Online Safety Bill

Report (2nd Day)

Relevant documents: 28th and 38th Reports from the Delegated Powers Committee, 15th Report from the Constitution Committee. Scottish and Welsh Legislative Consent granted.

Clause 10: Children’s risk assessment duties

Debate on Amendment 34 resumed.

We began this group on the previous day on Report, and I concluded my remarks, so it is now for other noble Lords to contribute on the amendments that I spoke to on Thursday.

My Lords, I rise emphatically to welcome the government amendments in this group. They are a thoughtful and fulsome answer to the serious concerns expressed from the four corners of the Chamber by a great many noble Lords at Second Reading and in Committee about the treatment of age verification for pornography and online harms. For this, I express my profound thanks to my noble friend the Minister, the Secretary of State, the Bill team, the Ofcom officials and all those who have worked so hard to refine this important Bill. This is a moment when the legislative team has clearly listened and done everything it possibly can to close the gap. It is very much the House of Lords at its best.

It is worth mentioning the exceptionally broad alliance of noble Lords who have worked so hard on this issue, particularly my compadres, my noble friend Lady Harding, the noble Baroness, Lady Kidron, and the right reverend Prelate the Bishop of Oxford, who all signed many of the draft amendments. There are the Front-Benchers, including the noble Lords, Lord Stevenson, Lord Knight, Lord Clement-Jones and Lord Allan of Hallam, and the noble Baroness, Lady Merron. There are the Back-Benchers behind me, including my noble friends Lady Jenkin and Lord Farmer, the noble Lords, Lord Morrow, Lord Browne and Lord Dodds, and the noble Baroness, Lady Foster. Of those in front of me, there are the noble Baronesses, Lady Benjamin and Lady Ritchie, and there is also a number too large for me to mention, from all across the House.

I very much welcome the sense of pragmatism and proportionality at the heart of the Online Safety Bill. I welcome the central use of risk assessment as a vital tool for policy implementation and the recognition that some harms are worse than others, that some children need more protection than others, that we are legislating for future technologies that we do not know much about and that we must engage industry to achieve effective implementation. As a veteran of the Communications Act 2003, I strongly support the need for enabling legislation that has agility and a broad amount of support to stand the test of time.

However, there is also a time when it is essential that we are absolute about things and that we say that there are some contents and functions that children should never encounter anywhere on the internet. If we want to be taken seriously as a Parliament, and if we want to bring about meaningful behavioural change, we need to tether the regulation of the internet to at least some certainties, and that is why this package of government amendments is so very welcome. We need to make it clear to anyone doing business on the internet that, sometimes, there are no loopholes, no mitigations, no legal cop-outs, no consultations and no sliding scales. Sometimes Parliament makes choices and decides that some things are just plain wrong and beyond the pale.

It was the moral relativism and misguided sense of proportionality and consultative handling, when it came to the age verification measures for damaging and violent pornography, that so alarmed so many people about the draft Bill. It is very much the clarity of the newly introduced government amendments that make them so powerful. They make it crystal clear that no child should ever see any pornography anywhere on the internet. That is a massive relief to those who have campaigned so hard and for so long for final age verification for pornography and priority harms. On this, I am particularly thankful to the noble Baroness, Lady Benjamin, who I know is seething with frustration that she is not speaking, and to my noble friend Lord Farmer. By introducing clear, concrete and definitive measures, this government package provides a tether that anchors the Bill to some certainty.

The government amendments are an essential step to ending the corrosive sense of exceptionalism that has hung around the regulation of online spaces for too long. We will no longer consult with industry about what it might or might not be expected to do to protect children, as was first intended. Instead, we are defining a high bar and applying it to all pornographic content and priority harms, wherever they are on the internet, the metaverse or any future technology. We are legislating for all online businesses, wherever they are, and whether they are big, small, mobile, meta or whatever.

Thank goodness that our Government have recognised that we have reached an inflection point in the history of the online world, where the access to internet content and functions are in the pockets and bedrooms of our children. We should no longer victim-blame our children by calling for more education; we cannot scapegoat parents by making implausible expectations about how families can police or manage their children’s times on devices. Instead, with these amendments, the Government have recognised that we need internet companies to take responsibility for what is on their platforms; there will be no more dodging or obfuscation. If you have horrible, violent porn content on your service, you need a system to keep children away—full stop; no haggling.

This is a profound challenge to Twitter, Instagram, Snapchat, TikTok, WhatsApp, Reddit, Facebook and all the services that the Children’s Commissioner rightly identified as gateways to pornography: businesses that have, for too long, happily recruited kids to their algorithms with porn and have taken advertisers’ money for clicks from kids watching porn, regardless of the consequences to society. This is also a challenge to Pornhub and all the other professional pornographers that have benefited from the constructive ambiguity of the last 30 years and will now be called to account.

This is a huge victory. My noble friend Lord Grade thoughtfully and movingly told us that he would judge Ofcom’s mission to be a success if platforms finally took responsibility for what was on their services, and I take that very seriously. The government amendments in this group provide a powerful illustration of that principle and a tool for bringing it about. Effective enforcement by Ofcom is essential for giving tech bosses, who are too often happy to pay the fines and move on, a certain clarity of mind. I welcome the government amendments on senior management liability, which introduce the threat of prison to those who egregiously breach Ofcom’s standards. However, as the House knows, several enforcement measures are yet to reach us, and I flag in advance to my noble friend the Minister that these are considered critical to the success of the new regime by several noble Lords.

The government amendments are a massive step towards applying the common-sense principle that the rules about what is illegal and inappropriate for children in the real world should be applied equally to the online world, with equal vigour and equal scope. For that reason, I very much welcome the announcement of a porn review to investigate gaps in UK regulation that allow exploitation or abuse to occur online, in clear breach of long-standing criminal and civil laws, and to identify barriers to enforcing criminal law.

This is a knotty issue that involves several cross-departmental dependencies, including the allocation of resources by the Home Office, the writing of proper guidelines by the Ministry of Justice, the prioritisation of prosecutions by the CPS, and the building of a relevant skills base in our police forces. I therefore ask the Minister for guidance on the timetable, the terms of reference and the appointment of a chair for this review. I would also ask that a wide range of voices are heard and prioritised for this review.

The Government deserve considerable praise for their bold steps: not just to protect children from the harms of pornography, and to put Britain at the forefront of the global response to online safety, but also to nurture a benign environment for our critically important tech sector. These government amendments will create legislative certainty: an essential foundation for innovation. They will help rehabilitate the reputation of a tech sector reeling from the excesses of bad actors and the misplaced moral relativism of this young, exciting and vibrant industry. That will have benign consequences for investment and recruitment.

With a final word of optimism, I ask my noble friend the Minister what work will be done to bring alignment with other jurisdictions and to promote Britain as a well-regulated destination for investment, much as we do for life sciences.

My Lords, I reiterate what the noble Lord, Lord Bethell, has said and thank him for our various discussions between Committee and Report, particularly on this set of amendments to do with age verification. I also welcome the Government’s responsiveness to the concerns raised in Committee. I welcome these amendments, which are a step forward.

In Committee, I was arguing that there should be a level playing field for regulating any online platform with pornographic content, whether it falls under Part 3 or Part 5 of the Bill. I welcome the Government’s significant changes to Clauses 11 and 72 to ensure that robust age verification or estimation must be used and that standards are consistent across the Bill.

I have a few minor concerns that I wish to highlight. I am thoughtful about whether enough is required of search services in preventing young people from accessing pornography in Clause 25. I recognise the Government believe they have satisfied the need. I fear they may have done enough in the short term, but there is a real concern that this clause is not sufficiently future-proofed. Of course, only time will tell. Maybe the Minister could advise us further in that particular regard.

In Committee, I also argued that the duties in respect of pornography in Parts 3 and 5 must come into effect at the same time. I welcome the government commitment to placing a timeframe for the codes of practice and guidance on the face of the Bill through amendments including Amendment 230. I hope that the Minister will reassure us today that it is the Government’s intention that the duties in Clauses 11 and 72 will come into effect at the same time. Subsection (3) of the new clause proposed in Amendment 271 specifically states that the duties could come into effect at different times, which leaves a loophole for pornography to be regulated differently, even if only for a short time, between Part 3 and Part 5 services. This would be extremely regrettable.

My Lords, I welcome the government amendments in this group, which set out the important role that age assurance will play in the online safety regime. I particularly welcome Amendment 210, which states that companies must employ systems that are “highly effective” at correctly determining whether a particular user is a child to prevent access to pornography, and Amendment 124, which sets out in a code of practice principles which must be followed when implementing age assurance—principles that ensure alignment of standards and protections with the ICO’s age appropriate design code and include, among other things, that age assurance systems should be easy to use, proportionate to the risk and easy to understand, including to those with protected characteristics, as well as aiming to be interoperable. The code is a first step from current practice, in which age verification is opaque, used to further profile children and related adults and highly ineffective, to a world in which children are offered age-appropriate services by design and default.

I pay tribute again to the noble Lord, Lord Bethell, and the noble Baroness, Lady Benjamin, and I associate myself with the broad set of thanks that the noble Lord, Lord Bethell, gave in his opening speech. I also thank colleagues across your Lordships’ House and the other place for supporting this cause with such clarity of purpose. On this matter, I believe that the UK is world-beating, and it will be a testament to all those involved to see the UK’s age verification and estimation laws built on a foundation of transparency and trust so that those impacted feel confident in using them—and we ensure their role in delivering the online world that children and young people deserve.

I have a number of specific questions about government Amendment 38 and Amendment 39. I would be grateful if the Minister were able to answer them from the Dispatch Box and in doing so give a clear sign of the Government’s intent. I will also speak briefly to Amendments 125 and 217 in my name and those of the noble Lord, Lord Stevenson, the noble Baroness, Lady Harding, and the right reverend Prelate the Bishop of Oxford, as well as Amendment 184 in the names of the noble Baroness, Lady Fox, and the noble Lord, Lord Moylan. All three amendments address privacy.