Amendment 185A

Online Safety Bill - Committee (9th Day) (Continued) – in the House of Lords at 5:15 pm on 25 May 2023.

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Lord Bassam of Brighton:

Moved by Lord Bassam of Brighton

185A: After Clause 73, insert the following new Clause—“Duties on providers of online marketplace services(1) This section sets out duties that apply in relation to providers of online marketplace services.(2) A duty to put in place proportionate systems and processes to prevent child users from encountering listings of knives for sale on the platform, including (where appropriate) excluding relevant listings from advertising or other algorithms.(3) A duty to put in place proportionate systems and processes to identify and remove listings of knives or similar products which are marketed in a manner which would reasonably appear to a user to—(a) promote violence or threatening behaviour,(b) encourage self-harm, or(c) look menacing. (4) A duty to put in place proportionate systems and processes to ensure, beyond reasonable doubt, that any purchaser of a knife meets or exceeds the minimum legal age for purchasing such items.(5) For the purposes of this section, the online marketplace may have regard to different age restrictions in different parts of the United Kingdom.(6) For the purposes of subsection (3)(c), a knife may look menacing if it is, or appears to be similar to, a “zombie knife”, “cyclone knife” or machete.(7) In this section, “online marketplace service” means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader, which allows consumers to conclude distance contracts with other traders or consumers.”Member’s explanatory statementThis new Clause would introduce duties on online marketplaces to limit child access to listings of knives, and to take proactive steps to identify and remove any listings of knives or similar products which refer to violence or self-harm. While online sales of knives are not illegal, under-18s (under-16s in Scotland) should not be able to purchase them.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Shadow Spokesperson (Energy and Net Zero), Shadow Spokesperson (Science, Innovation and Technology), Shadow Spokesperson (Culture, Media and Sport)

My Lords, I have Amendments 185A and 268AA in this group. They are on different subjects, but I will deal with them in the same contribution.

Amendment 185A is a new clause that would introduce duties on online marketplaces to limit child access to listings of knives and take proactive steps to identify and remove any listings of knives or products such as ornamental zombie knives that are suggestive of acts of violence or self-harm. I am sure the Minister will be familiar with the Ronan Kanda case that has given rise to our bringing this amendment forward. The case is particularly horrible; as I understand it, sentencing is still outstanding. Two young boys bought ninja blades and machetes online and ultimately killed another younger boy with them. It has been widely featured in news outlets and is particularly distressing. We have had some debate on this in another place.

As I understand it, the Government have announced a consultation on this, among other things, looking at banning the sale of machetes and knives that appear to have no practical use other than being designed to look menacing or suitable for combat. We support the consultation and the steps set out in it, but the amendment provides a chance to probe the extent to which this Bill will apply to the dark web, where a lot of these products are available for purchase. The explanatory statement contains a reference to this, so I hope the Minister is briefed on the point. It would be very helpful to know exactly what the Government’s intention is on this, because we clearly need to look at the sites and try to regulate them much better than they are currently regulated online. I am especially concerned about the dark web.

The second amendment relates to racist abuse; I have brought the subject before the House before, but this is rather different. It is a bit of a carbon copy of Amendment 271, which noble Lords have already debated. It is there for probing purposes, designed to tease out exactly how the Government see public figures, particularly sports stars such as Marcus Rashford and Bukayo Saka, and how they think they are supposed to deal with the torrents of racist abuse that they receive. I know that there have been convictions for racist content online, but most of the abuse goes unpunished. It is not 100% clear that much of it will be identified and removed under the priority offence provisions. For instance, does posting banana emojis in response to a black footballer’s Instagram post constitute an offence, or is it just a horrible thing that people do? We need to understand better how the law will act in this field.

There has been a lot of debate about this issue, it is a very sensitive matter and we need to get to the bottom of it. A year and a half ago, the Government responded to my amendment bringing online racist abuse into the scope of what is dealt with as an offence, which we very much welcomed, but we need to understand better how these provisions will work. I look forward to the Minister setting that out in his response. I beg to move.

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

My Lords, I rise to speak primarily to the amendments in the name of my noble friend Lord Clement-Jones, but I will also touch on Amendment 268AA at the same time. The amendments that I am particularly interested in are Amendments 200 and 201 on regulatory co-operation. I strongly support the need for this, and I will illustrate that with some concrete examples of why this is essential to bring to life the kinds of challenges that need to be dealt with.

The first example relates to trying to deal with the sexual grooming of children online, where platforms are able to develop techniques to do that. They can do that by analysing the behaviour of users and trying to detect whether older users are consistently trying to approach younger users, and the kind of content of the messages they may be sending to them where that is visible. These are clearly highly intrusive techniques. If a platform is subject to the general data protection regulation, or the UK version of that, it needs to be very mindful of privacy rights. We clearly have, there, two potentially interested bodies in the UK environment. We have the child protection agencies, and we will have, in future, Ofcom seeking to ensure that the platform has met its duty of care, and we will have the Information Commission’s Office.

A platform, in a sense, can be neutral as to what it is instructed to do by the regulator. Certainly, my experience was that the platforms wanted to do those kinds of activities, but they are neutral in the sense that they will do what they are told is legal. There, you need clarity from the regulators together to say, “Yes, we have looked at this and you are not going to do something on the instruction of the child safety agency and then get criticised, and potentially fined, by the Data Protection Agency for doing the thing you have been instructed to do”—so we need those agencies to work together.

The second example is in the area of co-operation around antiterrorism, another key issue. The platforms have created something called the Global Internet Forum to Counter Terrorism. Within that forum, they share tools and techniques—things such as databases of information about terrorist content and systems that you can use to detect them—and you are encouraged within that platform to share those tools and techniques with smaller platforms and competitors. Clearly, again, there is a very significant set of questions, and if you are in a discussion around that, the lawyers will say, “Have the competition lawyers cleared this?” Again, therefore, something that is in the public interest—that all the platforms should be using similar kinds of technology to detect terrorist content—is something where you need a view not just from the counterterrorism people but also, in our case, from the Competition and Markets Authority. So, again, you need those regulators to work together.

The final example is one which I know is dear to the heart of the noble Baroness, Lady Morgan of Cotes, which is fraudsters, which we have dealt with, where you might have patterns of behaviour where you have information that comes from the telecoms companies regulated by Ofcom, the internet service providers, regulated by Ofcom, and financial institutions, regulated by their own family of regulators—and they may want to share data with each other, which is something that is subject to the Information Commission’s Office again. So, again, if we are going to give platforms instructions, which we rightly do in this legislation, and say, “Look, we want you to get tougher on online fraudsters; we want you to demonstrate a duty of care there”, the platforms will need—certainly those regulators: financial regulators, Ofcom and the Information Commissioner’s Office—to sort those things out.

Having a forum such as the one proposed in Amendment 201, where these really difficult issues can be thrashed out and clear guidance can be given to online services, will be much more efficient than what sometimes happened in the past, where you had the left hand and the right hand of the regulatory world pulling you in different directions. I know that we have the Digital Regulation Cooperation Forum. If we can build on those institutions, it is essential and ideal that they have their input before the guidance is issued, rather than have a platform comply with guidance from regulator A and then get dinged by regulator B for doing the thing that they have been instructed to do.

That leads to the very sensible Amendment 201 on skilled persons. Again, Ofcom is going to be able to call in skilled persons. In an area such as data protection, that might be a data protection lawyer, but, equally, it might be that somebody who works at the Information Commissioner’s Office is actually best placed to give advice. Amendment 200—the first of the two that talks about skilled persons being able to come from regulators—makes sense.

Finally, I will touch on the issues raised in Amendment 268AA—I listened carefully and understand that it is a probing amendment. It raises some quite fundamental questions of principle—I suspect that the noble Baroness, Lady Fox, might want to come in on these—and it has been dealt with in the context of Germany and its network enforcement Act: I know the noble Lord, Lord Parkinson of Whitley Bay, can say that in the original German. That Act went in the same direction, motivated by similar concerns around hate speech.

This raises some fundamental questions about what we want from privacy law and what we want in terms of criminal prosecutions. There is a spectrum of offences, and for some I think we have accepted that platforms should report; on child sexual abuse material, platforms have a duty to report every incidence to the regulator. When it comes to threats to life, the expectation would be clear, so if you have knowledge—this happens—of an imminent terrorist attack or even of somebody who is about to commit suicide, it is clear that you should go to the police or the relevant authorities with that information. Then you have this broad spectrum of other criminal offences which may be problematic. I do not want to minimise the effect on people of hate speech crimes, but they are of a different order, shall we say, from threat-to-life cases, where I think reporting is broadly supported. We have to make a decision there.

My starting point is to be nervous about platforms acting in that policing capacity for offences that are not at the most extreme end of the spectrum. Individuals who are worried about that activity can go to the police directly themselves and can generally take the content to the police—literally; they can print it off—who can make a judgment about whether to go to the Crown Prosecution Service. I worry about the platforms doing it partly from a constitutional point of view, because I am not sure that I want them acting in that quasi-legal capacity, but also, frankly, from a volume point of view. The risk is that if you put this duty on a platform, because it is really hard to understand what is criminal hate speech and what is merely hateful hate speech, the temptation will be to send everything over. If you do that, first, you have a greater violation of privacy, and secondly, you probably have not helped the police, because they get swamped with reports that they cannot manage.

I hope that is a helpful counterargument to the idea that platforms should automatically report material. However, I recognise that it leaves an open question. When people engage in that kind of behaviour online and it has serious real-world consequences, how do we make sure that they do not feel that it is consequence-free—that they understand that there are consequences? If they have broken the law, they should be prosecuted. There may be something in streamlining the process where a complainant goes to the police and the police are able to access the information they need, having first assessed that it is worth prosecuting and illegal, so that we make that loop work first before we head in the direction of having platforms report content en masse because they believe it may have violated laws where we are not at that most serious end of the spectrum.

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

My Lords, so few of us are involved in this discussion that we are now able to write each other’s speeches. I thank the noble Lord, Lord Allan of Hallam, for articulating some of my concerns, probably more elegantly than I will myself. I will focus on two amendments in this group; in fact, there are lots of interesting things, but I will focus on both the amendments from the noble Lord, Lord Bassam of Brighton.

On the issue of proactive steps to remove listings of knives for young people, I am so sympathetic to this because in a different area of my life I am pretty preoccupied with the problem of knife crime among young people. It really bothers me and I worry about how we tackle it. My concern of course is that the police should be working harder to solve that problem and that we cannot anticipate that the Bill will solve all social problems. There is a danger of removing the focus from law enforcement in a real-world problem, as though removing how you buy the knife is the issue. I am not convinced that that helps us.

I wanted to reflect on the kind of dilemmas I am having around this in relation to the story of Mizzy that is doing the rounds. He is the 18 year-old who has been posting his prank videos on TikTok and has caused quite a stir. People have seen him wandering into strangers’ homes uninvited, asking random people in the street if they want to die, running off with an elderly lady’s dog and making fun of Orthodox Jews—generally speaking, this 18 year-old is obnoxious. His TikTok videos have gone viral; everybody is discussing them.

This cruelty for kicks genre of filming yourself, showing your face full to the camera and so on, is certainly abhorrent but, as with the discussion about knife crime, I have noticed that some people outside this House are attempting to blame the technology for the problem, saying that the videos should have been removed earlier and that it is TikTok’s fault that we have this anti-social behaviour, whereas I think it is a much deeper, broader social problem to do with the erosion of adult authority and the reluctance of grown-ups to intervene clearly when people are behaving badly—that is my thesis. It is undoubtedly a police matter. The police seem to have taken ages to locate Mizzy. They eventually got him and charged him with very low offences, so he was on TV being interviewed the other evening, laughing at how weak the law was. Under the laws he was laughing at, he could freely walk into somebody’s house or be obnoxious and get away with it. He said, “We can do what we want”. That mockery throws up problems, but I do not necessarily think that the Bill is the way to solve it.

That leads me to my concerns about Amendment 268AA, because Mizzy was quoted in the Independent newspaper as saying:

“I’m a Black male doing these things and that’s why there’s such an uproar”.

I then went on a social media thread in which any criticism of Mizzy’s behaviour was described as racist harassment. That shows the complexity of what is being called for in Amendment 268AA, which wants platforms to take additional steps

“to combat incidents of online racially aggravated harassment”.

My worry is that we end up with not only Mizzy’s TikTok videos being removed but his critics being removed for racially harassing him, so we have to be very careful here.

Amendment 268AA goes further, because it wants tech companies to push for prosecution. I really think it is a dangerous step to encourage private companies to get tangled up in deciding what is criminal and so on. The noble Lord, Lord Allan, has exactly described my concerns, so I will not repeat them. Maybe I can probe this probing amendment. It also broadens the issue to all forms of harassment.

By the way, the amendment’s explanatory statement mentions the appalling racist abuse aimed at footballers and public figures, but one of the fascinating things was that when we number-crunched and went granular, we found that the majority of that racist abuse seemed to have been generated by bots, which takes us to the position of the noble Lord, Lord Knight, earlier: who would you prosecute in that instance? Bots not even based in the UK were generating what was assumed to be an outbreak of racist abuse among football fans in the UK, but the numbers did not equate to that. There were some people being racist and vile and some things that were generated in these bot farms.

To go back to the amendment, it goes on to broaden the issue out to

“other forms of harassment and threatening or abusive behaviour”.

Again, this is much more complicated in today’s climate, because those kinds of accusation can be deployed for bad faith reasons, particularly against public figures.

We have an example close to this House. I hope that Members have been following and will show solidarity over what has been happening to the noble Baroness, Lady Falkner of Margravine, who is chair of the Equality and Human Rights Commission and tasked with upholding the equality law but is at the centre of a vicious internal row after her officials filed a dossier of complaints about her. They have alleged that she is guilty of harassment. A KC is being brought in, there are 40 complaints and the whole thing is costing a fortune for both taxpayers and the noble Baroness herself.

It coincided with the noble Baroness, Lady Falkner, advising Ministers to update the definition of sex in the Equality Act 2010 to make clear that it refers to biological sex and producing official advice clarifying that trans women can be lawfully excluded from female-only spaces. We know how toxic that whole debate is.

Many of us feel that a lot of the accusations against the noble Baroness are ideologically and politically motivated vexatious complaints. I am distressed to read newspaper reports that say that she has been close to tears and has asked why anyone would go into public service. All this is for the crime of being a regulator upholding and clarifying the law. I hope it does not happen to the person who ends up regulating Ofcom—ending up close to tears as he stands accused of harassment, abusive behaviour and so on.

The point is that she is the one being accused of harassment. I have seen the vile abuse that she has received online. It is completely defamatory, vicious abuse and yet somehow it ends up being that, because she does not provide psychological safety at work and because of her views, she is accused of harassment and is the one in the firing line. I do not want us to introduce that kind of complexity—this is what I have been worried about throughout—into what is banned, removed or sent to the police as examples of harassment or hate crime.

I know that is not the intention of these amendments; it is the unintended consequences that I dread.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I will speak chiefly to Amendment 262 in my name, although in speaking after the noble Baroness, Lady Fox, who suggested that the grown-ups should control anti-social behaviour by young people online, I note that there is a great deal of anti-social behaviour online from people of all ages. This is relevant to my Amendment 262.

It is a very simple amendment and would require the Secretary of State to consult with young people by means of an advisory board consisting of people aged 25 and under when reviewing the effectiveness and proportionality of this legislation. This amendment is a practical delivery of some of the discussion we had earlier in this Committee when we were talking about including the Convention on the Rights of the Child in the Bill. There is a commonly repeated phrase, “Nothing about us without us”. It was popularised by disability activists in the 1990s, although in doing a little research for this I found that it originates in Latin in Poland in the 15th century. So it is an idea that has been around for a long while and is seen as a democratic standard. It is perhaps a variation of the old “No taxation without representation”.

This suggestion of an advisory board for the Secretary of State is because we know from the discussion earlier on the children’s rights amendments that globally one in three people online is a child under the age of 18. This comes to the point of the construction of your Lordships’ House. Most of us are a very long way removed in experiences and age—some of us further than others. The people in this Committee thinking about a 12 year-old online now are parents, grandparents and great-grandparents. I venture to say that it is very likely that the Secretary of State is at least a generation older than many of the people who will be affected by its provisions.

This reflects something that I also did on the Health and Care Bill. To introduce an advisory panel of young people reporting directly to the Secretary of State would ensure a direct voice for legislation that particularly affects young people. We know that under-18s across the UK do not have any role in elections to the other place, although 16 and 17 year-olds have a role in other elections in Wales and Scotland now. This is really a simple, clear, democratic step. I suspect the Minister might be inclined to say, “We are going to talk to charities and adults who represent children”. I suggest that what we really need here is a direct voice being fed in.

I want to reflect on a recent comment piece in the Guardian that made a very interesting argument: that there cannot be, now or in the future, any such thing as a digital native. Think of the experience of someone 15 or 20 years ago; yes, they already had the internet but it was a very different beast to what we have now. If we refer back to some of the earlier groups, we were starting to ask what an internet with widespread so-called generative artificial intelligence would look like. That is an internet which is very different from even the one that a 20 year-old is experiencing now.

It is absolutely crucial that we have that direct voice coming in from young people with experience of what it is like. They are an expert on what it is like to be a 12 year-old, a 15 year-old or a 20 year-old now, in a way that no one else can possibly be, so that is my amendment.

I will briefly comment on a couple of other amendments in this group. I am really hoping that the Minister is going to say that the Government will agree with the amendments that replace the gendered term “chairman” with chair. I cannot imagine why we are still writing legislation in 2023 with such gendered terms.

I also want to comment on the amendments from the noble Lord, Lord Stevenson of Balmacara, whom we have not heard from yet. They are Amendments 202ZA and 210A, both of which refer to “journalistic material” and sources. What I want to put on record relates to the Minister’s response to my comments on journalistic sources and encryption on day 3 in Committee. He said then that

“there is no intention or expectation that the tools required to be used under this power would result in a compromising of those sources”.—[Official Report, 27/4/23; col. 1325.]

He was referring to journalistic sources. I have had a great number of journalists and their representatives reaching out to me, pointing to the terms used by the Minister. They have said that if those algorithms, searches or de-encryption tools are let loose, there is no way of being able to say, “That’s a bit of journalism, so the tool’s not going to apply to it”. That simply does not add up. The amendments in this group are getting into that much broader issue, so I look forward to hearing from the noble Lord, Lord Stevenson, on them.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Science, Innovation and Technology) 5:45, 25 May 2023

My Lords, this is the most miscellaneous of all the groups that we have had, so it has rightly been labelled as such—and the competition has been pretty strong. I want to come back to the amendments of the noble Lord, Lord Stevenson, and of the noble Lord, Lord Bassam, but first I want to deal with my Amendments 200 and 201 and to put on the record the arguments there.

Again, if I refer back to our joint report, we were strongly of the view—alongside the Communications and Digital Committee—that there should be a statutory requirement for regulators

“to cooperate and consult with one another”.

Although we welcomed the formation of the DRCF, it seemed to us that there should be a much firmer duty. I was pleased to hear the examples that my noble friend put forward of the kinds of co-operation that will be needed. The noble Baroness, Lady Morgan, clearly understands that, particularly in the area of fraud, it could be the FCA or ICO, and it could be Ofcom in terms in social media. There is a range of aspects to this—it could be the ASA.

These bodies need to co-operate. As my noble friend pointed out, they can apparently conflict; therefore, co-operating on the way that they advise those who are subject to regulation is rather important. It is not just about the members of the Digital Regulation Cooperation Forum. Even the IWF and the ASA could be included in that, not to mention other regulators in this analogous space. That forum has rightly been labelled as “Digital”, and digital business is now all-pervasive and involves a huge number of regulatory aspects.

Although in this context Ofcom will have the most relevant powers and expertise, and many regulators will look to it for help in tackling online safety issues, effective public protection will be achieved through proper regulatory co-operation. Therefore, Ofcom should be empowered to co-operate with others to share information. As much as it can, Ofcom should be enabled to work with other regulators and share online safety information with them.

It has been very heartening to see the noble Lord, Lord Grade, in his place, even on a Thursday afternoon, and heartening how Ofcom has engaged throughout the passage of the Bill. We know the skills that it is bringing on board, and with those skills we want it to bring other regulators into its work. It seems that Ofcom is taking the lead on those algorithmic understanding skills, but we need Ofcom to have the duty to co-operate with the other regulators on this as well.

Strangely, in Clause 103 the Bill gives Ofcom the general ability to co-operate with overseas regulators, but it is largely silent on co-operation with UK regulators. Indeed, the Communications Act 2003 limits the UK regulators with which Ofcom can share information, excluding the ICO, for example, which is rather perverse in these circumstances. However, the Bill has a permissive approach to overseas regulators so, again, it should extend co-operation and information-sharing in respect of online safety to include regulators overseeing the offences in Schedule 7 that we have spent some time talking about today—the enforcement authorities, for instance, those responsible for enforcing the offences in relation to priority harms to children and priority offences regarding adults. Elsewhere in regulation, the Financial Conduct Authority may have a general duty to co-operate. The reverse may be true, so that duty of co-operation will need to work both ways.

As my noble friend Lord Allan said, Amendment 200, the skilled persons provision, is very straightforward. It is just to give the formal power to be able to use the expertise from a different regulator. It is a very well-known procedure to bring skilled persons into inquiries, which is exactly what is intended there.

Both amendments tabled by the noble Lord, Lord Bassam, are rather miscellaneous too, but are not without merit, particularly Amendment 185A. Please note that I agree with the noble Baroness, Lady Fox. I 100% support the intention behind the amendment but wonder whether the Bill is the right vehicle for it. No doubt the Minister will answer regarding the scope and how practical it would be. I absolutely applaud the noble Lord for campaigning on this issue. It is extraordinarily important, because we have seen some tragic outcomes of these weapons being available for sale online.

Amendment 268AA, also tabled by the noble Lord, Lord Bassam, is entirely different. Our Joint Committee heard evidence from Edleen John of the FA and Rio Ferdinand about abuse online. It was powerful stuff. I tend to agree with my noble friend. We have talked about user empowerment, the tools for it and, particularly in the context of violence against women and girls, the need for a way to be able to report that kind of abuse or other forms of content online. This is a candidate for that kind of treatment. While platforms obviously need to prevent illegal content and have systems to prevent it and so on, having assessed risk in the way that we have heard about previously, I do not believe that expecting the platforms to pick it up and report it, turning them into a sort of proto-enforcer, is the most effective way. We have to empower users. I absolutely share the objectives set out.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Shadow Spokesperson (Energy and Net Zero), Shadow Spokesperson (Science, Innovation and Technology), Shadow Spokesperson (Culture, Media and Sport)

My Lords, when I brought an amendment to a police Bill, my local football club said to me that it was anticipating spending something like £100,000 a year trying to create and develop filters, which were commercially available, to stop its footballers being able to see the abuse that they were getting online. It did that for a very sensible commercial reason because those footballers’ performance was affected by the abuse they got. I want to know how the noble Lord sees this working if not by having some form of intervention that involves the platforms. Obviously, there is a commercial benefit to providers of filters et cetera, but it is quite hard for those who have been victims to see a way to make this useful to them without some external form of support.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Science, Innovation and Technology)

I absolutely take what the noble Lord is saying, and I am not saying that the platforms do not have responsibility. Of course they do: the whole Bill is about the platforms taking responsibility with risk assessment, adhering to their terms of service, transparency about how those terms are operating, et cetera. It is purely on the question of whether they need to be reporting that content when it occurs. They have takedown responsibilities for illegal content or content that may be seen by children and so on, but it is about whether they have the duty to report to the police. It may seem a relatively narrow point, but it is quite important that we go with the framework. Many of us have said many times that we regret the absence of “legal but harmful” but, given where we are, we basically have to go with that architecture.

I very much enjoyed listening to the noble Baroness, Lady Bennett. There is no opportunity lost in the course of the Bill to talk about ChatGPT or GPT-4, and that was no exception. It means that we need to listen to how young people are responding to the way that this legislation operates. I am fully in favour of whatever mechanism it may be. It does not need to be statutory, but I very much hope that we do not treat this just as the end of the process but will see how the Bill works out and will listen and learn from experience, and particularly from young people who are particularly vulnerable to much of the content, and the way that the algorithms on social media work.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat Lords Spokesperson (Science, Innovation and Technology)

I am so sorry. With due respect to the noble Lord, Lord Stevenson, the noble Baroness, Lady Bennett, reminded me that his Amendments 202ZA and 210A, late entrants into the miscellaneous group, go very much with the grain that we are trying to get in within the area of encryption. We had quite a long debate about encryption on Clause 110. As ever, the noble Lord has rather cunningly produced something that I think will get us through the eye of the free speech needle. They are two very cunning amendments.

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

I thank the noble Lord for that. Free expression, my Lords, not free speech.

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

Yes, freedom of expression. That is right.

I will start where the noble Lord, Lord Clement-Jones, finished, although I want to come back and cover other things. This is a very complicated group. I do not think we can do it quickly, as each issue is important and is worth trying to take forward.

Amendments in my name that came very late have been included here. Unfortunately, we did not have time to degroup them. I think they would have been better on their own, but they are here, and we will have the debate. Amendments 202ZA and 210A look as if they have come from a very different place, but, as the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Bennett, have said, they are a continuation of the debate we were having a couple of days ago on encryption. They are proposed as a compromise.

I hope that the end result will be that I will not move them, but that we can have an offline meeting about them to see whether there is a way forward on this. We left the debate on the powers the Bill attempts to take on encryption in a slightly unbalanced place. It is clear that, for very good and persuasive reasons, where there may be criminality happening on an encrypted service, powers will have to be available to those responsible for prosecuting that criminal activity so that they can access the necessary evidence. We do not dispute that at all.

How do you do that when it is fully encrypted and breaking the encryption raises dangers and difficulties? How do you do it if you are relying on not fully tested technological solutions which require giving powers to Ofcom to commission and operate through the companies a procedure we do not yet know will exist? It may work for indecent images but almost certainly will not work for counterterrorism. How do you do it in a way which is guided by the principle that the ability to get the data, when the material has been transmitted in an encrypted form, should not be at the expense of freedom of expression? Therefore, a technical solution looks like a possible winner. It may be in the future, but I do not believe we are there yet, but we have been promised a meeting on this topic and I am looking forward to it.

Thinking again about this and having been in receipt of further correspondence from others outside who have been watching this debate very closely, the amendments to Clauses 110 and 112 are suggested as a compromise which might get us to that point. It takes us down a slightly different route—I am not sure that this has been explored with the Bill team and therefore we should have a meeting to discuss it—of trying to dig a bit deeper into what would constitute a reasonable ground for persuading those responsible for hosting encrypted material and arguing convincingly that there is evidence to break their rule of non-interference, at least to the stage of metadata. The key here is not the content itself, but the ability to reach back to those attempting to use encrypted systems for criminal or other illegal behaviour.

In that sense, what is proposed here is a requirement for Ofcom, if it is left with Ofcom. I still believe it would be better if there were a third-party review of that on a judicial level following the RIPA proposals. It is a suggestion which might command support in the industry by allowing for a definitional approach making sure that we are talking about proper journalistic material and allowing that to be taken as a route forward so that there would be reassurance for those who are concerned on the journalistic side that the material would not be accessed and used in a way which would be detrimental to their activity and it could be protected. I will not take it any further than that, unless others would like it. That is the purpose behind this amendment. I am sorry that it was late, and it should not really have been in this group, but it is good to have got it on the table. I hope it will feed into the discussions we are due to have.

Having said that, I will briefly go back to my noble friend Lord Bassam’s amendments. The noble Lord, Lord Clement-Jones, made a couple of the points I wanted to make, but I will reinforce them. I am particularly glad that my noble friend came, given that his throat is as bad as it is—I am sure that it is entirely due to his overenthusiastic support for his football team. No doubt he celebrated late into the night its success in getting into the Europa competition. I never use sporting metaphors, but I have to use one for my noble friend Lord Bassam.

On knives, I am pleased to see this here—we had a good response to it, and I look forward to the Minister’s response. I first came across this issue when I was relatively new in your Lordships’ House. I had a placement with the Met, over a period of time, to get to know how it worked and everything else. It was a fantastic experience that was organised well; anyone who has not done it should do it. It is a good way of learning a bit more about something that is clearly in the public consciousness at the moment.

One of my visits was to a group of young officers operating in and around Brixton. I spent three days there and experienced a riot that they had not anticipated, which was quite exciting. The main point was that we spoke a lot about knives and their role in society. The evidence I saw, in practice, was that this was a burgeoning problem that the police were not well equipped to deal with—this was five or six years ago. It was not for want of trying; it was just that the way the gang culture operated in Brixton, as I understood it, was that the responsibility for enrolling, for maintaining discipline and, subsequently, for operating a gang there was largely governed by rules well away from those recognised in civilised society. The methods of control were knives being placed into the bodies of persons who were being disciplined. The police had no way of coping with that.

Part of the problem with this, as my noble friend Lord Bassam mentioned, is the supply of very unpleasant weapons coming in, usually ordered through the dark web. Again, the police felt that they did not have the equipment, knowledge, skills or even the time to track them down. They were always chasing their tail and were never catching up—they could never keep ahead of it. A really important issue is buried in this amendment; we need to consider it more broadly and society needs to take account of it. If there is an issue within the Bill that should be addressed, it is that. We would like it discussed and hope it will be thought about and implemented if possible.

On Amendment 268AA, I will go back to what the noble Lord, Lord Clement-Jones, said about the evidence we received in the Joint Committee—it was extraordinarily powerful, particularly that from Rio Ferdinand but also that from others who accompanied him on that occasion—about the impact that the internet was having on the health and well-being of players, particularly those affected by abuse after games. He said—I am sure that he will not mind me referring to this—that, before the internet got to the point where it is now, there was still terrible abuse in the stadiums when you were playing, but, because it did not come with you when you left the stadium, you were able to relax, go home and get away from it. But, with the internet, you see it on your timeline and in tweets, and it is sent to you by your friends—and it became impossible and 24/7. It became a real burden, and he saw the impact on younger players—we have seen plenty of evidence of that.

When we reflected in the committee as a result of that evidence, we were working with a version of the Bill that had Clause 11, on legal but harmful content. We were trying to find ways to get a better sense and balance. The committee clearly said that it did not think that legal but harmful was an appropriate way forward, but we certainly also recognised that that meant that a process would have to be in place to deal with material that is not what society wishes to see circulating and influencing the process and young people in particular. We recognised then that there was a problem with having an online safety Act that does not require companies to act on misogynous abuse or hatred being stirred up against coloured or disabled people, to give but two examples of where the gap would emerge. Although we recommended that the legal but harmful clause should be removed, we said that there had to be

“a statutory requirement on providers to have in place proportionate systems and processes to identify and mitigate reasonably foreseeable risks of harm arising from regulated activities defined under the Bill”.

We are not there yet.

Amendment 268AA in the name of my noble friend Lord Bassam gets us a little into the issues of racially aggravated behaviour, harassment and other forms of abuse, and I am very interested to hear what the Government’s response to it will be. I am not sure that we have the tools yet in the Bill, or in the terms of reference approach that has been taken, that would allow that proposal to happen, but maybe the Minister will be able to help us with this when he responds.

I will touch on other amendments in this group. I hope that we will receive a positive response to the amendment from my noble friend Lady Merron, who unfortunately cannot be with us at the moment, in relation to instances of gendered language.

The amendments proposed and spoken to by the noble Lord, Lord Clement-Jones, are important in themselves, but also play to a bigger point, particularly Amendment 201. We do not have much down on this in relation to the question of how Ofcom will relate to other regulators, but the case he made was very persuasive. I hope that the Minister can say something about that. The idea is that we will muddle on with the existing arrangement of informal networking between very powerful regulators—each of whom will have, as the noble Lord said, sometimes conflicting rules about how things go—which can be brokered through a co-operation agreement. But it would be better if it were accompanied by a set of real powers to work together, including joint powers in cases where there are issues affecting both personal data and the impact that Ofcom will have in relation to companies’ operations. We should also recognise that there will be other regulators joining the club every year that will need to be involved and processed. Some basic understanding of the rules—maybe not in the Bill, but certainly forecast to be brought forward in a future piece of legislation—seems to be vital to give them the context with which they can begin to work together and from which we can learn the lessons that will be necessary when new powers are prepared. I am very supportive of Amendment 201, and I hope that there will be a positive thought about how we might take it forward.

The noble Lord, Lord Bethell, is not in his place so, presumably, will not speak to his Amendment 220D, which would give Ofcom powers to delegate some of its regulated powers to another body. Other similar amendments are coming up later, so maybe that point will be picked up then. However, I will put on the record, as the noble Baroness, Lady Stowell, has said on other occasions, that there are problems with simply adding other regulators into what is a very powerful statutory body, particularly if they are not, in any way, public bodies themselves. With no disrespect to those currently working in them, I think that, where are a charitable body or a private company is engaging with bodies such as Ofcom, there should be no question of statutory powers being delegated to them; that must not happen. A form of contract for particular work to be delivered under the control of the statutory body, Ofcom, is fine, but we should not be talking about coequal powers; that would be wrong.

Finally, I do not want to anticipate the Minister in introducing the amendments in his name, but we have no objections to them. I am sure that they will work exactly as he proposes and that they will be acceptable.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Parliamentary Under Secretary of State (Department for Culture, Media and Sport) 6:00, 25 May 2023

My Lords, this has been miscellany, indeed. We must be making progress if we are picking up amendments such as these. I thank noble Lords who have spoken to the amendments and the issues covered in them.

I turn first to Amendment 185A brought to us by the noble Lord, Lord Bassam of Brighton, which seeks to add duties on online marketplaces to limit children’s access to the sale of knives, and proactively to identify and remove listings which appear to encourage the sale of knives for the purposes of violence or self-harm. Tackling knife crime is a priority for His Majesty’s Government; we are determined to crack down on this violent scourge, which is devastating our communities. I hope that he will forgive me for not drawing on the case he mentioned, as it is still sub judice. However, I certainly take the point he makes; we are all too aware of cases like it up and down the country. I received an email recently from Amanda and Stuart Stephens, whose son, Olly, was murdered by two boys, one of whom was armed with a knife. All these cases are very much in our minds as we debate the Bill.

Let me try to reassure them and the noble Lord as well as other Members of the Committee that the Bill, through its existing duties and other laws on the statute book, already achieves what the noble Lord seeks with his amendment. The sale of offensive weapons and of knives to people under the age of 18 are criminal offences. Any online retailer which directly sells these prohibited items can already be held criminally liable. Once in force, the Bill will ensure that technology platforms, including online marketplaces, prevent third parties from using their platform to sell offensive weapons or knives to people under the age of 18. The Bill lists both these offences as priority offences, meaning that user-to-user services, including online marketplaces, will have a statutory obligation proactively to prevent these offences taking place on their services.

I am grateful to the noble Lord, Lord Stevenson of Balmacara, for his support for the government amendments. The Government are committed to ensuring that the regime set up by the Bill is cost-neutral to the taxpayer. As such, it will be funded via annual fees on regulated services the revenue from which is at or above a set revenue threshold. At present, Ofcom is preparing for its new duties as regulator, and funding this by the retention of receipts under the Wireless Telegraphy Act 2006. Once the Bill that we are debating in this Committee is in place, Ofcom will charge fees to recoup this money alongside funding its ongoing costs. As the Bill is still before this Committee, Ofcom has not yet been granted the information-gathering powers which are necessary to prepare the fee regime. This means it cannot issue information requests for financial information from firms. As such, only when the Bill passes will Ofcom be able to begin implementing the fee regime.

In consideration of this, the Government have decided that fees should be charged from the financial year 2025-26 at the earliest. The decision does not affect implementation timings for any other areas of the regime. Amendments 186A to 186C will ensure that the fee regime functions in a fair and practical manner under these timings. The amendments ensure that the costs that Ofcom incurs while preparing for, and exercising, its online safety functions are met by the retention of receipts under the Wireless Telegraphy Act, up until the point when the fee regime is operational. They also ensure that these costs are recovered in a proportionate manner by extending the Schedule 10 recouping regime. I hope that that will have the support of this Committee.

Amendment 200 seeks to expand the definition of “skilled person” to include a regulator or self-regulatory body. I assure the noble Lord, Lord Allan of Hallam, that the Bill’s definition of a “skilled person” is already sufficiently broad to include a regulator or self-regulatory body. As set out in Clause 207(1), the Bill’s existing definition of “person” includes “any organisation or association of persons”. This means that the Bill’s definition of “skilled person” enables Ofcom to appoint an individual, organisation, body of persons or association of persons which appears to it to have the skills necessary to prepare a specific report. That includes a regulator or self-regulatory body, as the noble Lord’s amendment suggests.

On regulatory co-operation, I am conscious that I promised the noble Lord, Lord Russell of Liverpool, further details on this when he asked about it in an earlier grouping, so I shall set them out now so that he can consult them in the official record. I reassure the noble Lord and other noble Lords that Ofcom has strong existing relationships with domestic regulators. That has been supported by the establishment of the Digital Regulation Cooperation Forum, which we have discussed before. Effective regulatory co-ordination is essential for addressing the cross-cutting opportunities and challenges posed by digital technologies and services.

The creation of the forum was a significant step forward in delivering greater coherence at the institutional level and has been widely welcomed by industry and consumer representatives. Its formation has been particularly timely in bringing together the key regulators involved in the proposed new online safety, data and digital competition regimes. Its work has already delivered real and wide-ranging impact, including landmark policy statements clarifying the interactions between digital regulatory regimes, research into cross-cutting issues and horizon-scanning activities on new regulatory challenges. It is important to note that the Information Commissioner’s Office is a member of the forum. We will continue to assess how best to support collaboration between digital regulators and ensure that their approaches are joined up.

In addition, Ofcom already has a statutory footing to share information with UK regulators under the Communications Act 2003. Section 393 of that Act includes provisions for sharing information between Ofcom and other regulators in the UK, such as the Information Commissioner’s Office, the Financial Conduct Authority and the Competition and Markets Authority. So, we believe the issues set out in the amendment are covered.

Let me turn now to the cunning amendments from the noble Lord, Lord Stevenson, which seek to introduce special provisions to apply in cases where a notice issued under Clause 110 would involve the monitoring of journalistic material or material identifying journalistic sources. I appreciate the way he has set those out and I am very happy to have the more detailed discussion with the Bill team that he suggested. Let me just say, though, that the Government are fully committed to protecting the integrity of journalistic material and there is no intention that the technologies required under Clause 110 in relation to private communications would identify anything other than child sexual abuse and exploitation content. These powers are subject to strong safeguards to protect the privacy of all users. Any technologies required on private communications must be accredited by Ofcom as being highly accurate in detecting only child sexual exploitation and abuse content. These minimum standards of accuracy will be approved and published by the Secretary of State following advice from Ofcom and will ensure that it is highly unlikely that journalistic material that is not such content would be erroneously flagged or removed.

Photo of Lord Stevenson of Balmacara Lord Stevenson of Balmacara Shadow Spokesperson (Science, Innovation and Technology) 6:15, 25 May 2023

I am sorry to interrupt. The Minister has twice given a positive response, but he limited it to child sexual exploitation; he did not mention terrorism, which is in fact the bigger issue. Could he confirm that it is both?

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Parliamentary Under Secretary of State (Department for Culture, Media and Sport)

Yes, and as I say, I am happy to talk with the noble Lord about this in greater detail. Under the Bill, category 1 companies will have a new duty to safeguard all journalistic content on their platform, which includes citizen journalism. But I will have to take all these points forward with him in our further discussions.

My noble friend Lord Bethell is not here to move his Amendment 220D, which would allow Ofcom to designate online safety regulatory duties under this legislation to other bodies. We have previously discussed a similar issue relating to the Internet Watch Foundation, so I shall not repeat the points that we have already made.

On the amendments on supposedly gendered language in relation to Ofcom advisory committees in Clauses 139 and 155, I appreciate the intention to make it clear that a person of either sex should be able to perform the role of chairman. The Bill uses the term “chairman” to be consistent with the terminology in the Office of Communications Act 2002, and we are confident that this will have no bearing on Ofcom’s decision-making on who will chair the advisory committees that it must establish, just as, I am sure, the noble Lord’s Amendment 56 does not seek to be restrictive about who might be an “ombudsman”.

I appreciate the intention of Amendment 262 from the noble Baroness, Lady Bennett of Manor Castle. It is indeed vital that the review reflects the experience of young people. Clause 159 provides for a review to be undertaken by the Secretary of State, and published and laid before Parliament, to assess the effectiveness of the regulatory framework. There is nothing in the existing legislation that would preclude seeking the views of young people either as part of an advisory group or in other ways. Moreover, the Secretary of State is required to consult Ofcom and other persons she considers appropriate. In relation to young people specifically, it may be that a number of different approaches will be effective—for example, consulting experts or representative groups on children’s experiences online. That could include people of all ages. The regulatory framework is designed to protect all users online, and it is right that we take into account the full spectrum of views from people who experience harms, whatever their age and background, through a consultation process that balances all their interests.

Amendment 268AA from the noble Lord, Lord Bassam, relates to reporting requirements for online abuse and harassment, including where this is racially motivated—an issue we have discussed in Questions and particularly in relation to sport. His amendment would place an additional requirement on all service providers, even those not in scope of the Bill. The Bill’s scope extends only to user-to-user and search services. It has been designed in this way to tackle the risk of harm to users where it is highest. Bringing additional companies in scope would dilute the efforts of the legislation in this important regard.

Clauses 16 and 26 already require companies to set up systems and processes that allow users easily to report illegal content, including illegal online abuse and harassment. This amendment would therefore duplicate this existing requirement. It also seeks to create an additional requirement for companies to report illegal online abuse and harassment to the Crown Prosecution Service. The Bill does not place requirements on in-scope companies to report their investigations into crimes that occur online, other than child exploitation and abuse. This is because the Bill aims to prevent and reduce the proliferation of illegal material and the resulting harm it causes to so many. Additionally, Ofcom will be able to require companies to report on the incidence of illegal content on their platforms in its transparency reports, as well as the steps they are taking to tackle that content.

I hope that reassures the noble Lord that the Bill intends to address the problems he has outlined and those explored in the exchange with the noble Lord, Lord Clement-Jones. With that, I hope that noble Lords will support the government amendments in this group and be satisfied not to press theirs at this point.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Shadow Spokesperson (Energy and Net Zero), Shadow Spokesperson (Science, Innovation and Technology), Shadow Spokesperson (Culture, Media and Sport)

My Lords, I listened very carefully to the Minister’s response to both my amendments. He has gone some way to satisfying my concerns. I listened carefully to the concerns of the noble Baroness, Lady Fox, and noble Lords on the Lib Dem Benches. I am obviously content to withdraw my amendment.

I do not quite agree with the Minister’s point about dilution on the last amendment—I see it as strengthening —but I accept that the amendments themselves slightly stretch the purport of this element of the legislation. I shall review the Minister’s comments and I suspect that I shall be satisfied with what he said.

Amendment 185A withdrawn.

Clauses 74 to 78 agreed.

Clause 79: OFCOM’s fees statements

Amendment 186 not moved.