To move that this House takes note of the report from the Communications and Digital Committee Free for All? Freedom of Expression in the Digital Age (1st Report, Session 2021-22, HL Paper 54).
My Lords, I am pleased to introduce this debate on the report of the Communications and Digital Committee, Free for All? Freedom of Expression in the Digital Age. I am very grateful to our outstanding committee staff. Our clerk was Alasdair Love and our policy analyst was Theo Demolder. Rita Cohen once again provided them and us with invaluable support and Dr Ella McPherson provided expert advice throughout the inquiry.
I am grateful too to noble Lords on the committee, many of whom are speaking today and all of whom brought great experience and expertise to this report. The committee is thriving under the fine leadership of my noble friend Lady Stowell of Beeston; I am very much looking forward to her contribution today.
This report was published under my chairmanship in July last year, since when there have been many significant developments and changes in digital regulation and more widely. I was privileged to sit on the Joint Scrutiny Committee for the Online Safety Bill which reported at the end of last year.
Having heard the debate on the demonstrations in Iran, we have to reflect that free speech is still something to be cherished and something that brave people are dying for today. Freedom of expression is about not being prevented from speaking one’s own mind. It is the bedrock of free societies. Although it is subject to important legal limits, including against the incitement of violence and defamation, we must remember what Lord Justice Warby referred to in one judgment as
“the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another.”
It was evidence taken during our previous inquiry on the future of journalism that led us to turn to freedom of expression. We had heard about how the market power of Google and Facebook was threatening media freedom. I am very pleased that the committee is continuing to champion the media and pursue our recommendation for an Australian-style mandatory bargaining code to ensure that publishers receive fair compensation for the use of their content.
It was clear from the outset of this inquiry that there are two major problems online. The first is the dissemination by platforms of the worst kind of content: that which is either illegal or harmful to children. The other problem is the opposite: platforms removing legitimate content or treating some political viewpoints more favourably than others. Among many examples we heard about were Twitter banning Donald Trump while still allowing Ayatollah Khamenei to incite violence against Israel and praise jihadi groups; and Facebook choosing to treat a New York Post story as misinformation, with no evidence, at the same time as taking no action against Chinese state media when they spread lies about the genocide in Xinjiang.
My Lords, I rise not because there is even more power in having “early” next to my name on the speakers’ list, but because the noble Lord, Lord Bassam, has had to withdraw—I hope for non-serious reasons. We will miss his contribution.
I sincerely congratulate the noble Lord, Lord Gilbert, and the committee, for an excellent report and, as he has indicated, a timely one, as we move to the Online Safety Bill in the very near future, hopefully. I also look forward to the noble Baroness, Lady O’Neill, following me. My mother, who was born in 1900 and left school at 13, was something of a philosopher herself, and used to tell me, “Sticks and stones will break your bones, but names can never hurt you.” That provided me with a certain resilience for my chosen profession of politics, but it is only partly true. Misinformation, fake news, and plain old-fashioned lies have been the prelude to tyranny, torture and murder throughout history.
Liberal democracies are particularly susceptible to such attacks. I am not talking about the Liberal Democrats but about that wave of parties in all free societies who believe in the freedom of speech that the noble Lord, Lord Gilbert referred to, to free Parliament and the rule of law by an independent judiciary. They are particularly susceptible because they have built into their DNA a certain tendency towards tolerance and freedom of speech, and a reluctance to claim absolute certainties. I miss from these Benches today the late Lord Russell. Conrad would say, in response to a particularly dogmatic colleague, “I wish I could be as sure about one thing as the noble Lord is about everything.”
I have time to make only three short points. First, I commend the four regulators—Ofcom, the ICO, the CMA and the FSA—for the work they do to consult and co-ordinate, and I urge them to extend this to further protect the rights of citizens and consumers. I associate myself with the call from the noble Lord, Lord Gilbert, for the early establishment of the digital markets unit.
My Lords, this is a rich, detailed and informative report, yet one underlying issue has perhaps gone to the margins: the focus on freedom of expression. Nowadays, we often use the term “freedom of expression” as though it were a synonym for freedom of speech. I note that communication involves two parties—not merely those who express themselves, the originators, but the recipients. This shift has been a feature of 20th-century discussions. When we shifted human rights documents to focus on freedom of expression rather than free speech, perhaps we did not notice that this marginalises the position of recipients and privileges originators. In short, there is a difference between expression and communication. Freedom of expression is not enough for a democratic culture in which free communication is respected and required.
As we well know, new communications technologies have often fundamentally disrupted communication. We can think all the way back to what Plato tells us of Socrates writing about writing, to realise how old this is. Similar things happened with the advent of printing and then, of course, of broadcasting. The remedies were often extremely slow, which is a salutary lesson for us in contemplating the recommendations of this report. How fast could it be done? How much of a change would it achieve?
This time, as I mentioned, we have new technologies that privilege the originators and expand their freedom of expression—at least in theory. That is no bad thing, but it might leave the recipients in a problematic position, receiving content from they know not where or whom. That is where the problem begins: we do not who the originators of this communication are. Very often, this is a source of difficulty.
Unsurprisingly, some norms and standards that have mattered greatly for communication will be ignored if we are thinking mainly about freedom of expression. Norms that can be ignored might include—this is just a smattering; there are many others—honesty, accuracy, civility, reliability and respect for evidence. I could go on. Noble Lords will note that they are not only ethical but epistemic norms. These are the bedrock of good communication.
It is an honour to follow such a respected philosopher as the noble Baroness. Indeed, it was a privilege to join the committee under my noble friend Lord Gilbert’s excellent chairmanship, but that was not until after the inquiry was completed, so I cannot claim any input into this excellent report.
In January this year, I took on the daunting challenge of succeeding my noble friend as chair and maintaining the committee’s reputation for undertaking inquiries of relevance and impact. Clearly, I endorse the conclusions and recommendations of the committee’s report. I believe in freedom of speech—online or in the real world—and welcome the Government’s decision to look again at the most contentious element of the Online Safety Bill—which my noble friend has already referred to—which threatens to undermine that. But, like everyone else, I also care deeply about the protection of children from harm, and my concerns have only been reinforced by the recent inquest into the tragic death of Molly Russell.
Doing nothing when it comes to regulating the internet is not an option I would consider acceptable. The Communications and Digital Committee will reconsider the Online Safety Bill once the Government have announced how they plan to change it before it reaches your Lordships’ House. I am not going to comment further on the freedom of speech aspects of the committee’s report today. Instead, I want to emphasise the importance of the other half of the regulatory equation to which the Government, frustratingly, have not so far attached equal priority, even though, as my noble friend has said, it is just as important if we are to have a safe as well as economically healthy online world: legislating to tackle the dominance and overwhelming power of the big tech firms by allowing much-needed competition to them.
Chapter 4 of the committee’s report sets out most powerfully the case and urgent need for the Digital Markets Unit, which is part of the Competition and Markets Authority, to be put on a statutory footing and given ex-ante powers to intervene more effectively in these markets. My noble friend already referred to one of the key conclusions in chapter 4, which is about these platforms not being allowed to monopolise the digital public square. The report also recommends that the DMU should, where necessary,
My Lords, I am grateful for the opportunity to speak in this debate, and to pay my thanks to the outgoing chair and, indeed, my obeisance to the incoming chair, as I seek to behave appropriately as a member of the committee.
My first point is an observation on how long it takes for a committee report to get its day in the Chamber. It is two years since we did this work. I think of our work on the future funding of the BBC, the future of Channel 4, the position of regulators and now our report on the creative industries and wonder just how old I will be by the time we get to the end of that list.
So it is good to have the report here. In a sense, rereading it with the advantage of two years’ space makes me aware of just how good a report it is. It makes as good reading now as it did then. The noble Baroness, Lady O’Neill, subtly made a point that I will take home and think about. Yes, we had the age-old debate about the need to wed ourselves to the idea of freedom of expression as a human right, but we also had impeccable debates about the misuse of people’s data.
They were two debates that were truly impeccable, each adumbrating a principle which we should stand by with every fibre of our being. It seems to me that, since one seems like an unstoppable force and the other an immovable object, it would need the wisdom of Solomon to decide in particular instances how to favour the rights of those who feel their privacy has been invaded over the advocates—of whom I am one—of freedom of speech. But originators and recipients will go home with me, and I shall think seriously about it.
The digital equivalent of the public square is how social media platforms have been described, and indeed they are, yet the irony is that they are controlled by private companies. Out of that paradox come all the difficulties that we are wrestling with as we seek to get legislation that deals with this complicated world.
Before we go any further, perhaps I may remind noble Lords that there is a speaking limit and that this is a time-limited debate, so we will be squeezing Minister’s summing-up at the end. With the exception of the noble Lord, Lord McNally, everybody has gone over today.
My Lords, I shall seek not to go over. I congratulate the noble Lord, Lord Gilbert, and the committee on the report. It is very timely to debate it today—the day on which the EU’s Digital Services Act comes into law, and as we ourselves eagerly anticipate the Online Safety Bill. I want to make a short contribution on the basis of having spent a decade inside one of the platforms, making decisions about how to manage content.
We are here with the Online Safety Bill and the Digital Services Act because we, the politicians, do not trust private companies to make decisions about their platforms. The noble Lord, Lord Gilbert, outlined some of the reasons why that trust has evaporated. The position now is that we are taking power to ourselves to tell platforms how to manage content, as a condition of operating in the UK market, and we will delegate the day-to-day enforcement of those rules to our chosen regulator, Ofcom.
An important question that arises from this, which the report rightly focuses on, is whether we should instruct Ofcom to consider only illegal speech or to bring in a wide range of other types of harmful speech. Because of the concerns about whether the regulator should enforce against only legal speech, there is now an interest in whether the definitions of “legal” and “harmful” could be more closely aligned. Today, I want to make a necessarily condensed argument for why this would be a mistake, both as a matter of principle and as a practical matter.
Turning first to the principle, we often hear calls to align online and offline standards. In our real-world interactions, we do not rely solely on the law to manage speech behaviour; this is to build on some of the arguments made by the noble Baroness, Lady O’Neill. To take an example, I could cover myself in swastikas and hand out copies of Mein Kampf entirely legally in the United Kingdom. There is no law that prohibits me. Yet were I to try to do that in most public spaces, such as by going to a football ground, I would be stopped on the basis that the speech norms prohibit my doing that, rather than because I had broken the law. We have a gap between what is unacceptable speech and what is illegal speech. This is not a bug but a feature of our speech norms in the United Kingdom.
My Lords, I declare an interest as a freelance TV producer. I had the honour of serving on the Communications Committee when this report was published. I too thank the noble Lord, Lord Gilbert, for his very able chairing of this inquiry.
The noble Lord, Lord Gilbert, suggested that the Government should amend the Online Safety Bill clauses on content that is legal but harmful to adults. I agree with the fears that these clauses will have an extremely deleterious effect on free speech. It is not just that the definition for this material is so vague, but that the Bill gives such dangerous powers to the Secretary of State to specify what is harmful by regulations. I support the recommendation in this report, which were then taken further by the Joint Committee on the Bill, to set up a parliamentary committee that will have the power to interrogate these changes further. I understand that the last Government were minded to drop these clauses. I would be grateful if the Minister would share with your Lordships’ House the new Government’s thinking on this issue.
I want to concentrate my speech on the later recommendations in the report. Recommendations 33 and 34 call for the Digital Markets Unit to be given statutory powers. It has been established for over a year and a half but still has not been given these. This could not be a more urgent issue. The big tech companies are still shockingly dominant. Your Lordships have heard this week of the falls in their share prices, but they still have enormous power in the markets.
In the tech ad market, this power is supreme. The CMA’s report into online platforms and digital marketing space found that Google and Facebook, as it was then called, make up 80% of digital advertising spend. It declared that the market is “no longer … contestable”. Such dominance is an obvious threat to innovative start-ups. Even if they manage to get a share of the advertising revenue, they face the ever-present threat of being bought up before they have grown to scale by the big players, whose dominance is therefore enhanced.
My Lords, I thank the committee for this report. Even though I do not agree with many of its recommendations, it was a real treat to read—like a great primer or literature review. There is so much of the Online Safety Bill to worry about in terms of free speech that it is hard to know where to focus, so I will just make a few points.
I was especially grateful to see a refreshingly nuanced approach in the report to misinformation, which I focused on the last time we discussed these issues. As research from Ofcom notes, many believe that the term “misinformation” is being
“weaponised for censorship of valid alternative perspectives.”
The report’s examples from the lockdown and Covid era are pertinent: for example, expert medical opinion—albeit a minority—that challenged either the Government or the World Health Organization were labelled misinformation, deemed so by big tech fact-checkers with no scientific qualifications but
“certified by the International Fact-Checking Network”—
whatever that is. It is all the more important to note, as the report does, that even Will Moy, the CEO of Full Fact, has said:
“There is a moral panic about ‘fake news’”,
leading to “frightening overreactions” by Governments and big tech.
I was also glad that the report noted the broader context of what I think is in danger of being a potential moral panic about online safety. Concerns from free-speechers are based on the offline problems of cancel culture and the ever-growing attacks on, for example, academic freedom in universities—such that the Government are attempting to legislate to enhance free expression on campus at the same time as undermining free expression online.
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At the core of these twin problems of aggressive promotion of harmful content on the one hand and overremoval of posts on the other is the dominance of the big platforms. Their monopoly of power means that they do not have to respond to users’ concerns about safety or free speech. These companies have monopolised the digital public square, shutting out new entrants that might be able to provide better services.
Tough competition regulation would unleash the power of the market to raise standards. It is a central part of the approach that we recommend in our report and we concluded that it was urgent. The delay in bringing forward legislation on the Digital Markets Unit is disappointing. I hope the Minister will agree that swiftly fixing broken markets to increase competition is the right and indeed Conservative thing to do.
There are two other pillars to the holistic approach we recommend which have not received enough attention. One is digital citizenship initiatives. Schools and public information campaigns both have a role to play in improving online behaviour. One person’s abuse of their right to freedom of expression can have a chilling effect on others, leaving them less able to express themselves freely. There is now much evidence that women and girls most often are being silenced by others online. However, regulation is not the only answer here. Alongside really joined-up, consistent citizen initiatives, an improvement in our public discourse would be a good start. Lord Williams of Oystermouth told us that “abrasive and confrontational styles” of discussion
“do not come from nowhere.”
Indeed. Politicians and other public figures should be setting a better example, showing that we can disagree while respecting those we are arguing with and not condemning as extremists those who have different viewpoints from our own.
The other pillar is regulation of the design of the biggest platforms. Freedom of expression is the right to speak out, but there is no corresponding obligation on others to listen. We called for users to be empowered with tools to filter the type of content they are shown. Everyone has their own individual sensitivities and preferences and only they, if they are an adult, can really decide what they want to see. I am glad that the Government have gone some way in implementing this with new clauses in the Online Safety Bill, which I will come to a moment.
It is not the existence of individual pieces of content which in some circumstances and to some people can be harmful that is the problem, but the way in which algorithms serve up that content in unrelenting barrages. The devastating impact of these business models was laid bare in the astonishing evidence at the inquest into the death of Molly Russell, which we would never have seen were it not for the persistence and courage of her father, Ian Russell. The horrendous material that was targeted, promoted and recommended to Molly changed her perception of herself and her options. Seeing the systemic nature of her abuse in the coroners’ court will help us to take action to save lives, and I hope that Ian and his family find some comfort in that.
Design regulation means ensuring that the largest platforms’ content-creation algorithms, choice architecture and reward mechanisms are not set up to encourage users’ worst instincts and to spread the most unpleasant content the most quickly. Such measures would get to the heart of those business models, which centre on keeping users logged in and viewing adverts for as long as possible—even if that means stoking outrage.
We should be taking different approaches to protect children and adults. For adults, we want a space where they do not find manifestly illegal material but can control their own online environment by insisting that platforms put power in their hands, as I have described, which means an approach that allows adults to in effect create their own algorithms through approaches such as interoperability.
When it comes to children, we want to protect them from content that is not appropriate for their age, but surely we want more than that. We should be aspiring to an online environment that is positive and enriching, and which helps them to grow and learn safely: a space where their privacy is respected and where every stage of the design process puts these objectives ahead of the financial interests of the platform.
It is obvious, then, that platforms and other online services need to know the age of their users. The way in which they do this and the degree of certainty they would need will depend on the risk of children using the service and the risk of children encountering harmful material or design features if they do. That is why, while I will passionately champion free speech when we come to the Online Safety Bill, I will also support the call led by the noble Baroness, Lady Kidron, for a set of standards for age-assurance technology and approaches that preserve privacy. Well-designed and proportionately regulated age assurance is the friend, not the enemy, of free speech.
I have outlined the approach favoured by the committee in its report, and now I turn to the Bill’s approach. We have been told repeatedly by officials and Ministers that the Online Safety Bill is simply about platforms, systems and processes, rather than content. This is incorrect. These are systems and processes to remove content. Their compliance with the legislation will be judged according to the presence of content, even if a single piece of content would not be enough for a platform to be deemed non-complaint.
The “legal but harmful” duty has been the subject of so much debate. Its supporters are right that it is not straightforwardly a duty to remove content; it is about platforms choosing a policy on a given type of legal but harmful content and applying it consistently. However, this is not nearly as simple or as innocuous as it sounds. The vagueness of the concept of harm gives Ofcom significant definitional power. For example, a statutory instrument might designate information which has an adverse physical or psychological impact as a priority category which platforms must include in their terms and conditions. A platform that said that it would not allow such information could be penalised by Ofcom for not removing content which the regulator feels meets this standard but which the platform does not, because the platform either does not believe it is untrue or does not believe it is harmful.
When we asked why it would not be simpler to criminalise given harms, part of the response was that many of those legal harms are so vague as to be impossible to define in law. It is not clear why that would not also make them impossible to regulate. As a committee, we have always felt it a crucial point of principle to focus on the evidence in front of us, and when we did, on this issue, a consensus quickly emerged that the “legal but harmful” provisions are unworkable and would present a serious threat to freedom of expression. They should be removed from the Bill.
We also raised concern about the duty to remove illegal content as currently drafted. The problems with this duty have not received nearly as much attention as the “legal but harmful” duty, but might, I fear, be significantly more dangerous. Unlike with “legal but harmful”, this is straightforwardly a duty to remove content. Of course no one wants illegal content online. If it really is illegal, it should be removed, but we are asking platforms to make decisions which would otherwise be left to the courts. Prosecuting authorities have the time and resource to investigate and examine cases in great detail, understanding the intent, context and effect of posts. Platforms do not. Neither platforms’ content moderation algorithms nor their human moderators are remotely qualified to judge the legality of speech in ambiguous cases.
The new communications offences in Part 10 of the Bill, which have their merit, show the problem most clearly. A platform will have to remove posts which it has reasonable grounds to believe are intended and likely to cause serious distress to a likely audience, having considered whether there might be a reasonable public interest defence. Even courts would struggle with this.
If we oblige platforms to remove posts that they have “reasonable grounds to believe” might be illegal, there is a real danger, surely, that they will simply remove swathes of content to be on the safe side, taking it down if there is the slightest chance it may be prohibited. There is no incentive for them to consider freedom of expression, other than some duties to “have regard for” its importance, which are currently much too weak. Legitimate speech will become collateral damage.
I do not pretend that we have all the answers to these concerns of how to ensure proportionality and accuracy in removing potentially illegal content, but I know that this is something the Government have been looking at. Can my noble friend tell us whether the Government acknowledge the concern about overremoval of legal content and whether consideration has been given to solutions which could include a clear and specific duty on Ofcom to have regard for freedom of expression in designing codes and guidance and using enforcement powers, or more fundamentally, a change in the standard from “reasonable grounds to believe” to “manifestly illegal”?
The committee in its report found drafting of the Bill to be vague in parts, perhaps because it is born of a desire to find some way of getting rid of all the bad things on the internet while avoiding unintended consequences. As Susie Alegre, a leading human rights lawyer at Doughty Street Chambers put it, the Bill is so unclear that
“it is impossible to assess what it will mean in practice, its proportionality in relation to interference with human rights, or the potential role of the Online Safety Bill in the prevention of online harms.”
Ofcom will be left to try to make sense of and implement it. Ofcom is rightly a very well-respected regulator, but it is wrong to hand any regulator such sweeping powers over something so fundamental as what citizens are allowed to say online. There is no analogy in the offline world.
Think of how contested BBC impartiality is. Imagine how much more furiously the debate about Ofcom impartiality will be when both sides of a highly contested debate claim that platforms are wrongly taking their posts down and leaving their opponents’ posts up, demanding Ofcom take action to tackle what they see as harm.
The only winners from all this will be the likes of Facebook and Google. Having left their business models fundamentally unscathed, the Online Safety Bill will create obligations which only they can afford to deal with. New entrants to the market will be crushed under the compliance burden.
Before I conclude, on enforcement, it is sometimes said that the internet is a Wild West. It is not. We are right to put in place regulatory regimes across the digital landscape and, for all its flaws, this Bill is an important step. However, the report identified 12 existing criminal offences and a number of civil law protections that are already in place, and which are especially relevant to the online world. These offences already cover many of the behaviours online that we most worry about. The problem is not a lack of laws but a failure to enforce existing legislation. We called on the Government to ensure that existing laws are enforced and to explore mechanisms for platforms to fund this, and to require platforms to preserve deleted posts for a fixed period.
It will soon be time for this House to turn its attention to detailed scrutiny of the Online Safety Bill. I hope that noble Lords will find the committee’s report and today’s debate a useful preparation. I firmly believe that the approach that we suggest would make the internet safer and freer than would the current proposal. I would like to see an Online Safety Bill that focuses on platform design and content which is manifestly illegal, and which goes much further to protect children. It must also contain strong incentives for platforms not to take down legal content, including a prohibition on removing content from legitimate news publishers.
Parliament must provide ongoing scrutiny on the online safety regime, competition, and all areas of digital regulation, to help regulators do their jobs effectively and show that their powers are never again so completely overtaken by changes in the digital world.
I look forward to hearing from my noble friend the Minister, and warmly congratulate him on his appointment. I am sure that he will approach this debate and the online safety Bill with characteristic depth of thought. I beg to move.
Secondly, digital citizenship should be a central part of the government media literacy strategy and be properly funded. I served on the Puttnam committee, which gave pre-legislative scrutiny to the 2003 Communications Act. We recommended that Ofcom give priority to digital literacy as a way of equipping the citizen and democratic structures for the new digital age. I am afraid that this is still work in progress, and I support the report’s recommendation that Ofcom assist in co-ordinating digital citizenship education between civil society organisations and industry.
Thirdly, the Government’s response contains lots of good intentions and box-ticking, but big tech will be judged, rather like the big energy companies on climate change, not by its ability to tick boxes or do its equivalent of greenwashing, but by what it actually does to address these very real problems. That is why I strongly support the report’s recommendation that a Joint Committee of both Houses be established to consider the ongoing regulation of the digital environment.
My old mentor, Jim Callaghan, was fond of saying, “A lie can be halfway round the world before truth has got its boots on”. This is truer than ever today, and liberal democracies must equip themselves and their citizens to protect their institutions and values from a real and present danger. This report and debate are an important contribution to us getting right how we protect our freedom and values in the years ahead.
So, stressing the rights of originators too much is likely to land us with some difficulty. Digital communication empowers originators, and this can be at the expense of recipients. Let us remember that some of the originators are not you, me and our fellow citizens seeking to express ourselves, but tech companies, data brokers and other actors in the digital space who relish the thought that they have freedom of expression, because it enables them to do things they perhaps ought not to do.
It follows that remedying the situation will be multiply difficult and probably slow, but the one thing it must not be is a set of remedies that protect originators at the expense of recipients. Remedies must concentrate on removing the cloak of anonymity that currently protects so many originators and ensuring that what they do can be seen to be something they did. That means removing anonymity from the tech companies, the data brokers and indeed the many other sources that are polluting communication at present.
I suppose that this empowers some originators, but I doubt whether concentrating on those will get us there. The important thing is to regulate data brokers, tech companies, Governments and cartels: those who pollute the online space.
“block mergers and acquisitions which would undermine competition.”
Earlier this year, determined to continue the good work started by my noble friend, the committee held accountability sessions with the Government and the CMA to maintain the pressure for action, including calling on the CMA to use its existing powers to their very limit while waiting for these long-promised and much-needed new powers. Since then, and to its credit, the CMA has been doing that, as evidenced by its recent ruling against Meta’s acquisition of Giphy—the GIFs that are used in tweets and different forms of social messaging. Noble Lords and others might shrug their shoulders and wonder, “So what? What’s the benefit of that?” Well, let me explain.
Had this acquisition been allowed to continue, Meta would have been able to increase its market power by denying or limiting other social media platforms’ access to these GIFs, thereby pushing people to Facebook, Instagram and WhatsApp, which already make up 73% of user time spent on social media in the UK—or it would have been able to change the terms of access to Giphy GIFs, requiring Twitter, TikTok and Snapchat to provide Meta with more data from UK users in return for their access. Disentangling Giphy from Meta will now be a slow and costly operation and a lot of the anti-competition damage will already have been done, but if the DMU had had ex-ante powers it would have been able to prevent the acquisition, or at least the integration, of the business until it had carried out its work.
The internet and the big tech firms have revolutionised our world, and they deserve huge credit for their innovation and the risks they have taken to make a success of their businesses and create opportunities for so many others. But we cannot ignore the damage they cause socially and economically because of the control and power they hold. This threat will only grow if there are no limits to their dominance and everyone else is forced to rely on them, whether as individuals, businesses or even nation states.
It cannot be right that a handful of powerful individuals or corporate entities with no democratic mandate can influence and shape our society and affect our social norms. We need to ensure that the Online Safety Bill does not inadvertently exacerbate that threat, and we need to accept that we will need to keep evolving regulation in this area. But the Government also need to recognise that, on their own, online safety legislation is not enough, and they must bring forward with equal if not more urgency the digital competition Bill. When my noble friend comes to wind up, could he explain why the Government have, so far, failed to recognise this? Could he also tell us what plans the Government have to bring forward this necessary legislation as soon as possible?
The protection of children has been adequately mentioned, and so it should be. I heard the Minister at Question Time yesterday talk again and again about the fact that looking after the interests of children is the predominant feature of the Government’s mind as they take legislation forward in this area. So I hope that the 5Rights work done by the noble Baroness, Lady Kidron, will be incorporated in that thinking and play a major part. Age verification is what she is very concerned about. I believe that her foundation has made significant progress towards getting something that we could work with, and I hope she has assurance on that point.
Early in this report, we were pointing the way forward, presciently I think, towards the Online Safety Bill that will soon be before us—or will it be soon? It has been put off so many times. I have no idea when it will finally be taken on the Floor of the House of Commons. Looking towards such a Bill, we emphasise the need for three aspects of consideration that we should take very seriously: the design of legislation, the nature of competition and the need for improved education in what the phenomenon of the internet and its applications means, not just in terms of helping children and adults to press the right buttons and to activate the machinery to do their will, but to understand outcomes and the essential nature of what anonymous contributions to conversations—or are they conversations if the contributors are anonymous?—can lead to. Well, I am very glad that this is before us.
I walk quite regularly under the statue of George Orwell at the BBC. I have almost memorised and thought a lot about the inscription from Animal Farm that is written on the wall behind the statue:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
That is fair enough. I have stood at Speakers’ Corner in Hyde Park many a time and have had a fair few things hurled at me. However, I want to add as a corollary, “If liberty means anything at all, it means the right of people to tell me what I don’t want to hear”. I think that that might be a complementary way of looking at a very important principle.
It would be a mistake to try to make all unacceptable speech illegal or, equally, to deem all legal speech acceptable and try to force platforms to carry it. We are left with a sustained situation where there will be a gap between what we as a population believe is acceptable and what the law outlines, and that is right. We want to keep the legal prohibitions—the criminalisation of speech—as minimal as possible.
Turning to the practical considerations, which the noble Lord, Lord Gilbert, again talked about, it is sometimes assumed that there is a bright line between legal and illegal content. My experience over many years is that there is no such bright line but many shades of grey. Again, to illustrate this with a specific example, many people would post on social media pictures of Abdullah Öcalan, the leader of the PKK, a proscribed terrorist organisation in the UK. Now, when someone posts that picture, are they supporting the peace process he is engaged in in Turkey? Are they supporting him as a terrorist? Are they supporting his socialist ideals or the YPG in Syria, which also looks to Abdullah Öcalan? There is no way to understand the purpose and intent from that photo, so you have to make a judgment. At one end of the spectrum, you could say, “Look, I am so worried about terrorist content that I am going to take down every picture of Abdullah Öcalan”, knowing that you will be taking down many forms of legal expression. At the other end, you could say, “I will leave them all up, and if I do so I know that I will be permitting some expressions of support for terrorism, or some illegality to take place.” There are of course many points in between.
We have an opportunity now to shift where those judgments are made in the new structure outlined in the Online Safety Bill. Platforms will have to respond to guidance and codes of conduct precisely on these issues of how they make judgment and we, as Parliament, will have a role in setting that guidance and those codes and of conduct, as Ofcom will bring them to us. We are moving into a world where decisions will not necessarily get any easier but will no longer be the sole preserve of the platforms. It is a benefit for public accountability that there will be an official government or parliamentary view expressed through Ofcom’s codes of conduct. Equally, we as Parliament—or the British establishment—will be responsible in future for the decisions made around content moderation. I fear that I may have jumped out of the platform frying pan into the regulatory fire by engaging from this side of the argument, but the Online Safety Bill will be a significant improvement.
The problem is that the CMA’s monopoly rules concentrate on consumer price benefit. Obviously, when so many of the services offered by the platforms are free, that does not apply. Instead, different metrics must be introduced which take into account how the platforms use data, consumers’ privacy and freedom of expression.
The Government’s response to the committee’s recommendation is to acknowledge that competition is central to unlocking the full potential of the digital economy. They promise to deliver reforms that will bring more vibrant markets, innovation and increase productivity. Who in this House does not agree with that?
I echo the noble Baroness, Lady Stowell, who asked why the Government have been so slow to enact these pledges. The Queen’s Speech dangled before your Lordships the hope of a draft digital markets and competition Bill, which promised to give the DMU statutory powers so that it can tackle tech companies’ abuse of their dominant positions. As the Government delay on this matter, regular businesses and consumers are losing out. The CMA suggests that they are losing £2.4 billion annually from the overpricing of the big platforms on ad sales alone.
Instead, the Government have used valuable legislative time to bring forward a media Bill which, although containing useful elements, promises to privatise Channel 4, which is driven by blind ideology rather than any business case. Can the Minister give the House an indication of when the digital markets Bill will come before it? I hope he will give us an assurance that goes beyond “when parliamentary time allows”.
I should also like to draw your Lordships’ attention to recommendation 42 of the report, which calls for a mandatory bargaining code to be set up to ensure fair negotiations between platforms and news publishers. Since 2010, over 265 regional newspapers in the UK have closed. Those that remain have seen their circulations collapse and this lost revenue is not being replaced by digital subscriptions. The industry faces an existential threat.
The big hope is that it can be resurrected digitally, as 38% of visits to news publishers’ websites came from links on Google or Facebook. However, at the moment the platforms get the content free or at very little cost, even though news content is one of the biggest drivers of traffic. The tech companies have made contracts with some newspaper publishers to pay for their content, but many say that the power imbalance is so great in the platforms’ favour that they are not being paid the true cost for using the content.
A bargaining code has already been introduced in Australia. It is not perfect because it is not sufficiently inclusive of regional players, and some people are worried about a mandatory contract for news content being imposed on the platforms. However, Rod Sims, the ex-head of Australia’s competition commission, told me that this has not happened and he had not been forced to use his powers. The threat of the imposition of a contract has changed the dynamic in the market enough to bring the platforms to agree an equitable price with news publishers for use of their content.
The report needs to see more of its recommendations taken up by the Government. There is still important work to be done if this country is to become a digital world leader. I urge the Minister to do all he can to ensure that there is legislation which allows freedom of expression and for a competitive digital market to allow a plurality of platforms in which those voices can be heard.
I will add another offline context: there is a contemporary therapeutic ethos that posits safety—especially psychological safety—as trumping freedoms of any sort. I hope that the committee will look at this at some stage. We cannot discuss online harms without understanding that the concept of harm is an ever-expanding category.
Before I look at that, I will make one clarification: whenever I raise problems with the Bill, the justifications that come back at me always centre on children’s safety. I note that I would be happy if the Online Safety Bill confined its focus on the young and children. Instead, the Government use adult worries about children’s access to porn, self-harm and suicides—all right worries—to introduce huge legislative changes that will affect adult freedoms, effectively infantilising citizens and treating us as dependent children in need of protection from each other’s speech.
The report tells us:
“Civilised societies have legal safeguards to protect those who may be vulnerable.”
The problem is when vulnerability gets discussed in relation to adults. In a therapeutic culture, vulnerability and victimhood are valorised and often incentivised because, if we present ourselves as fragile and vulnerable, we have a cultural currency and power not only to gain attention and support but to silence others. For example, the report is extremely helpful in deconstructing the whole concept of harm: the committee rightly rails against the illiberal notion of censoring “legal but harmful” material, and hopefully the Government will indeed drop that egregious clause. The whole premise of the Bill is based on the idea that speech online can be, and often is, harmful. The elastic use of the term “harm” makes it ill-defined and subjective, fudging physical harm with psychological harm—and it is no wonder that many now see words as violence.
The committee helpfully asked the Government whether the
“Bill’s definition of psychological impact has any clinical basis”.
The reply came back saying, “No”; it would be up to “platforms … to make judgements” about speech causing anxiety or fear. This is potentially disastrous, as terms such as “offensive”, “hate”, and “misinformation”—with all their subjectivity—can be said by individuals to mean that something should be banned.
The report notes that, a few years ago,
“the Christian Union at Balliol College … was banned from its freshers’ fair”,
on the basis that
“its presence could ‘harm”’ some attendees.”
Goodness knows what they would make of the harm of having Bishops in this place. Only this week, Cambridge University faculty heads apologised to students for “distressing” them by sending an email promotion for a “potentially harmful” talk. What caused such alarm? A talk by Sex Matters’ Helen Joyce entitled, “Criticising gender-identity ideology: what happens when speech is silenced”—oh the irony. Actually, much speech is silenced, online and offline, by deploying the language of psychology to suggest that speech, books and ideas are dangerous. Trigger warnings are put on lectures and literature to prevent post-traumatic stress disorder. PTSD is now not clinically diagnosed post war or after a disaster, but by the potential harms caused by upsetting speech or words. So even if “harm” in the Bill is medically diagnosed, it will not help because psychological language is now frequently used to silence us.