assessment duties, the safety duties will require companies to take proportionate measures effectively to manage and mitigate the risk of harm to people whom they have identified through risk assessments. This will include making changes to their terms of service, if appropriate. The Bill does not impose duties on search services relating to terms of service, as search services’ terms of service play a less important role in determining how users can engage on a platform. I will explain this point further when responding to specific amendments relating to search services but I can assure the noble Lord, Lord Stevenson, that search services will have comprehensive duties to understand and mitigate how the design and operation of their service affects risk.

Amendment 197 would require Ofcom to assess how platforms’ terms of service affect the risk of harm to people that the sector presents. While I agree that this is an important risk factor which Ofcom must consider, it is already provided for in Clause 89, which requires Ofcom to undertake an assessment of risk across regulated services. That requires Ofcom to consider which characteristics of regulated services give rise to harm. Given how integral terms of service are to how many technology companies function, Ofcom will necessarily consider the risk associated with terms of service when undertaking that risk assessment.

However, elevating terms of service above other systems and processes, as mentioned in Clause 89, would imply that Ofcom needs to take account of the risk of harm on the regulated service, more than it needs to do so for other safety-by-design systems and processes or for content moderation processes, for instance. That may not be suitable, particularly as the service delivery methods will inevitably change over time. Instead, Clause 89 has been written to give Ofcom scope to organise its risk assessment, risk register and risk profiles as it thinks suitable. That is appropriate, given that it is best placed to develop detailed knowledge of the matters in question as they evolve over time.

Amendments 70, 71, 72, 79, 80, 81, 174 and 302 seek to replace the Bill’s references to publicly available statements, in relation to search services, with terms of service. This would mean that search services would have to publish how they are complying with their illegal content and child protection duties in terms of service rather than in publicly available statements. I appreciate the spirit in which the noble Lord has tabled and introduced these amendments. However, they do not consider the very different ways in which search services operate.

User-to-user services’ terms of service fulfil a very specific purpose. They govern a user’s behaviour on the service and set rules on what a user is allowed to post and how they can interact with others. If a user breaks these terms, a service can block his or her access or remove his or her content. Under the status quo, users have very few mechanisms by which to hold user-to-user platforms accountable to these terms, meaning that users can arbitrarily see their content removed with few or no avenues for redress. Equally, a user may choose to use a service because its terms and conditions lead them to believe that certain types of content are prohibited while in practice the company does not enforce the relevant terms.

The Bill’s duties relating to user-to-user services’ terms of service seek to redress this imbalance. They will ensure that people know what to expect on a platform and enable them to hold platforms accountable. In contrast, users of search services do not create content or interact with other users. Users can search for anything without restriction from the search service provider, although a search term may not always return results. It is therefore not necessary to provide detailed information on what a user can and cannot do on a search service. The existing duties on such services will ensure that search engines are clear to users about how they are complying with their safety duties. The Bill will require search services to set out how they are fulfilling them, in publicly available statements. Their actions must meet the standards set by Ofcom. Using these statements will ensure that search services are as transparent as user-to-user services about how they are complying with their safety duties.

The noble Lord’s Amendment 174 also seeks to expand the transparency reporting requirements to cover the scope and application of the terms of service set out by search service providers. This too is unnecessary because, via Schedule 8, the Bill already ensures transparency about the scope and application of the provisions that search services must make publicly available. I hope that gives the noble Lord some reassurance that the concerns he has raised are already covered. With that, I invite him to withdraw Amendment 16.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Shadow Spokesperson (Science, Innovation and Technology)

My Lords, I am very grateful to the Minister for that very detailed response, which I will have to read very carefully because it was quite complicated. That is the answer to my question. Terms of service will not be very easy to identify because to answer my questions he has had to pray in aid issues that Ofcom will necessarily have to assess—terms of services—to get at whether the companies are performing the duties that the Bill requires of them.

I will not go further on that. We know that there will be enough there to answer the main questions I had about this. I take the point about search being distinctively different in this area, although a tidy mind like mine likes to see all these things in one place and understand all the words. Every time I see “publicly available statement”, I do not know why but I think about people being hanged in public rather than a term of service or a contract.

The noble Lord, Lord Allan, made the point that nobody ever reads these terms of service. We generally agree with that, but if you are married to a lawyer, as I am, you read an awful lot more of these things than you perhaps feel are good for your diet. I cannot even go on holiday until I have proven to her that I have read every word of my insurance policy on what I will be shipped home with. It is a frightening thought that some people do that because they like doing it, and she does.

I will not take this much further. The jibe that I had at the beginning—that this does not quite fit with the rest of the Bill—is still there, but we will not get much change out of what we are doing. The important thing is that, even though it is a rather complicated route, it looks as though Ofcom will have, possibly retrospectively and with more transparency than actual powers, the ability to look at terms of service when they are not working.

What I miss is the ability to set a standard for terms of service that is broadly acceptable to people, which was exactly the point that the noble Lord made: they cannot be so complex that you will not read them but they have to be sufficient to achieve what they do. I am still lost about what you can use the triple shield for if you do not know whether the services will deliver what you know you do not want. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.