My Lords, I repeated a Statement in the House on the online harmsWhite Paper on the day that we published it, 8 April. There was not enough time for all noble Lords who wanted to contribute to do so, and so the Chief Whip kindly made me available for noble Lords to make their points at greater length and with the benefit of more time to think about this difficult problem. I am grateful for the opportunity to listen to noble Lords’ views.
This White Paper is an important document and a world first. For many people nowadays, the internet is an integral part of daily life. However, illegal and unacceptable content and activity remain far too prevalent online. There is currently a range of voluntary initiatives that try to address some of these problems, but while there has been some progress, the efficacy and pace of these actions have varied widely across different companies. These inconsistencies still leave too many users unsafe online, and the current regulatory landscape lacks the scope and coherence to tackle this complex set of problems. That is why we have published this White Paper, which sets out an ambitious and coherent framework for tackling harmful content and activity. This will make companies more responsible for their users’ safety online, especially that of children and other vulnerable groups, and will help build trust in digital markets. The online harms we are tackling include behaviour that threatens users, particularly children and the vulnerable, and behaviour that undermines our national security or aims to fracture the bonds of our community and our democracy.
To tackle these harms, we intend to establish in law a new duty of care on companies towards their users, overseen by an independent regulator. This regulator will set clear safety standards, backed up by mandatory reporting requirements and effective enforcement powers. Companies will be held to account for tackling a comprehensive set of online harms ranging from illegal activity and content to behaviours that might not be illegal but are none the less highly damaging to individuals and society. They will be required to take particularly robust action to tackle terrorist content and online child sexual exploitation and abuse.
We recognise that a very wide range of businesses, such as retailers, consumer brands and service providers of all kinds, currently enable some degree of user interaction or user-generated content online. Although we will minimise excessive burdens according to the size and resources of organisations, all companies will be required to take reasonable and proportionate action to tackle harms on their services.
The regulator will have sufficient enforcement powers to take effective action against companies that breach regulatory requirements and to uphold public confidence, while also being fair and proportionate. These will include the power to levy substantial fines, and we are consulting on even more stringent sanctions.
My Lords, I am very happy to contribute to the positive way in which the Minister has presented the case. I am delighted that, as promised by the Government, time has been made for adequate consideration of the issues in this debate. However, I am disappointed that more people are not here. There was such a swell of enthusiasm when this matter came before us the first time that I thought we would have a much better-peopled debate and a longer list of speakers. However, we are here and the ideas are waiting to be explored.
I am happy that this debate is taking place during the period of consultation and I hope that the record of this debate will contribute to the documentation being considered. It will make it 1,001 contributions thus far.
Bold claims have been made for what is hoped to be the result of this process. By the way, it is good to start with a White Paper and with regular rounds of conversations. The bold claims include the Government saying that they are going to create the safest place to be online and that this will be a world first, with no one having done it before. They also say that it could be part of a global response to perceived needs in this area. I feel that we are making something available for our country by way of regulation in respect of a global industry that is very difficult to contain within any framework that I can imagine. We will be hearing from various speakers about regulation, so I shall not deal with that now. The duty of care has already been mentioned. I wish that the digital charter had crept somewhere into the narrative because there are lots of ethical issues that would make it very appropriate to consider it.
There is much else in the White Paper but I want to focus on the list of harms on page 31. I shall not go through them all but I note the three columns headed “Harms with a clear definition”, “Harms with a less clear definition” and “Underage exposure to legal content”. There is a list beneath each heading. I want to compare those lists with the ones that appear in another DCMS document. I was reading it not for this debate, to be quite honest, but for the debate last week on advertising and the internet. It came out of the same stable as the White Paper. I am calling it the Plum report because that is what is on the front cover. It is called Online Advertising in the UK. It was commissioned by the Department for Digital, Culture, Media and Sport, and it was published in January 2019, when drafts of the White Paper must have been in DCMS. As I said, it is from the same stable. On pages 17 to 19 of this report there are three lists of potential harms to be found online. They have different names from those in the White Paper: individual harms, societal harms and economic harms. This document was produced with the debate on the Communications Committee’s report on advertising and the internet in mind, and to feed into the Cairncross report on local journalism. But the two lists—in the White Paper and the Plum report—must be looked at together. They are rather unlike each other and point to things that we dare not ignore.
My Lords, it is always a pleasure to follow the noble Lord, Lord Griffiths of Burry Port, and I certainly want to follow the spirit of his intervention. Last Thursday, we had something of a dress rehearsal for this debate when we discussed the Communications Committee report UK Advertising in aDigital Age.
In the course of that debate the right reverend Prelate the Bishop of Durham quoted his son saying:
“Dad, you haven’t a clue … I have been raised in this digital world. I am inside it, day in and day out. You just don’t get it and your generation will struggle to”.—[Official Report, 25/4/19; col. 725.]
I was particularly sensitive to those comments because I suspect that my own children, all in their 20s, have a similar view of my capabilities. I am happy that my noble friends Lady Grender, Lady Benjamin and Lord Storey, all more savvy in this area than I am, will follow.
The truth is that the gap in comprehension between legislators and practitioners was there for all to see when the CEO of Facebook, Mark Zuckerberg, appeared before a Senate committee. The question out there is whether the Government and Parliament—as the noble Lord, Lord Griffiths, has just indicated—are flexible and nimble enough to address genuine public concerns and stay ahead of the curve as some of these technologies develop at breakneck speed. Perhaps it is a job for the Youth Parliament rather than this one. As I said last Thursday, many of our procedures and conventions have their roots in the 18th century not the 21st. In approaching this, therefore, we have to look not only at the legislation but at how we consult and involve people in introducing steps as we go forward.
As the Minister has said, there has been a general welcome for the direction of travel proposed by the White Paper. There are harms which need to be addressed, as demonstrated by the list referred to by the noble Lord, Lord Griffiths, and as explained to us by the noble Baroness, Lady Blackwood, in the Statement that preceded this discussion.
My Lords, it is a pleasure to follow the noble Lord, Lord McNally. We once appeared on “Question Time” together, although it was the Reading University version, rather than the BBC one.
John Perry Barlow, the libertarian and Grateful Dead lyricist who died last year, wrote in 1996 that the internet was,
“creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity”.
To national Governments, those,
“weary giants of flesh and steel”,
he directed a famous warning in his Declaration of the Independence of Cyberspace:
“You are not welcome among us. You have no sovereignty where we gather”.
Those words still have the capacity to inspire, particularly in the start-up culture of Silicon Valley where First Amendment freedoms are sacred and trust in government is low. Having been lucky enough, as we all have, to live through the early stages of the communications revolution that is in the process of transforming our world, and having benefited incalculably from the connections it has brought me to people and sources of knowledge that I would never otherwise have encountered, I would go so far as to say, as Wordsworth controversially said of another revolution:
“Bliss was it in that dawn to be alive”.
But as this White Paper repeatedly demonstrates, the scale and intensity with which communication is now possible have brought in their wake the potential for new and serious harms, harms for which counter-speech and alternative narratives are a necessary but insufficient answer. Even the imperative of free speech, central though it is, cuts both ways. Bullies, stalkers and foul-mouthed abusers inhibit the online freedoms of others, in much the same way as anti-social behaviour in the real world drives the most vulnerable from the public square. The risk that free speech will be chilled by overregulation is real and acute. However, underregulation too can inhibit freedom of speech, in particular, the freedom of the women and minority groups who, in Parliament—and, I suspect, elsewhere—attract a disproportionate amount of online abuse. It was saddening, even shocking, to read in the White Paper that 67% of women in the UK experience a feeling of apprehension when thinking about using the internet or social media.
My Lords, this is a vast subject, and I will limit my comments to just a few areas.
I and others on these Benches welcome this White Paper, in particular the attempt to rethink the way we see this whole area. In the past we brought in individual laws to deal with particular problems. My colleague the right reverend Prelate the Bishop of Chelmsford has been arguing for some while that we need to see this as public space. We need to try to understand how we can regulate it from first principles in a way that guarantees the freedoms we want and the huge benefits that have come through the online world, which has made a huge and incalculable difference to our lives, but also protects the many people who are vulnerable. We have heard some account of just some of the problems some people have faced.
If the Government are to achieve the aim of making this country the safest place in the world to go online, we need to learn from other industries that are also seeking to be regulated. The whole question that I have been most closely associated with and have taken a particular interest in is regulating the gambling industry. It seems to me that there are a number of parallels that we need to take on board if we are to think about what might be the appropriate way of regulating.
It has been encouraging that the Gambling Commission has taken a stronger line on an industry that in the past performed abysmally in its duty of care to its customers. If companies such as Facebook, Snapchat or YouTube are to behave, the regulators will need to have significant powers and there will need to be real independence. Yet, if they look at some of the other regulators, why on earth are they going to fear? For example, just as the gambling industry’s gross gaming yield continues to grow far into the billions, Facebook’s revenue is now around £55 billion per annum. The substantial fines that we were being perennially promised in the battle to combat wrongful behaviour are very modest and really do not make the companies blink for one moment. Indeed, some cynics have been arguing that some of these companies simply budget in the fines as part of their ongoing business so that they can keep going as they have in the past. Similarly, the largest fine Facebook has received from a UK watchdog is around £500,000. These companies are in a totally different league. Therefore, there is a question about not only how we regulate them but how we get them to engage with the wider debate about the sort of world we want to create.
I have been listening very carefully and have followed the debate from the beginning. Would the right reverend Prelate accept that, given that there is a greater urgency about this matter than just dealing with the White Paper—although that is extremely welcome and constructive—and given that even as we speak, primary school children are accessing hardcore porn, sadly it is now time for rather draconian measures?
I thank the noble Lord for his question. It was precisely my point, about a regulator having very significant powers. My question about whether self-regulation will work touches on a number of areas. That was why I was saying that I do not think self-regulation will work. Although it is something that we need to encourage, it does not yet have a track record that we can have much confidence in.
If I may finish—the noble Lord caught me at the very end of what I wanted to say—that is why I do not think that a light-touch approach is going to be the answer. We need to work away at how to balance these various needs, both for the freedoms and for the protection of the vulnerable.
My Lords, I am very happy to follow the right reverend Prelate, and I agree with much of what he says. I do not quite agree with him on everything, but I will come to that in a moment.
Generally I welcome this White Paper. During my time as a Member of the European Parliament, I became what is loosely termed as an Internet Watch Foundation champion. I do not think I have ever been a champion of anything, but I was very happy to support the Internet Watch Foundation, which has done enormously good work for many years detecting and trying to deal with instances of abuse on the internet. In fact, quite a long time ago, in 2011, I was the European Parliament negotiator when it was decided that child pornography and material facilitating child abuse should be removed from the internet whenever possible, and blocked when removal was not possible. Of course, at that time, there were not really the levers or tools in place to help deal with these matters. The IWF continues to do good work, and I hope it continues to be part of what it has always regarded as a partnership approach, in the new regulatory framework.
I disagree a little with the right reverend Prelate, and, it seems, with some colleagues, on this question of self-regulation. We should also be aware that in hosting websites, there has been much greater success in this country than in others in removing content. That has, until now, inevitably been part of a self-regulatory approach. I welcome the setting up of a regulator, although my experience of other regulators is a little mixed. Regulators have to have clear powers and be able to enforce the regulations that they are responsible for. I certainly welcome the suggestion of codes of conduct for the industry—the service providers—but in preparing these it is vital that we have full consultation, as I know we are currently having on the White Paper, with industry and with relevant NGOs, including the Internet Watch Foundation and the law enforcement authorities.
6:32 pm
Lord Puttnam (Lab)
My Lords, I too am extremely grateful to the Chief Whip for allowing time for what is already proving to be a worthwhile and timely debate, and to the Minister for introducing it in such a positive manner. I entirely sympathise with the Government’s instinct to focus on the most obvious forms of online harm, such as child sexual exploitation and abuse, the promotion of terrorism and threats of actual violence. The Government’s proposals in these areas are, on balance, carefully thought through and proportionate. They represent a bold attempt to tackle some of the more damaging features of the digital age and are based on a duty of care—a principle I have long advocated in relation, for example, to what I believe to be the responsibilities of the media to ensure informed democratic debate. I hope it will not be self-promoting to mention that in 2012, I did a TED talk under the auspices of this House on this subject. It has to date been seen by almost 1 million people, so there is no doubt that there is interest in this area.
In the time available this evening, I would like to touch on other forms of harm which in my view are insufficiently addressed in the White Paper. The harms I refer to were identified by the noble Baroness, Lady O’Neill—sadly, she is not in her place—in response to the Statement on 8 April as being,
“harms to public goods, democracy, culture and the standards of the media”.
She made the point that the White Paper,
“deals with only part of the problem”.—[Official Report, 8/4/19; col. 433.]
As your Lordships have already heard from the noble Lord, Lord McNally, during her recent appearance before the DCMS Select Committee on this White Paper, Elizabeth Denham, the Information Commissioner, said—I will quote her a little more fully—that she was,
“surprised and disappointed that there was not more focus on a huge societal harm, which is electoral interference, and on the need for more transparency in political advertising”.
Like others, I entirely share the commissioner’s disappointment.
We are only too familiar with the pernicious and corrosive effects of online propaganda in the form of disinformation, which has already had a distorting effect on almost every area of our domestic and democratic lives. Much of that distorting effect has been caused by a worrying lack of understanding of how easily we can all be manipulated. Anyone doubting the impact of that manipulation has only to turn to the recent DCMS Select Committee report on Disinformation and Fake News. As that report accurately states:
20 of 45 shown
After the debate on the Statement, to which the Minister referred, I had a conversation on the Floor of the House with the noble Baroness, Lady Neville-Rolfe, who I am sorry to say is not in her place today. She was worried about the absence in the White Paper of any reference to economic harms. I do not believe she was thinking about the responsibilities of small and medium-sized businesses, which would be the same, proportionately, as those of other institutions and bodies; she was talking about online harms to these small and medium-sized businesses. These concerns have been picked up by other commentators too.
The list of economic harms in the Plum report includes:
“Product bundling and exclusivity … ‘Walled Gardens’”,
on which stakeholders express concern that it is hard,
“to export user ID data collected during advertising campaigns”.
The list also includes:
“Lack of transparency in programmatic display … Differential treatment”—
whereby some companies are given better treatment and so on—as well as “leveraging”, “engagement with industry initiatives”, in which market players “do not always adopt” industry standardisation, and “control of web browsers”. It is quite a list, and of a different kind from the one in the White Paper. I wanted to keep these lists together.
After that same debate, I had another conversation, this time with the noble Baroness, Lady O’Neill. It is always a frightening experience to talk to the noble Baroness; she is clever and I do not feel that I am. If I felt even a little clever, I would feel much less so after a conversation with her than I did when I began. She is a quite remarkable woman, whose recent publications are on the subject of trust. Her earlier work was on Immanuel Kant, whom I have barely ever understood; the right reverend Prelate will be better versed in him than I am. These books on trust, however, seem to be looking, as a philosopher should, at a very important subject. Anyway, in this conversation, the noble Baroness expressed her worries about the lack of reference in the White Paper to societal harms. She and I have been greatly impressed by—and shared our impressions of—the recent book Democracy Hacked by Martin Moore, which looks forensically at the damage done online to our democratic institutions.
On societal harms, the list revealed in the Plum report is again very revealing. It includes,
“financial support for publishers of offensive or harmful content”—
that is, providing means of monetisation for those creating harmful content on platforms—as well as discrimination, which can occur either by design or inadvertently when advertisers target data to categorise people by gender, ethnicity and race. The list also includes “non-transparent political advertising”, whereby anonymous actors may “influence elections and referendums”.
It is interesting that in tomorrow’s Oral Questions, the noble Baroness will ask a Question on this subject. I am sure she will want to quote the sympathy of the Information Commissioner, Elizabeth Denham, on this very matter. The contribution I want to make as the subject opens up today is to identify and, in some way, feel comfortable with, the range of online harms that we are referring to. They tend to be, as in the White Paper, to do with the plight of individuals. If that is the desired outcome, it ought to be said clearly that this is what we are dealing with. But online harm is a much more generic term and the economic and societal aspects deserve to be mentioned.
I conclude by saying that the Secretary of State has set himself a very difficult target. He wants a Bill that will put the UK’s house in order on a truly global matter of concern. How that will be done we wait to see. The proposals aim to get the right balance between the long-overdue regulation in this area and continuing adherence to the principles of free speech; the Minister has already given assurances on that. He is also looking to produce legislation that, while he gives it his best attention, will be overtaken by rapid development in the field of technology, even as we debate the Bill. We must look for a Bill that is light on its feet, flexible and can be put to work, rather than something static, heavy and fixed that will be out of date as soon as it becomes an Act of Parliament.
I look forward to hearing other views because, at this stage, this is a conversation. I look forward to shaping a document that, ultimately, will go beyond what we are comfortable with as a step in the right direction and needs to go much further.
It is true that the White Paper is not without its critics. Last week, in evidence to a DCMS sub-committee, the Information Commissioner, Elizabeth Denham, expressed surprise and disappointment that the White Paper had not,
“done a comprehensive examination of political advertising and oversight that’s needed in this space”,
and the Electoral Commission has called for a range of measures to strengthen its oversight and promote transparency in digital campaigning. The Alliance for Intellectual Property caught some of the points made by the Minister and the noble Lord, Lord Griffiths, about the effect on business. It said:
“The paper fails to address the harmful activity that affects businesses, in terms of revenue generation, investment and creative innovation”.
Another group, Defend Digital Me, warns against giving the Home Office carte blanche to regulate the internet, saying that children must not be the excuse that is talked up into a reason enabling greater control of the internet by the Home Office. It expresses particular concern about paragraph 21 of the White Paper.
There are real and present dangers out there to be addressed, but also concerns that ill thought-out measures could undermine some of the real benefits that the internet has brought us. The challenge is to produce an internet that is open and vibrant, yet also protects its users from harm. The days are long gone when public opinion was content to see the internet as a kind of Wild West beyond the rule of law. We have now reached a situation where Mark Zuckerberg of Facebook said:
“If the rules for the internet were being written from scratch today, I don’t think people would want private companies to be making … decisions around speech, elections and data privacy without a more … democratic process”.
Quite so.
Nor are we starting from an entirely blank sheet of paper. In the Information Commissioner, we have someone with authority and respect both at home and abroad. We have an Electoral Commission that will need extra resources and new powers to protect our democracy from abuse carried out using new technologies. Ofcom, a creation of the Communications Act 2003, has proved a highly successful and respected regulator. We also have good examples of international co-operation in the field. The EU general data protection regulation is now embedded in the Data Protection Act 2018 and is a good example of addressing online harms via international co-operation. I understand that the GDPR is now being looked at by a number of other jurisdictions, which are using it as a template for their own legislation. Taking up the point that the Minister made in his opening remarks, I see no reason why we should not aspire to global conventions which the whole world can adopt.
In so doing, we must be aware that elsewhere in the world, authoritarian Governments are attempting to insulate themselves from transparency and accountability by trying to curb and shackle the internet, precisely because of its ability to shine light into dark corners. Of course we want to see the freedom of the press upheld. I think the technology is taking us into difficult areas here. There is an overlap between print media organisations and their online publications, and there are questions about where the various jurisdictions apply. Before those organisations get too indignant, it is interesting to note that the worst offender following the Christchurch tragedy was Mail Online, which continued to carry a video of the tragedy, and the manifesto behind it, long after Facebook had taken them down.
The White Paper paints a very broad canvas and, as I have cited, critics call for more action and greater safeguards. I just wonder whether draft legislation would not benefit from pre-legislative scrutiny along the lines of the Puttnam committee, which examined the Communications Bill in 2002 and on which I served. I am delighted to see the noble Lord, Lord Puttnam, in his place. That committee held hearings in public and on the air. As a Joint Committee, it was able to draw on strengths and experiences from both Houses.
By the end of the process, we will have a suite of powerful regulators overseeing these matters: the new super-regulator envisaged by the White Paper, the ICO, Ofcom, a better resourced and empowered Electoral Commission and a revitalised CMA. But how will they work together? Who will report to whom? Will some take responsibilities already held by other regulators? There is a lot of thinking to be done. In the Statement the noble Baroness, Lady Blackwood, spoke about a need for coherence in the way government approaches this. I wonder how interdepartmental co-operation will be achieved. Will there be a special Cabinet committee on this? How will that coherence across Whitehall be achieved?
Parliament, too, will have to give careful thought to how best it links in with this new regulatory framework, either by creating a Standing Committee of both Houses or perhaps by creating an advisory committee akin to the Bank of England’s Monetary Policy Committee, consisting of those best qualified to give advice on new developments in technology which would allow government and Parliament to future-proof as best we can, while keeping oversight of the new technologies within democratic control.
I hope this does not do too much damage to the reputation of the Secretary of State for DCMS, but I worked with him for a couple of years in the coalition Government. I have always admired his lawyerly calm. This will be much needed as we move ahead in this area. There will be great pressure on us to do something quickly. There is obviously a need to bring forward statutory regulation and there will be a need for education and training, to which some of my colleagues will refer. As well as the need to move quickly, there is also a need to get it right. Perhaps in helping to achieve that end, this House might yet prove its usefulness to my children and to the son of the right reverend Prelate the Bishop of Durham.
Regulation, to my mind at least, should be a last resort. How sure are we that it is needed? After all, we have laws against the dissemination of terrorist materials, malicious communication, defamation, the incitement of racial and religious hatred and the intentional causing of harassment, alarm and distress. No doubt other such laws could and will be imagined, although never, I hope, the overbroad restrictions on so-called “extremist activity” that were contemplated in the Queen’s Speeches of 2015 and 2016. However, laws of this kind were developed for a world of physical interactions and legal borders. They require perpetrators to be identified and brought to justice in our own jurisdictions. Those who are abroad, or who can effectively ensure their anonymity, cannot be reached. The delicate framework of our analogue laws is not on its own sufficient to contain the turbocharged power of internet communication, let alone to discourage online behaviour that is anti-social rather than unlawful.
What, then, of self-regulation by the internet intermediaries? It already exists, of course, and will continue to be central to any regulatory scheme, but its inadequacy is illustrated by the regular evidence sessions—most recently last week—in which Facebook, Twitter and YouTube are questioned by the Home Affairs Select Committee. They speak of their high standards, terms of service and internal guidelines. They claim credit for recruiting human moderators, for their use of AI and for suspending and deleting accounts. They in turn are criticised for their lack of transparency, for the patchy and inconsistent application of their standards and for their unwillingness to volunteer information that could be of assistance to law enforcement. This is not a satisfactory state of affairs. Partly, that is a function of the sheer size of the task, with hours of video uploaded to YouTube every second, limited numbers of human monitors and algorithms that are good at spotting nipples and rather less good at spotting irony. These problems will continue whoever sets the standards.
But the status quo also reveals a democratic deficit. We in Parliament, not unaccountable executives in California, should be approving the ground rules for those who do business in our country, and an independent regulator, accountable to Parliament, should be encouraging compliance and enforcing where necessary. That is what democratic governance of the internet needs to look like, as some of the tech companies seem now to acknowledge. The concept of the statutory duty of care, proposed by Professor Lorna Woods and given effect in this White Paper, is one that I support, as is the principle that companies cannot realistically be required to check every piece of content before upload for lawfulness, irrespective of whether we remain subject to the e-commerce directive, which requires that to be the case.
Much of the criticism of the White Paper has centred on the use of nebulous terms such as “trolling”, “extremism”, “harm” and “offence”. These are far too broad to be treated as blanket prohibitions with coercive consequences. Some of them could usefully be lost altogether. But in broadcasting at least the concept of harm has proved tolerable in the context of a detailed and context-specific code of practice. My experience of Ofcom, which I should say has extended to representing it at the recent Gaunt case in the English courts and in the European Court of Human Rights, is that with really good guidance even quite broad concepts are capable of being applied with ample regard for human rights. As it explained its approach to me at the time, every case is a freedom of expression case and it starts with a presumption of freedom. It remains to be seen whether the internet platforms are as susceptible to regulation as the broadcasters with which they so often nowadays share a screen. The sheer volume of material and the fact it is not generated by the platforms themselves will ensure that and will require the regulator inevitably to prioritise.
Some platforms might react by overcensoring the content that they allow to be carried—a risk that surely must be mitigated by some mechanism for independent review. Others might display the “refusal to act responsibly” ascribed to Facebook last week by the Privacy Commissioner of Canada in his statement on his Cambridge Analytica investigation—I hope that Sir Nick Clegg was listening. There will be practical difficulties, some of them unexpected, because, as the Minister said when introducing the White Paper, no one has done it before.
Liam Byrne MP has pointed out that, for all the benefits brought by the previous Industrial Revolution, it took numerous Factories Acts over the course of more than a century before its worst excesses could be curbed. This White Paper leaves many important issues for another day—market concentration, unattributable personalised advertising, lack of algorithmic transparency—but I like it more than I expected to, and I hope to participate on its journey into law.
When I speak with families who have lost loved ones to gambling-related harms, they want to know why companies rarely lose their licences. It appears that the larger high street companies have little to fear that that might be the case. Putting it very bluntly, one of the questions I want to ask is: could it be envisaged, under the proposals as they emerge, that some of these companies could actually find their licences being revoked if they are not able or willing to deliver the public goods we need them to deliver?
The White Paper, I suppose not surprisingly, gives limited details on the funding and membership of the regulator and the regulatory body. I would be very concerned if a solely industry-funded organisation might lead to a culture of mistrust, especially surrounding the urgent need to have independent research and scrutiny. The regulator and any regulatory bodies need to be completely independent of the industry. We will be kidding ourselves if we do not think that the industry is already recruiting and deploying people to lobby individual Members of both Houses. I am sure that is already going on.
But all this is irrelevant if the regulators themselves are ignored. Again going back to gambling, the issue I have been closely associated with, last week I was surprised to see that the Minister for Sport and Gambling appeared to dismiss a call for a mandatory levy, just minutes after the chair of the industry regulator had precisely called for one. Can the Government pledge to this House that any similar tough calls from the regulator will be championed, not rejected?
I have one or two other concerns that I want to touch on at this early stage of the discussion we are having, as we set out various issues to be debated. For example, the White Paper clearly highlights the use of addiction by certain sorts of products online. This is about not just gambling but gaming. The evidence has been growing very consistently that many things online can be hugely addictive; indeed, they are designed to keep you online for long periods. Many people will be aware that one of the issues is that a large proportion of company profits stem from the small problem group of people who are addicted to gambling, gaming or whatever it is. Indeed, they rather rely on it for their profits. Yet we do not seem to have much in this White Paper about how to deal with these products, which are designed to be addictive. This is something that was picked up by the noble Baroness, Lady Kidron, in her report Disrupted Childhood.
What are we going to do to address these things taking hold of people’s time and energy, and in some cases becoming quite obsessive? For example, will future legislation require gaming companies to have a “pause” function, allowing people to stop and take a breath? What about the mechanism to regulate “dark nudges”, which I have been reading about? People with potential addictions find that, at just the moment they try to come off, some extra new thing is offered to them in an uncanny way that seems to have been designed to do so. These are particularly problematic when you talk to people who are recovering or are addicts. How are we going to address these issues? With so many online companies using addictive products, it would be good for many users if an as yet unnamed future regulator ensured we had some research on how to deal with this sort of issue.
I dread to think of the Minister thinking that a regulator is going to be a silver bullet. This is a much bigger societal issue that we have to go on debating. I am concerned that, while the White Paper portrays the experience of the gambling sector as a land illuminated by sunlit uplands, all due to an industry regulator, that is not how it appears to many of the addicts or their families who have lost loved ones. Vulnerable people and children using the internet deserve the right level of regulation. That will involve some self-regulation, though I have to say that in my experience, talking with people, self-regulation is not working very well in other industries. Just last week, Snapchat was revealed to have extraordinarily weak standards of age verification.
Also, any proposals must be adaptable. I was dealing with this matter in 2011, but even before that, we were aware of the emergence of the internet, but did not fully understand how it would develop. Therefore, we need to think of this as being part of what I would describe as smart legislation—we need to ensure that we can adapt and change when the circumstances and the technology change. I think a co-operative approach—a partnership basis—should remain in place, as well as having a regulator to deal with some of the worst offences or threats, because if you take away this partnership approach and this self-regulatory element, you will have great difficulties in maintaining the necessary good will, which is very important, particularly in dealing with something that is not just British, not just domestic, but is essentially very international in its implications.
The regulatory regime should be a last resort, if other means are not achieving the ends you need. There is an inherent risk in what is being proposed here, that it could lead to legalistic and obstructive action, with proscription replacing persuasion or agreement, sometimes with positive outcomes. The good intentions of a regulator must not stamp on or pre-empt the good will I referred to, and the voluntary rectification, but as I have said, the UK is, in many ways, in the lead. We are not the worst country. We are not a country where these abuses are particularly noted. We have the fastest removal rates for offensive material in the world. Industry has responded to concerns, and new tools such as web-crowding technology, image classifiers, image hashing and webpage blocking are regularly deployed. That is why I think it is best to mix punitive measures fairly with maximum co-operation. Child sexual abuse imagery hosted in the UK is now at a lower level than it was 15 years ago. Of 105,000 webpages found to contain such material in 2018, only 41 of them were hosted in the United Kingdom. That is nothing to be proud of in international terms, but it shows that our hosting, and the effects of what we are trying to do with host sites, are having some results.
The National Crime Agency estimates that at least 80,000 people regularly view child sexual abuse images in the UK. However, they are viewing them mostly on sites hosted outside this country. One of the White Paper’s conclusions is that the proposed regulator’s powers may not, in my opinion, have a sufficiently open-door approach to those who wish to report offensive material. There is reference to the need for redress and to have a very effective redress system. However, it needs more than that. We need to make sure that the regulator is working not just in isolation but with others, as I said before.
Regarding the funding of a possible new regulator, we would obviously look first to industry to pick up the bill. That is important, but the right reverend Prelate spoke about GambleAware. Speaking as a former Gambling Minister—I may have put that wrongly; I meant as a Minister formerly responsible for gambling in this country—comparisons with GambleAware and Drinkaware are probably not terribly helpful because this is a very different case. In those cases, the drink and gambling industries come forward with proposals to suggest limitation on activity, whereas of course we are talking about elimination rather than limitation.
Finally, I would like to refer to the current provisions mentioned in the White Paper. I think one or two noble Lords have also referred to them. First, I am sure your Lordships will be delighted if I mention that there is quite a lot of EU material here. The EU e-commerce directive of 2000 was referred to a few moments ago by the noble Lord, Lord Anderson. That directive was certainly important but it did not make service providers liable for content; it made them obliged to remove illegal content but there was no obligation under article 15 to continue the monitoring of those sites in a way that I suggest we think they should be.
Secondly, the big point is that I was a shadow rapporteur on the EU general data protection regulation. Now that is important legislation, and it will have an impact here not on everything but certainly on the activities of the regulator and the areas of redress. When my noble friend the Minister winds up this debate, perhaps he could make further reference to those EU regulations and directives. How are we going to ensure that in an international setting, with the clear pressures now on us in this area, we are able to replicate them and ensure that our colleagues elsewhere in the world, where much of the abuse of the internet is coming from, will continue to comply with standards and a quality of approach equivalent to that which we have ourselves?
“In a democracy, we need to experience a plurality of voices and, critically, to have the skills, experience and knowledge to gauge the veracity of those voices”.
Many people have rightly commended the Government’s White Paper for being a global trailblazer in its strategy for tackling online harms. However, I doubt whether I will be the only Member of your Lordships’ House to seek a far greater level of clarity, energy and, crucially, investment in what the White Paper describes as digital literacy. In their White Paper, the Government rightly argue that the promotion of digital literacy has a wide range of benefits,
“including for the functioning of democracy by giving users a better understanding of online content and enabling them to distinguish between facts and opinions online”.
This is an entirely laudable objective, but we have been here before. In fact, it was 15 years ago, in relation to the media literacy responsibilities of Ofcom, as set out in what became the Communications Act 2003, which the noble Lord, Lord McNally, has already referred to today. I am sorry to report that successive Governments, including those of my own party, never seriously grasped—let alone ensured—the delivery of Ofcom’s obligations regarding what the White Paper has now accurately rechristened digital literacy. It is true that for a decade, Ofcom made efforts to address this issue but the specific grant used for that purpose was phased out by DCMS several years ago.
It will be argued that some technical research has been published, but surely that is a woefully inadequate response to the real task at hand: to equip present and future generations with the ability to assess the vast swathes of misinformation, even outright lies, which now proliferate across the internet—whether on social media, blogs or what can at first glance appear to be credible news websites. Had we seriously risen to that task, we might have avoided at least some of the deeply troubling outcomes we now face. We could have made a better job of preparing ourselves for the worst impacts of the environmental crisis that millions of young people now rightly warn us against. Even the result of the referendum might have been different if those aged between 18 and 23 had fully understood the importance of an informed vote for their own futures, and the degree to which they were capable of being marginalised and manipulated in the new digital world.
Any 10 year-old at the time of the Communications Act 2003 will now be aged 26. We are talking about literally millions of voters who, with a better understanding of the power of misinformation, could have demanded a more honest debate on the ramifications and potential outcomes of what for many of them may well have been a life-defining moment. It is estimated that 64% of young people aged 18-24, or 3.6 million out of a total of 5.7 million, turned out to vote in the referendum. Of that 64%, it is further estimated that almost three quarters—2.6 million—voted to remain. Surely it is now imperative that as legislators, we develop a laser-like focus on ensuring that people, especially the young, are equipped with the best means to ensure that never again can our democratic processes be subject to the kinds of distortions we all suffered in the months and weeks leading up to 23 June 2016. Consider this hypothesis, if your Lordships will: had all that age group voted in the same proportion as those who did engage, the result would have been a remain victory by over half a million votes. That is how important a truly informed and fully participatory democracy is to our and their futures.
The sad truth is that in a digital age, we cannot regulate misinformation out of existence. Those days, if they ever existed, have long since passed. Instead, we need to take unambiguous responsibility for putting tools in the hands of users to enable them to distinguish between fact and fiction. This is far from being a new problem but its scale has increased exponentially and its new forms are extremely challenging for any Government to combat. When he replies, will the Minister give the House some assurance that DCMS, the Home Office and the Department for Education are actively working together and prepared to invest time, effort and energy into correcting a lamentable decade of inaction?
I close by quoting from a speech made to the American Society of Newspaper Editors in 1925 by the then President of the United States, Calvin Coolidge:
“Wherever despotism abounds, the sources of public information are the first to be brought under its control … It has always been realized, sometimes instinctively, oftentimes expressly, that truth and freedom are inseparable …The public press”—
he was speaking at a time when newspapers were pretty well the only form of information—
“under an autocracy is necessarily a true agency of propaganda. Under a free government it must be the very reverse. Propaganda seeks to present a part of the facts, to distort their relations, and to force conclusions which could not be drawn from a complete and candid survey of all the facts … propaganda seeks to close the mind while education seeks to open it. This has become one of the dangers of the present day”.
As this Bill moves through the House, I will be arguing that digital misinformation has become the greatest single danger to our democracy and that to pretend otherwise is to risk fatally undermining it.
As a world leader in emerging technologies and innovative regulation, the UK is well placed to seize the opportunities presented by the measures set out in the White Paper. We want technology itself to be part of the solution, and we propose measures to boost the tech safety sector in the UK, as well as measures to help users manage their safety online. Furthermore, we believe that this approach can lead to a new, global approach to online safety that supports our democratic values and promotes a free, open and secure internet. The Government will look to work with other countries to build an international consensus behind it. We will seek to work with international partners to build agreement and identify common approaches to keep citizens safe online. Having these relationships will support the UK’s ability to put pressure on companies whose primary base is overseas.
Since the White Paper was published earlier this month, the reaction has been generally positive. Noble Lords who spoke in the earlier debate, and Members in the other place, welcomed the Government’s action in this crucial area, and much, although not all, of the media coverage has also been supportive. However, I would like to focus on a couple of areas where our proposals have come under close scrutiny.
First, there has been comment in some newspapers that the measures we have set out in the White Paper will fetter the freedom of the press. I reassure noble Lords that that is not the case. The Government strongly support press freedom and editorial independence. A vibrant, independent, plural and free press that is able to hold the powerful to account is essential to our democracy. Journalistic or editorial content will not be affected by the regulatory framework that we are putting in place. Furthermore, the regulator will have a legal duty to pay due regard to protecting users’ rights online—in particular, their privacy and freedom of expression. The regulator will not be responsible for policing truth and accuracy online.
There is a question of whether newspapers’ comment sections will fall within the scope of the online regulator. We are consulting on proposals for the statutory duty of care to apply to companies that allow users to share or discover user-generated content or interact with each other online. However, as the Secretary of State made clear in the other place, where these services are already well regulated, as is the case with IPSO and Impress regarding their members’ moderated comment sections, we will not duplicate those efforts.
The second area where concerns have been expressed since the White Paper’s launch concerns the potential burdens on small and medium-sized enterprises. Companies within scope will include SMEs and start-ups, but a key element of the regulator’s approach will be the principle of proportionality. The regulator will be required to assess companies according to their size and resources. The regulator will also take a risk-based approach, focusing initially on companies whose services pose the biggest risk of harm to users, based on factors including the scale of the service. The regulator will have a legal duty to pay due regard to innovation— indeed, the regulatory framework set out in the White Paper is pro innovation and will preserve the openness and enterprise that lie at the heart of the UK’s flourishing tech sector.
I believe that we have both a duty to act to protect UK citizens and an opportunity to lead the world on this issue. I firmly believe that this White Paper is a valuable step forward in creating a safer and stronger internet that works for the benefit of all humankind. To get this right, we will need to work with our civil society, our technology sector and, of course, Members of both Houses. We are consulting on the White Paper and have already received around 1,000 responses. As part of that, I am looking forward to hearing noble Lords’ contributions. I beg to move.