Online Safety Bill

Committee (7th Day)

Amendment 56

56: After Clause 17, insert the following new Clause— “OFCOM reviews of complaints systems (1) Within the period of one year beginning on the day on which this Act is passed, and annually thereafter, OFCOM must review the workings of the complaints systems set up by regulated companies under section 17 (duties about complaints procedures), as to—(a) their effectiveness;(b) their cost and efficiency; and(c) such other matters as seem appropriate.(2) In undertaking the reviews under subsection (1), OFCOM may take evidence from such bodies and individuals as it considers appropriate.(3) If OFCOM determines from the nature of the complaints being addressed, and the volumes of such complaints, that systems established under section 17 are not functioning as intended, it may establish an online safety ombudsman with the features outlined in subsections (4) to (8), with the costs of this service being met from the levy on regulated companies.(4) The purpose of the online safety ombudsman is to provide an impartial out-of-court procedure for the resolution of any dispute between—(a) a user of a regulated user-to-user service, or a nominated representative for that user, and(b) the regulated service provider,in cases where complaints made under processes which are compliant with section 17 have not, in the view of the user (or their representative), been adequately addressed.(5) The ombudsman must allow for a user (or their representative) who is a party to such a dispute to refer their case to the ombudsman if they are of the view that any feature or conduct of one or more provider of a regulated user-to-user service, which is relevant to that dispute, presents (or has presented) a material risk of—(a) significant or potential harm;(b) contravening a user’s rights, as set out in the Human Rights Act 1998, including freedom of expression; or(c) failure to uphold terms of service.(6) The ombudsman may make special provision for children, including (but not limited to) prioritisation of—(a) relevant provisions under the United Nations Convention on the Rights of the Child; or(b) a child’s physical, emotional or psychological state.(7) The ombudsman must have regard to the desirability of any dispute resolution service provided by the ombudsman being— (a) free;(b) easy to use, including (where relevant) taking into account the needs of vulnerable users and children;(c) effective and timely;(d) fair and flexible, taking into account different forms of technology and the unique needs of different types of user; and(e) transparent.(8) The Secretary of State must ensure that use of any dispute resolution service provided by the ombudsman does not affect the ability of a user (or their representative) to bring a claim in civil proceedings.”Member’s explanatory statement This new Clause would require Ofcom to conduct regular reviews of the effectiveness of complaints procedures under Clause 17. If Ofcom were of the view that such procedures were not functioning effectively, they would be able to establish an online safety ombudsman with the features outlined in subsections (4) to (8) of the Clause.

My Lords, Amendment 56 proposes a pathway towards setting up an independent ombudsman for the social media space. It is in my name, and I am grateful to the noble Lord, Lord Clement-Jones, for his support. For reasons I will go into, my amendment is a rather transparent and blatant attempt to bridge a gap with the Government, who have a sceptical position on this issue, and I hope that the amendment in its present form will prove more attractive to them than our original proposal.

At the same time, the noble Baroness, Lady Newlove, has tabled an amendment on this issue, proposing an independent appeals mechanism

“to provide impartial out of court resolutions for individual users of regulated services”.

Given that this is almost exactly what I want to see in place—as was set out in my original amendment, which was subsequently rubbished by the Government—I have also signed the noble Baroness’s amendment, and I very much look forward to her speech. The Government have a choice.

The noble Baroness, Lady Fox, also has amendments in this group, although they are pointing in a slightly different direction. I will not speak to them at this point in the proceedings, although I make it absolutely clear that, while I look forward to hearing her arguments —she is always very persuasive—I support the Bill’s current proposals on super-complaints.

Returning to the question of why we think the Bill should make provision for an independent complaints system or ombudsman, I suppose that, logically, we ought first to hear the noble Baroness, Lady Newlove, then listen to the Government’s response, which presumably will be negative. My compromise amendment could then be considered and, I hope, win the day with support from all around the Committee—in my dreams.

We have heard the Government’s arguments already. As the Minister said in his introduction to the Second Reading debate all those months ago on 1 February 2023, he was unsympathetic. At that time, he said:

My Lords, this is the first time that I have spoken in Committee. I know we have 10 days, but it seems that we will go even further because this is so important. I will speak to Amendments 250A and 250B.

I thank the noble Lords, Lord Russell of Liverpool and Lord Stevenson of Balmacara, and, of course— if I may be permitted to say so—the amazing noble Baroness, Lady Kidron, who is an absolute whizz on this, for placing their names on these amendments, as well as the 5Rights Foundation, the Internet Watch Foundation and the UK Safer Internet Centre for their excellent briefings. I have spoken to these charities, and the work they do is truly amazing. I do not think that the Bill will recognise just how much time and energy they give to support families and individuals. Put quite simply, we can agree that services’ internal complaint mechanisms are failing.

Let me tell your Lordships about Harry. Harry is an autistic teenager who was filmed by a member of the public in a local fast-food establishment when he was dysregulated and engaging in aggressive behaviour. This footage was shared out of context across social media, with much of the response online labelling Harry as a disruptive teenager who was engaging in unacceptable aggression and vandalising public property. This was shared thousands of times over the course of a few weeks. When Harry and his mum reported it to the social media platforms, they were informed that it did not violate community guidelines and that there was a public interest in the footage remaining online. The family, quite rightly, felt powerless. Harry became overwhelmed at the negative response to the footage and the comments made about his behaviour. He became withdrawn and stopped engaging. He then tried to take his own life.

It was at this point that Harry’s mum reached out to the voluntary-run service Report Harmful Content, as she had nowhere else to turn. Report Harmful Content is run by the charity South West Grid for Learning. It was able to mediate between the social media sites involved to further explain the context and demonstrate the real-world harm that this footage, by remaining online, was having on the family and on Harry’s mental health. Only then did the social media companies concerned remove the content.

Sadly, Harry’s story is not an exception. In 2022, where a platform initially refused to take down content, Report Harmful Content successfully arbitrated the removal of content in 87% of cases, thus demonstrating that even if the content did not violate community guidelines, it was clear that harm had been done. There are countless cases of members of the public reporting a failure to remove content that was bullying them. This culture of inaction has led to apathy and a disbelief among users that their appeals will ever be redressed. Research published by the Children’s Commissioner for England found that 40% of children did not report harmful content because they felt that there

“was no point in doing so”.

The complaints mechanism in the video-sharing platform regulation regime is being repealed without an alternative mechanism to fill the gap. The current video-sharing platform regulation requires platforms to

“provide for an impartial out-of-court procedure for the resolution of any dispute between a person using the service and the provider”

to operate impartial dispute resolution in the event. In its review of the first year of this regulation, Ofcom highlighted that the requirements imposed on platforms in scope are not being met in full currently. However, instead of strengthening existing appeals processes, the VSP regime is set to be repealed and superseded by this Bill.

The Online Safety Bill does not have an individual appeals process, meaning that individuals will be left without an adequate pathway to redress. The Bill establishes only a “super-complaints” process for issues concerning multiple cases or cases highlighting a systemic risk. It will ultimately fall to the third sector to highlight cases to Ofcom on behalf of individuals.

The removal of an appeals process—given the repeal of the VSP regime—would be in stark contrast with the direction of travel in other nations. Independent appeals processes exist in Australia and New Zealand, and more countries are also looking at adopting independent appeals. The new Irish Online Safety and Media Regulation Act includes provision

“for the making of a complaint to the Commission”.

The Digital Services Act in Europe also puts a process in place. There is precedent for these systems. It cannot be right that the Republic of Ireland and the UK and its territories have over 52 ombudsmen in 32 sectors, yet none of them works in digital at a time when online harm—especially to children, as we hear time and again in your Lordships’ House—is at unprecedented levels.

The Government’s response so far has been insufficient. When the Online Safety Bill received its seventh sitting debate, much discussion related to independent appeals, referred to here as the need for an ombudsman. The Digital Minister recognised: