- Report (2nd Day) (Continued)
- 9:01 pm
- Amendment 84
- 84: Clause 19, page 24, line 4, at end insert “, and (Disclosure of information about use of service by deceased child users) (deceased child users).” Member’s explanatory statement This amendment has the effect that OFCOM have a duty to review compliance by user-to- user service providers with the new duties imposed by the Clause proposed after Clause 67 in my name.
- My Lords, as I set out in Committee, the Government are bringing forward a package of amendments to address the challenges that bereaved parents and coroners have faced when seeking to access data after the death of a child.These amendments have been developed after consultation with those who, so sadly, have first-hand experience of these challenges. I thank in particular the families of Breck Bednar, Sophie Parkinson, Molly Russell, Olly Stephens and Frankie Thomas for raising awareness of the challenges they have faced when seeking access to information following the heartbreaking cases involving their children. I am also grateful to the noble Baroness, Lady Kidron, for championing this issue in Parliament and more widely. I am very happy to say that she is supporting the government amendments in this group.The loss of any life is heartbreaking, but especially so when it involves a child. These amendments will create a more straightforward and humane process for accessing data and will help to ensure that parents and coroners receive the answers they need in cases where a child’s death may be related to online harms. We know that coroners have faced challenges in accessing relevant data from online service providers, including information about a specific child’s online activity, where that might be relevant to an investigation or inquest. It is important that coroners can access such information.As such, I turn first to Amendments 246, 247, 249, 250, 282, 283 and 287, which give Ofcom an express power to require information from regulated services about a deceased child’s online activity following a request from a coroner. This includes the content the child had viewed or with which he or she had engaged, how the content came to be encountered by the child, the role that algorithms and other functionalities played, and the method of interaction. It also covers any content that the child generated, uploaded or shared on the service.
- My Lords, I thank the Minister and indeed the Secretary of State for bringing forward these amendments in the fulsome manner that they have. I appreciate it, but I know that Bereaved Families for Online Safety also appreciates it. The Government committed to bringing forward these amendments on the last day in Committee, so they have been pre-emptively welcomed and discussed at some length. One need only read through Hansard of 22 June to understand the strength of feeling about the pain that has been caused to families and the urgent need to prevent others experiencing the horror faced by families already dealing with the loss of their child.I will speak briefly on three matters only. First, I must once again thank bereaved families and colleagues in this House and in the other place for their tireless work in pressing this issue. This is one of those issues that does not allow for celebration. As I walked from the Chamber on 22 June, I asked one of the parents how they felt. They said: “It is too late for me”. It was not said in bitterness but in acknowledgement of their profound hurt and the failure of companies voluntarily to do what is obvious, moral and humane. I ask the Government to see the sense in the other amendments that noble Lords brought forward on Report to make children safer, and make the same, pragmatic, thoughtful solution to those as they have done on this group of amendments. It makes a huge difference.Secondly, I need to highlight just one gap; I have written to the Secretary of State and the Minister on this. I find it disappointing that the Government did not find a way to require senior management to attend an inquest to give evidence. Given that the Government have agreed that senior managers should be subject to criminal liability under some circumstances, I do not understand their objections to summoning them to co-operate with legal proceedings. If a company submits information in response to Ofcom and at the coroner’s request the company’s senior management is invited to attend the inquest, it makes sense that someone should be required to appear to answer and follow up those questions. Again, on behalf of the bereaved families and specifically their legal representatives, who are very clear on the importance of this part of the regime, I ask the Government to reconsider this point and ask the Minister to undertake to speak to the department and the MoJ, if necessary, to make sure that, if senior managers are asked to attend court, they are mandated to do so.
- My Lords, I also welcome this group of amendments. I remember a debate led by the noble Baroness, Lady Kidron, some time ago in the Moses Room, where we discussed this, and I said at the time I thought it would get fixed in the Online Safety Bill. I said that in a spirit of hope, not knowing any of the detail, and it is really satisfying to see the detail here today. As she said, it is testimony to the families, many of whom got in touch with me at that time, who have persisted in working to find a solution for other families—as the noble Baroness said, it is too late for them, but it will make a real difference to other families—and it is so impressive that, at a time of extreme grief and justifiable anger, people have been able to channel that into seeking these improvements.The key in the amendments, which will make that difference, is that there will be a legal order to which the platforms know they have to respond. The mechanism that has been selected—the information notice—is excellent because it will become well known to every one of the 25,000 or so platforms that operate in the United Kingdom. When they get an information notice from Ofcom, that is not something that they will have discretion over; they will need to comply with it. That will make a huge difference.
- 9:15 pm
- The noble Baroness made an important point on this around privacy. Importantly, the platforms will be handing the data over to a public authority in the United Kingdom. So it will go to Ofcom and then, through Ofcom, to a coroner’s court. Again, legal order and public authority are quite critical and we have a mechanism that deals with that. If we want to test the amendments, we can look at the practical effect they will have in light of what the barriers have been to date. The companies have been stubborn in taking an extreme position on non-disclosure, to a point that seems completely irrational to anyone outside.
- There have been three barriers. I will outline them briefly so that we understand how the amendments tackle them. The first barrier is legal concerns. This is not just the “I can’t give you the data because of data protection” type of limp excuse that we are all used to getting these days from different authorities. There are serious lawyers with genuine concerns that disclosure of data would lead a business into a risky area; businesses will tend to be risk-averse on data disclosures that they perceive to be optional or voluntary as opposed to those that they perceive to be mandatory. People may feel that they should feel the ethical or moral compulsion to disclose but, often, that has not been sufficient and legal concerns have been raised.
- The second barrier concerns real fears about what may happen with the data. I come back to the point raised by the noble Baroness, Lady Kidron. I know that people have been through this stuff and they want to see what has been going on. Much of the content on social media sites is hard to fully anonymise without it failing to fulfil the purpose of helping people to understand what was going on. There is a difficult line to tread here. I know that people who work on this will sometimes find that the content they are being asked to disclose feels very sensitive. Their overwhelming fear is that, by disclosing that data, they will create a knock-on effect where, because of the disclosure, other individuals will become distressed and may even harm themselves. Again, that is a genuine fear.
- The third barrier is embarrassment or shame at what has been going on and the platform not wanting to give transparency. I will not shy away from that; it is of course there as a strong motivation. People are sitting there defending their organisation and thinking, “Oh my goodness, we can’t disclose this”. So all three of these barriers exist at once. There are genuine legal fears, genuine fears about what may happen down the track—which is unknown—and then this corporate defensiveness which says, “Let’s not disclose”.
- If we look at the orders here and the mechanisms that have been proposed, the legal barriers are overcome, at least in relation to the basic compulsion to disclose. There are some interesting issues about the Stored Communications Act, and when you look at the history of the Cloud Act, which was an attempt to reform the Stored Communications Act, you see that it is all quite messy when you are dealing with disclosing personal data from the United States to Europe. It becomes particularly problematic if the data is about Americans; of course, if you are using a social media platform, it may be that some of the content that people or families want to see is associated with an American. So it is gratifying to hear from the Minister that the Government are going to look at that.
- Essentially, at least for much of the data, we will now have a straightforward legal mechanism that works. It cannot altogether fix this question of what happens with the data downstream. For that we have to trust Ofcom, working with the Information Commissioner’s Office and the coroners, to do the right thing and, when they get the data, to look after it. Then, if a platform is handing data over to agents of the British state with that kind of authority, it will feel that it can trust them. Let us hope that nothing happens and the trust will be there to move the data over and rely on their professionalism. The third issue of corporate embarrassment then becomes irrelevant, because they have no choice; that is then resolved and no longer a sufficient barrier to disclosure.
- I have a few questions on the specifics of this. The first is on Amendment 190, on platforms declaring in their terms how they will handle the data of deceased children. Again, I lived through this, and most of the stuff to do with memorialisation and bereavement was entirely ad hoc. Platforms were built in an incredibly optimistic fantasy California world where no one died, so they did not think about that. But then a friend of someone did, and they got in touch and said, “What should we do?” and they replied, “Oh, we’ll come up with something”. That is literally the origin story of a lot of these memorialisation policies and things like that. Someone then said, “Well, that doesn’t work very well”, and someone else asked, “Who constitutes a family member who can make the request?” It all happened in this very ad hoc way, so Amendment 190 is welcome in making sure that that is more consistent.
- It would be interesting if the Minister has any thoughts on how that extends to other people. Clearly, we are focused on deceased children, but some of the same considerations, certainly around transparency, apply to any deceased family member, whatever their age. Having a dedicated hotline specifically for children is right, but there is something interesting in Amendment 190 about filling the gaps around disclosure, transparency and memorialisation more generally, and making that consistent.
- The second question is on Amendment 273, on reports into a death. My understanding is that this relates to a death of anyone of any age and that it is not limited to children specifically. Again, it would be interesting to hear more about how the Government see that working because, as I understand it, the volume through that channel could be much greater if we are talking about any death at any age, which is how I read Amendment 273, unless I have misunderstood it.
- I have another question, on Amendment 249, which is on information notices specifically about child deaths. I do not want to broaden this out, but we need to flag that we will need some clarity around what assistance can be given to people where the death is of someone who is not a child. There will be situations that are important to families and where everyone has a huge amount of sympathy but where we are not dealing with a child. Again, it is right that we have this specific set of measures around deceased children, but we should expect that Ofcom will be asked, “What about other circumstances?” We need a reasonable answer to that: that other things are in place. I hope that the answer will be that, if it is a serious enough case, without the information notice powers Ofcom could still, under Amendment 273 as I read it, look into other deaths that involve adults, as well as the specific powers it has in relation to children. I would appreciate clarification from the Minister.
- My Lords, given the hour, I will be brief. I wanted to thank my noble friend the Minister and the Secretary of State, and to congratulate my friend the noble Baroness, Lady Kidron, on such an important group. It is late at night and not many of us are left in the Chamber, but this is an important thing that they have succeeded in doing together, and it is important that we mark that. It is also a hugely important thing that the bereaved families for justice have achieved, and I hope that they have achieved a modicum of calm from having made such a big difference for future families.I will make one substantive point, referencing where my noble friend the Minister talked about future Bills. In this House and in this generation, we are building the legal scaffolding for a digital world that already exists. The noble Lord, Lord Allan of Hallam, referenced the fact that much of this was built without much thought—not maliciously but just without thinking about the real world, life and death. In Committee, I was taken by the noble Lord, Lord Knight, mentioning the intriguing possibility of using the Data Protection and Digital Information Bill to discuss data rights and to go beyond the dreadful circumstances that these amendments cover to make the passing on of your digital assets something that is a normal part of our life and death. So I feel that this is the beginning of a series of discussions, not the end.I hope that my noble friend the Minister and whichever of his and my colleagues picks up the brief for the forthcoming Bill can take to heart how we have developed all this together. I know that today has perhaps not been our most wholly collaborative day, but, in general, I think we all feel that the Bill is so much the better for the collaborative nature that we have all brought to it, and on no more important a topic than this amendment.