Amendment 160A

Online Safety Bill - Committee (9th Day) (Continued) – in the House of Lords at 4:46 pm on 25 May 2023.

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Lord Knight of Weymouth:

Moved by Lord Knight of Weymouth

160A: Clause 68, page 62, line 23, leave out paragraph (d) and insert—“(d) be made publicly available, subject to appropriate redactions, on the date specified in the notice.” Member’s explanatory statementThis amendment makes clear that Ofcom guidance under Clause 66 must outline how a platform’s terms of service would be considered “adequate and appropriate”, as required under a new Clause in the name of Lord Stevenson of Balmacara.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

My Lords, as we have said many times, this is a complex Bill. As we reflect on the priorities for Report, we can be more relaxed about some of the specifics on how Ofcom may operate, thereby giving it more flexibility—the flexibility it needs to be agile in the online world—if we as a Parliament trust Ofcom. Building trust, I believe, is a triangulation. First, there is independence from government—as discussed in respect of Secretary of State powers. Secondly, we need proper scrutiny by Parliament. Earlier today I talked about my desire for there to be proper post-legislative scrutiny and a permanent Joint Committee to do that. The third leg of the stool is the transparency to assist that scrutiny.

Clause 68 contains the provisions which would require category 1, 2A and 2B services to produce an annual transparency report containing information described by Ofcom in a notice given to the service. Under these provisions, Ofcom would be able to require these services to report on, among other things: information about the incidence of illegal content and content that is harmful to children; how many users are assumed to have encountered this content by means of the service; the steps and processes for users to report this content; and the steps and processes which a provider uses for dealing with this content.

We welcome the introduction of transparency reporting in relation to illegal content and content that is harmful to children. We agree with the Government that effective transparency reporting plays a crucial role in building Ofcom’s understanding of online harms and empowering users to make a more informed choice about the services they use.

However, despite the inclusion of transparency reporting in the Bill representing a step in the right direction, we consider that these requirements could and should be strengthened to do the trust building we think is important. First, the Bill should make clear that, subject to appropriate redactions, companies will be required to make their transparency reports publicly available—to make them transparent—hence Amendment 160A.

Although it is not clear from the Bill whether companies will be required to make these reports publicly available, we consider that, in most instances, such a requirement would be appropriate. As noted, one of the stated purposes of transparency reporting is that it would enable service users to make more informed choices about their own and their children’s internet use—but they can only do so if the reports are published. Moreover, in so far as transparency reporting would facilitate public accountability, it could also act as a powerful incentive for service providers to do more to protect their users.

We also recognise that requiring companies to publish the incidences of CSEA content on their platforms, for instance, may have the effect of encouraging individuals seeking such material towards platforms on which there are high incidences of that content—that must be avoided. I recognise that simply having a high incidence of CSEA content on a platform does not necessarily mean that that platform is problematic; it could just mean that it is better at reporting it. So, as ever with the Bill, there is a balance to be struck.

Therefore, we consider that the Bill should make it explicit that, once provided to Ofcom, transparency reports are to be made publicly available, subject to redactions. To support this, Ofcom should be required to produce guidance on the publication of transparency reports and the redactions that companies should make before making reports publicly accessible. Ofcom should also retain the power to stop a company from publishing a particular transparency report if it considers that the risk of directing individuals to illegal materials outweighs the benefit of making a report public—hence Amendments 160B and 181A.

Amendments 165 and 229 are in my noble friend Lord Stevenson’s name. Amendment 165 would broaden the transparency requirements around user-to-user services’ terms of service, ensuring that information can be sought on the scope of these terms, not just their application. As I understand it, scope is important to understand, as it is significant in informing Ofcom’s regulatory approach. We are trying to guard against minimal terms of service where detail is needed for users and Ofcom.

The proposed clause in Amendment 229 probes how Ofcom will review the effectiveness of the transparency requirements in the Bill. It would require Ofcom to undertake a review of the effectiveness of transparency reports within three years and every five years thereafter, and it would give the Secretary of State powers to implement any recommendations made by the regulator. The Committee should note that we also include a requirement that a Select Committee, charged by the relevant House, must consider and report on the regulations, with an opportunity for Parliament to debate them. So we link the three corners of the triangle rather neatly there.

If we agree that transparency is an important part of building trust in Ofcom in doing this difficult and innovative regulatory job—it is always good to see the noble Lord, Lord Grade, in his place; I know he is looking forward to getting on with this—then this proposed clause is sensible. I beg to move.

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

My Lords, I am pleased that the noble Lord, Lord Knight of Weymouth, has given us an opportunity to talk about transparency reports with these amendments, which are potentially a helpful addition to the Bill. Transparency is one of the huge benefits that the legislation may bring. One of the concerns that the public have and that politicians have always had with online platforms is that they appear to be a black box—you cannot see what is going on in them.

In the entire edifice that we are constructing in the Online Safety Bill, there are huge opportunities to change that. The platforms will have to do risk assessments —there are measures in the Bill to make sure that information about these is put out—and they will have to take active steps to mitigate any risks they find. Again, we may get directions and guidance from Ofcom that will explain to the public exactly what is expected of them. The final piece of the jigsaw is the transparency reports that show the outcomes—how a platform has performed and what it has done to meet its obligations in dealing with content and behaviour on its services.

For the record, I previously worked for one of the platforms, and I would have said that I was on the pro-transparency wing of the transparency party inside the company. I believed that it was in the platform’s interest: if you do not tell people what you are doing, they will make things up about you, and what they make up will generally be worse than what you are actually doing. So there are huge advantages to the platforms from being transparent.

The noble Lord, Lord Knight, has picked up on some important points in his Amendment 160B, which talks about making sure that the transparency report is not counterproductive by giving the bad guys information that they could use to ill effect. That is a valid point; it is often debated inside the platforms. Sometimes, I argued furiously with my colleagues in the platforms about why we should disclose information. They would ask, “What about the bad guys?” Sometimes I challenged that, but other times it would have been a genuine and accurate concern. The noble Lord mentioned things such as child sexual abuse material, and we have to recognise that the bad guys are incredibly devious and creative, and if you show them anything that they can use against you to get around your systems, they will try to do that. That is a genuine and valid concern.

The sort of thing that you might put into a transparency report is, for example, whether you have banned particular organisations. I would be in favour of indicating to the public that an organisation is banned, but you can see that the potential impact of that is that all the people you are concerned about would create another organisation with a different name and then get back on to your platform. We need to be alive to those kinds of concerns.

It is also relevant to Amendment 165 and the terms of service that the more granular and detailed your terms of service are, the better they are for public information, but there are opportunities to get around them. Again, we would have that argument internally. I would say, “If we are prohibiting specific hate speech terms, tell people that, and then they won’t use them”. For me, that would be a success, as they are not using those hate speech terms anymore, but, of course, they may then find alternative hate speech terms that they can use instead. You are facing that battle all the time. That is a genuine concern that I hope we will be able to debate. I hope that Ofcom will be able to mitigate that risk by discussing with platforms what these transparency reports should look like. In a sense, we are doing a risk assessment of the transparency report process.

Amendment 229 on effectiveness is really interesting. My experience was that if you did not have a transparency report, you were under huge pressure to produce one and that once you produced one, nobody was interested. For fear of embarrassing anyone in the Committee, I would be curious to know how many noble Lords participating in this debate have read the transparency reports already produced by Meta Platforms, Google and others. If they have not read them, they should not be embarrassed, because my experience was that I would talk to regulators and politicians about something they had asked me to come in to talk about, such as hate speech or child sexual abuse material, and I learned to print off the transparency report. I would go in and say, “Well, you know what we are doing; it’s in our transparency report”. They would ask, “What transparency report?”, and I would have to show them. So, having produced a transparency report, every time we published it, we would expect there to be public interest, but little use was made of it. That is not a reason not to do them—as I said, I am very much in favour of doing them—but, on their own, they may not be effective, and Amendment 229 touches on that.

I was trying to think of a collective noun for transparency reports and, seeing as they shed light, I think it may be a “chandelier”. Where we may get the real benefit is if Ofcom can produce a chandelier of transparency reports, taking all the information it gets from the different platforms, processing it and selecting the most relevant information—the reports are often too long for people to work their way through—so that it can enable comparisons. That is really good and it is quite good for the industry that people know that platform A did this, platform B did that, and platform C did something else. They will take note of that, compare with each other and want to get into the best category. It is also critical that Ofcom puts this into user-friendly language, and Ofcom has quite a good record of producing intelligible reports. In the context of Amendment 229, a review process is good. One of the things that might come out of that, thinking ahead, would be Ofcom’s role in producing meta transparency reports, the chandelier that will shed light on what the whole sector is doing.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

My Lords, for once I want to be really positive. I am actually very positive about this whole group of amendments because more transparency is essential in what we are discussing. I especially like Amendment 165 from the noble Lord, Lord Stevenson of Balmacara, because it is around terms of service for user-to-user services and ensures that information can be sought on the scope as well as the application. This is important because so much has been put on user-to-user services as well as on terms of service. You need to know what is going on.

I want particularly to compliment Amendment 229 that says that transparency reports should be

“of sufficient quality to enable service users and researchers to make informed judgements”,

et cetera. That is a very elegant way in which to say that they should not be gobbledegook. If we are going to have them, they should be clear and of a quality that we can read. Obviously, we do not want them to be unreadable and full of jargon and legalistic language. I am hoping that that is the requirement.

I am positive because I have been worried that so much depends on terms of service and how that can lead to the overremoval of content and, as we discussed the other day, there is no individual complaints mechanism in terms of Ofcom. So I am grasping for ways in which users can have a right of redress. Understanding why something has been taken down is very important. As the noble Lord, Lord Allan of Hallam, said, so much is hidden from users. People will constantly say, “My material has been deboosted”, and it might well have been. They will say things such as, “The algorithms are hiding content, even if they are not removing it”. I have noticed that people can get very paranoid, and it can fuel conspiracy theories because you get people saying, “Nobody has retweeted my tweet. This is a deboosting algorithm”, when actually they have not retweeted it because it was boring. If you could see a bit more clearly what the policies were instead of feeling that they are hidden from your view, it would lessen the paranoia and that kind of accusation.

My only caveat to this proposal relates to what the noble Lord, Lord Allan, said about the bad guys being banned and that, if they are banned, they might emerge somewhere else. We also need to recognise that sometimes people who are called the bad guys can be banned, and they are not the bad guys. They need to be able to say, “We’re not the bad guys”. That is why the more detail, the better. The only other caveat is that I do not want to be in a situation where we demand endless regulatory complexity and reports and impositions make life impossible for the services in terms of red tape and paperwork. That is my only caveat. Generally speaking, however, I am very positive about these amendments, and I hope that by Report they become, one way or another, part of the Bill.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Science, Innovation and Technology) 5:00, 25 May 2023

My Lords, I strongly support the amendment in the names of the noble Lords, Lord Knight and Lord Stevenson, as well as my noble friend Lady Featherstone. The essence of the message from the noble Lord, Lord Knight, about the need for trust and the fact that you can gain trust through greater transparency is fundamental to this group.

The Joint Committee’s report is now a historical document. It is partly the passage of time, but it was an extraordinary way in which to work through some of the issues, as we did. We were very impacted by the evidence given by Frances Haugen, and the fact that certain things came to light only as a result of her sharing information with the Securities and Exchange Commission. We said at the time that:

“Lack of transparency of service providers also means that people do not have insight into the prevalence and nature of activity that creates a risk of harm on the services that they use”.

That is very much the sense that the noble Lord, Lord Stevenson, is trying to get to by adding scope as well.

We were very clear about our intentions at the time. The Government accepted the recommendation that we made and said that they agreed with the committee that

“services with transparency reporting requirements should be required to publish their transparency reports in full, and in an accessible and public place”.

So what we are really trying to do is to get the Government to agree to what they have already agreed to, which we would have thought would be a relatively straightforward process.

There are some other useful aspects, such as the review of effectiveness of the transparency requirements. I very much appreciate what my noble friend just said about not reading transparency reports. I read the oversight reports but not necessarily the transparency reports. I am not sure that Frances Haugen was a great advert for transparency reports at the time, but that is a mere aside in the circumstances.

I commend my noble friend Lady Featherstone’s Amendment 171, which is very consistent with what we were trying to achieve with the code of practice about violence against women and girls. That would fit very easily within that. One of the key points that my noble friend Lord Allan made is that this is for the benefit of the platforms as well. It is not purely for the users. Of course it is useful for the users, but not exclusively, and this could be a way of platforms engaging with the users more clearly, inserting more fresh air into this. In these circumstances it is pretty conclusive that the Government should adhere to what they agreed to in their response to the Joint Committee’s report.

Photo of Viscount Camrose Viscount Camrose Parliamentary Under Secretary of State (Department for Science, Innovation and Technology)

As ever, I thank all noble Lords who have spoken. I absolutely take, accept and embrace the point that transparency is wholly critical to what we are trying to achieve with the Bill. Indeed, the chandelier of transparency reports should be our shared aim—a greenhouse maybe. I am grateful for everyone’s contributions to the debate. I agree entirely with the views expressed. Transparency is vital in holding companies to account for keeping their users safe online. As has been pointed out, it is also to the benefit of the platforms themselves. Confident as I am that we share the same objectives, I would like to try to reassure noble Lords on a number of issues that have been raised.

Amendments 160A, 160B and 181A in the name of the noble Lord, Lord Knight of Weymouth, seek to require providers to make their transparency reports publicly available, subject to appropriate redactions, and to allow Ofcom to prevent their publication where it deems that the risks posed by drawing attention to illegal content outweigh the benefit to the public of the transparency report. Let me reassure the noble Lord that the framework, we strongly believe, already achieves the aim of those amendments. As set out in Clause 68, Ofcom will specify a range of requirements in relation to transparency reporting in a notice to categories 1, 2A and 2B. This will include the kind of information that is required in the transparency report and the manner in which it should be published. Given the requirement to publish the information, this already achieves the intention of Amendment 160A.

The specific information requested for inclusion within the transparency report will be determined by Ofcom. Therefore, the regulator will be able to ensure that the information requested is appropriate for publication. Ofcom will take into account any risks arising from making the information public before issuing the transparency notice. Ofcom will have separate information-gathering powers, which will enable the regulator to access information that is not suitable to be published in the public domain. This achieves the intention of Amendment 160B. There is also a risk of reducing trust in transparency reporting if there is a mechanism for Ofcom to prevent providers publishing their transparency reports.

Amendment 181A would require Ofcom to issue guidance on what information should be redacted and how this should be done. However, Ofcom is already required to produce guidance about transparency reports, which may include guidance about what information should be redacted and how to do this. It is important to provide the regulator with the flexibility to develop appropriate guidance.

Amendment 165 seeks to expand the information within the transparency reporting requirements to cover the scope of the terms of service set out by user-to-user providers. I very much agree with the noble Lord that it is important that Ofcom can request information about the scope of terms of service, as well as about their application. Our view is that the Bill already achieves this. Schedule 8 sets out the high-level matters about which information may be required. This includes information about how platforms are complying with their duties. The Bill will place duties on user-to-user providers to ensure that any required terms of service are clear and accessible. This will require platforms to set out what the terms of service cover—or, in other words, the scope. While I hope that this provides reassurance on the matter, if there are still concerns in spite of what I have said, I am very happy to look at this. Any opportunity to strengthen the Bill through that kind of clarity is worth looking at.

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

I welcome the Minister’s comments. I am interrupting just because this is my amendment rather than my noble friend Lord Knight’s. The word “scope” caused us some disquiet on this Bench when we were trying to work out what we meant by it. It has been fleshed out in slightly different ways around the Chamber, to advantage.

I go back to the original intention—I am sorry for the extensive introduction, but it is to make sure that I focus the question correctly—which was to make sure that we are not looking historically at the terms of reference that have been issued, and whether they are working in a transparency mode, but addressing the question of what is missing or is perhaps not addressed properly. Does the Minister agree that that would be taken in by the word “scope”?

Photo of Viscount Camrose Viscount Camrose Parliamentary Under Secretary of State (Department for Science, Innovation and Technology)

I think I probably would agree, but I would welcome a chance to discuss it further.

Finally, Amendment 229 intends to probe how Ofcom will review the effectiveness of transparency requirements in the Bill. It would require Ofcom to produce reports reviewing the effectiveness of transparency reports and would give the Secretary of State powers to implement any recommendations made by the regulator. While I of course agree with the sentiment of this amendment, as I have outlined, the transparency reporting power is designed to ensure that Ofcom can continuously review the effectiveness of transparency reports and make adjustments as necessary. This is why the Bill requires Ofcom to set out in annual transparency notices what each provider should include in its reports and the format and manner in which it should be presented, rather than putting prescriptive or static requirements in the Bill. That means that Ofcom will be able to learn, year on year, what will be most effective.

Under Clause 145, Ofcom is required to produce its own annual transparency report, which must include a summary of conclusions drawn from providers’ transparency reports, along with the regulator’s view on industry best practice and other appropriate information—I hope and think that goes to some of the points raised by the noble Lord, Lord Allan of Hallam.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

My Lords, just before the Minister moves on—and possibly to save me finding and reading it—can he let us know whether those annual reports by Ofcom will be laid before Parliament and whether Parliament will have a chance to debate them?

Photo of Viscount Camrose Viscount Camrose Parliamentary Under Secretary of State (Department for Science, Innovation and Technology) 5:15, 25 May 2023

I believe so, but I will have to confirm that in writing. I am sorry not to be able to give a rapid answer.

Clause 159 requires the Secretary of State to review in total the operation of the regulatory framework to ensure it is effective. In that review, Ofcom will be a statutory consultee. The review will specifically require an assessment of the effectiveness of the regulatory framework in ensuring that the systems and processes used by services provide transparency and accountability to users.

The Bill will create what we are all after, which is a new culture of transparency and accountability in the tech sector. For the reasons I have laid out, we are confident that the existing provisions are sufficiently broad and robust to provide that. As such, I hope the noble Lord feels sufficiently reassured to withdraw the amendment.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

My Lords, that was a good, quick debate and an opportunity for the noble Viscount to put some things on the record, and explain some others, which is helpful. It is always good to get endorsement around what we are doing from both the noble Lord, Lord Allan, and the noble Baroness, Lady Fox. That is a great spread of opinion. I loved the sense of the challenge as to whether anyone ever reads the transparency reports whenever they are published; I imagine AI will be reading and summarising them, and making sure they are not written as gobbledygook.

On the basis of what we have heard and if we can get some reassurance that strong transparency is accompanied by strong parliamentary scrutiny, then I am happy to withdraw the amendment.

Amendment 160A withdrawn.

Amendment 160B not moved.

Clause 68 agreed.

Amendment 161 not moved.

Schedule 8: Transparency reports by providers of Category 1 services, Category 2A services and Category 2B services

Amendments 162 to 181 not moved.

Schedule 8 agreed.

Clause 69: OFCOM’s guidance about transparency reports

Amendment 181A not moved.

Clause 69 agreed.

Amendment 182 not moved.

Clause 70: “Pornographic content”, “provider pornographic content”, “regulated provider pornographic content”

Amendments 183 and 183ZA not moved.

Clause 70 agreed.

Clause 71: Scope of duties about regulated provider pornographic content

Amendment 183A not moved.

Clause 71 agreed.

Clause 72: Duties about regulated provider pornographic content

Amendments 183B to 185 not moved.

Clause 72 agreed.

Clause 73 agreed.