198: Clause 91, page 82, line 14, at end insert—
“(o) the purpose of obtaining information relevant to the death of a child (as defined in section (Duties of OFCOM in certain cases where a child has died)(3)).”Member’s explanatory statement
This amendment is consequential on Baroness Kidron’s amendment after Clause 117 which would add a new Clause imposing express duties on OFCOM in certain cases where a child has died.
My Lords, first, I want to recognise the bravery of the families of Olly, Breck, Molly, Frankie and Sophie in campaigning for the amendments we are about to discuss. I also pay tribute to Mia, Archie, Isaac, Maia and Aime, whose families I met this morning on their way to the House. It is a great privilege to stand alongside them and witness their courage and dignity in the face of unimaginable grief. On behalf of myself, my co-signatories—the noble Lords, Lord Stevenson and Lord Clement-Jones, and the noble Baroness, Lady Morgan—and the huge number of Peers and MPs who have supported these amendments, I thank them for their work and the selflessness they have shown in their determination to ensure that other families do not suffer as they have.
This group includes Amendments 198, 199, 215 and 216, which, together, would create a pathway for coroners and, by extension, families to get access to information relevant to the death of a child from technology services. The amendments would put an end to the inhumane situation whereby coroners and families in crisis are forced to battle faceless corporations to determine whether a child’s engagement with a digital service contributed to their death. Bereaved families have a right to know what happened to their children, and coroners have a duty to ensure that lessons are learned and that those who have failed in their responsibilities are held accountable.
Since the Minister is going to be the bearer of good news this afternoon, I will take the time to make arguments for the amendments as they stand. I simply say that, while parents have been fighting for access to information, those same companies have continued to suggest friends, material and behaviours that drive children into places and spaces in which they are undermined, radicalised into despair and come to harm. In no other circumstance would it be acceptable to withhold relevant information from a court procedure. It is both immoral and a failure of justice if coroners cannot access and review all relevant evidence. For the families, it adds pain to heartbreak as they are unable to come to terms with what has happened because there is still so much that they do not know.
My Lords, some of the issues that we have been dealing with in this Bill are more abstract or generic harms, but here we are responding to a specific need of families in the UK who are facing the most awful of circumstances.
I want to recognise the noble Baroness, Lady Kidron, for her direct support for many of those families, and for her persistent efforts to use policy and the tools we have available to us here to improve the situation for families who, sadly, will face similar tragedies in future. I appreciate the time that she has spent with me in the spirit of finding workable solutions. It is an alliance that might seem improbable, given our respective responsibilities, which have sometimes placed us in publicly adversarial roles. However, one of the strengths of this Committee process is that it has allowed us to focus on what is important and to find that we have more in common than separates us. Nothing could be more important than the issue we are dealing with now.
I am pleased that it looks like we will be able to use this Bill to make some significant improvements in this area to address the challenges faced by those families, some of whom are here today, challenges which add to their already heart-wrenching distress. The first challenge these families face is to find someone at an online service who is willing and able to answer their questions about their loved one’s use of that platform. This question about contacts at online platforms is not limited to these cases but comes up in other areas.
As noble Lords will know, I used to work for Facebook, where I was often contacted by all sorts of Governments asking me to find people in companies, often smaller companies, concerning very serious issues such as terrorism. Even when they were dealing with the distribution of terrorist content, they would find it very challenging. There is a generic problem around getting hold of people at platforms. A real strength of the Online Safety Bill is that it will necessarily require Ofcom to develop contacts at all online services that offer user-to-user and search services to people in the UK. The Government estimate that 25,000 entities are involved. We are talking about Ofcom building a comprehensive database of pretty much any service that matters to people in the UK.
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Having established contact, which we hope will happen in a more orderly way in future with the support from Ofcom, the second challenge lies in the decision about what information a service is willing and able to disclose to assist an inquiry. The frustration that services are unwilling, or declare themselves unable, to disclose the information required has been very widely publicised. We see a potential answer in this Bill, in that it grants Ofcom these new powers to order services to disclose a wide range of information under the clauses listed in Chapter 4. It seems entirely sensible to use these new powers for these specific purposes. Services will understand that they have to respond to information requests. As the noble Baroness pointed out, this will not be discretionary: they will be under serious sanction if they refuse, without good reason, to respond to an information request. It seems to me that this will make the decision quite straightforward for many services and, if they seek legal advice, as is often the case, this will come back to say that they do not have a choice and must disclose.
One way to think about the overall effect of the Bill is that it is replacing discretionary decision-making by online services with a body of instructions from the British state, via our regulator, Ofcom, on how we expect decisions to be made in relation to safety. When platforms have received requests from bereaved families to date, they have been exercising their own discretion, weighing up their views on the potential benefits and harms of certain forms of disclosure. I have been involved in those: a platform weighs up the decision; it is not carried out by any third party. With the information notice process that we expect to be coming forward, the decision about what should be disclosed in which circumstances moves from the platforms to coroners and Ofcom acting on behalf of the British state and affected families. Frankly, if I still worked for an online service, I would welcome this shift of responsibility for these decisions. I hope that we will see the new process—which, as I understand, will be introduced in later amendments—work smoothly, with good co-operation from regulated services.
There are still two provisos to that, which are worth noting at this stage. The noble Baroness, Lady Kidron, has already touched on these, but we should put them on record because they will need to be answered as we get into the debate on the government amendments.
First, we need to ensure that any process for data disclosure has the right checks and balances in place to ensure that it is not used inappropriately. I am certainly very confident in Ofcom’s propriety as a regulator and in the overall legal framework that we have in the Bill and in the Human Rights Act that underpins that, which creates an overall framework for issues such as people’s privacy rights. Everything has to work within that framework. But we should keep stressing the safeguards in place, because these mean that services can feel very safe about complying with orders under the Bill and that it will not involve breaching other rights that they have to users. This is a broader question: there are orders that come from other Governments, shall we say, for disclosure of data that certainly would be problematic. If we are going to order companies to disclose data, we need to make absolutely clear that all of those safeguards are in place for them to feel confident to do so.
Secondly, it must also address any actual or perceived conflicts of law. The noble Baroness touched on this. I particularly note that we have the Data Protection Act and that it is very clear in data protection law that you should not be holding personal data without good reason, so platforms have policies in place that they believe that they are instructed to follow by the Information Commissioner’s Office, for example to delete data from accounts that are no longer in use. We need to think about a process for data preservation in particular circumstances. That already works well in law enforcement: for example, there is a well-established process when somebody is accused of a crime to request data preservation of information relevant to that crime. We need to think about how that principle may apply here and ensure that it is in place. I do not think that the companies are being awkward in this case: they are being told by the data protection regulator to do one thing, and if we are now going to tell them to make an exception, we need to give them a legal basis on which to do that.
There is also the point of potential conflicts with law in other regimes, especially companies outside the UK. The noble Baroness mentioned the Stored Communications Act, which is quite significant for US companies, but there are similar measures in place in other countries—we cannot put companies in a position where they have to choose whose law to break. It should not be beyond our wit to work with a friendly Government such as that of the United States to say, “We all understand that we are trying to help bereaved families here, and we have pieces of law in place; how do we make those work together so that they do not create frustration, which none of us wants them to do and is not what they are intended for?”
I repeat my offer to help if there is anything I can do to try to unblock some of this, work on the detail and make sure that this is effective. This is an area where we could make significant progress and certainly move on from a situation that has frustrated everybody and been unacceptable to date.
My Lords, I am very pleased to support the noble Baroness, Lady Kidron, with these amendments. I also welcome the fact that we have, I hope, reached the final day of this stage of the Bill, which means that it is getting closer to becoming an Act of Parliament. The amendments to these clauses are a very good example of why the Bill needs to become an Act sooner rather than later.
As we heard during our earlier debates, social media platforms have for far too long avoided taking responsibility for the countless harms that children face on their services. We have, of course, heard about Molly Russell’s tragic death and heard from the coroner’s inquest report that it was on Instagram that Molly viewed some of the most disturbing posts. Despite this, at the inquest Meta’s head of health and well-being policy shied away from taking blame and claimed that the posts which the coroner said contributed to Molly’s death
“in a more than minimal way”
were, in Meta’s words, “safe”. Molly’s family and others have to go through the unthinkable when they lose their child in such a manner. Their lives can be made so much harder when they attempt to access their child’s social media accounts and activities only to be denied by the platforms.
The noble Baroness’s various amendments are not only sensible but absolutely the right thing to do. In many ways, it is a great tragedy that we have had to wait for this piece of primary legislation for these companies to start being compelled and told. I understand what the noble Lord, Lord Allan, very rationally said—companies should very much welcome these amendments—but it is a great shame that often they have not behaved better in these circumstances previously.
There is perhaps no point going into the details, because we want to hear from the Minister about what the Government will propose. I welcome the fact that the Government have engaged early-ish on these amendments and on these matters.
My Lords, I strongly support this group of amendments in the name of the noble Baroness, Lady Kidron, and other noble Lords. I, too, acknowledge the campaign group Bereaved Families for Online Safety, which has worked so closely with the noble Baroness, Lady Kidron, 5Rights and the NSPCC to bring these essential changes forward.
Where a child has died, sadly, and social media is thought to have played a part, families and coroners have faced years of stonewalling, often never managing to access data or information relevant to that death; this adds greatly to their grief and delays the finding of some kind of closure. We must never again see a family treated as Molly Russell’s family was treated, when it took five years of campaigning to get partial sight of material that the coroner found so distressing that he concluded that it contributed to her death in a more than minimal way; nor can it be acceptable for a company to refuse to co-operate, as in the case of Frankie Thomas, where Wattpad failed to provide the material requested by the coroner on the grounds that it is not based within the UK’s jurisdiction. With the threat of a fine of only £1,000 to face, companies feel little need to comply. These amendments would mean that tech companies now had to comply with Ofcom’s information notices or face a fine of up to 10% of their global revenue.
Coroners’ powers must be strengthened by giving Ofcom the duty and power to require relevant information from companies in cases where there is reason to suspect that a regulated service provider may hold information relevant to a child’s death. Companies may not want to face up to the role they have played in the death of a child by their irresponsible recommending and pushing of violent, sexual, depressive and pro-suicide material through algorithmic design, but they need to be made to answer when requested by a coroner on behalf of a bereaved family.
Baroness Newlove (Con)
My Lords, I support the amendments standing in the name of the noble Baroness, Lady Kidron, and other noble Lords. I have listened to noble Lords, so I am not going to repeat what has been said. I pay my respects to the family because as someone who is still going through the criminal justice system, I absolutely feel the anguish of these families.
While we are talking about a digital platform, we are also talking about human lives, and that is what we have to remain focused on. I am not a techno, and all these words in the digital world sound like a lot of Japanese to me. I am not ignorant about what noble Lords are saying, but it has made me realise that, while we have gone forward, for a lot of people and families it still feels like wading through jelly.
I want to speak about how the families will feel and how they will connect through all of these gateways to get what they should quite rightly have about their loved ones’ lives and about what has been said about them online. Surely the platforms should have a duty of care, then perhaps we would not be here discussing these amendments. Noble Lords have spoken about the technical aspects of these amendments. By that, we mean data and the role of the coroner. As a former victims’ commissioner, I had many discussions with the Chief Coroner about other victims who have suffered loss as well. I think that people do not understand how victims’ families feel in the courtroom because you feel alone, and I imagine there are more legal aspects from these mega companies than these families can afford.
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I am grateful to the Government for agreeing to bring forward on Report amendments that will go a very long way towards closing the loopholes that allow companies to refuse coroners’ demands and ignore parents’ entreaties. The Government’s approach is somewhat different from that in front of us, but it covers the same ground. These amendments are the result of the considerable efforts of Ministers and officials from DSIT and the Ministry of Justice, with the invaluable support of the right honourable Sajid Javid MP. I wish to note on the record the leadership of the Secretary of State, who is currently on leave, and the Minister here, the noble Lord, Lord Parkinson.
The Government’s amendments will create an express power for Ofcom to require information from services about a deceased child user’s online activity following the receipt of a Schedule 5 request from a coroner. This will vastly increase the reach and power of that coroner. Information that Ofcom can request from regulated companies under the Online Safety Bill is extremely wide and includes detailed data on what is recommended; the amount of time the child spent on the service when they accessed it; their user journey; what content they liked, shared, rewatched, paused and reported; and whether other users raised red flags about the child’s safety or well-being before their death.
Information notices prompted by a Schedule 5 request from a coroner will be backed by Ofcom’s full enforcement powers and will apply to all regulated companies. If a service fails to comply, it may be subject to enforcement action, including senior management liability and fines of up to £18 million or 10% of global turnover—vastly different from the maximum fine of £1,000 under the Coroners and Justice Act 2009. Moreover, these amendments will give coroners access to Ofcom’s expertise and understanding of how online services work and of online services’ safety duties to children. Also, there will be provisions empowering Ofcom to share information freely to assist coroners in their inquiries. Companies must provide a dedicated means of communication to manage requests for information from bereaved parents and provide written responses to those requests. I look forward to the Minister setting out that these will be operated by a team of experts and backed up by Ofcom in ensuring that the communication is adequate, timely and not obstructive. Importantly, if the communication is not adequate, bereaved families will be able to notify Ofcom.
There are a small number of outstanding questions. We remain concerned that only larger companies will be required to set out their policies on disclosure. Sadly, children are often coerced and nudged into smaller sites that have less robust safety mechanisms. Small is not safe. A further issue is to ensure that a coroner is able, via a Schedule 5 notice given to Ofcom, to compel senior management to appear at an inquest. This is a crucial ask of the legal community, who battled and failed to get companies to attend inquests, notably Wattpad at the Frankie Thomas inquest and Snap Inc at Molly Russell’s inquest. Can the Minister undertake to close these gaps before Report?
A number of matters sit outside the scope of the Online Safety Bill. I am particularly grateful to the Secretary of State for committing in writing to further work beyond the Bill to ensure that the UK’s approach is comprehensive and watertight. The Government will be exploring ways in which the Data Protection and Digital Information (No. 2) Bill can support and complement these provisions, including the potential for a code that requires data preservation if a parent or enforcement officer contacts a helpline or if there is constructive knowledge, such as when a death has been widely reported, even before a Schedule 5 notice has been delivered.
The Government are engaging with the Chief Coroner to provide training in order to ensure that coroners have the knowledge they need to carry out inquests where children’s engagement with online services is a possible factor in their death. I am concerned about the funding of this element of the Government’s plans and urge the Minister to indicate whether this could be part of Ofcom’s literacy duties and therefore benefit from the levy. Possibly most importantly, the Secretary of State has undertaken to approach the US Government to ensure that coroners can review private messages that fall outside the scope of this Bill in cases where a child’s death is being investigated. I am grateful to the noble Lord, Lord Allan, for his support in articulating the issue, and accept the invitation to work alongside the department to achieve this.
There are only two further things to say. First, delivery is in the drafting, and I hope that when he responds, the Minister will assure the House that we will see the proposed amendments well before Report so that we can ensure that this works as we have all agreed. Secondly, the Government are now looking very carefully at other amendments which deal with prevention of harm in one way or another. I share the gratitude of Bereaved Parents for Online Safety for the work that has gone into this set of amendments. However, we want to see safety by design; a comprehensive list of harms to children in the Bill, including harms caused or amplified by the design of service; principles for age assurance which ensure that the systems put in place by regulated services are measurable, secure and fit for purpose; and a proper complaints service, so that children have somewhere to turn when things go wrong. What we have been promised is a radical change of status for the coroner and for the bereaved families. What we want is fewer dead children. I beg to move.
Primarily, these contacts will be safety focused, as their main responsibility will be to provide Ofcom with evidence that the service is meeting its duties of care under the Bill, so again, they will have the right people in the right companies on their database in future. Importantly, Ofcom will have a team of several hundred people, paid for by a levy on these regulated services, to manage the contacts at the right level. We can expect that, certainly for the larger services, there may be a team of several people at Ofcom dedicated to working with them, whereas for the smaller services it may be a pooled arrangement whereby one Ofcom staff member deals with a group. However, in all cases there will be someone at the regulator with a responsibility for liaising with those companies. We do not expect Ofcom to use those contacts to resolve questions raised by individuals in the UK as a matter of course, but it makes sense to make this channel available where there is a relatively small number of highly impactful cases such as we are dealing with here.
The amendments would force platforms to comply with coroners in investigations into the death of a child, have a named senior manager in relation to inquests and allow easier access to a child’s social media account for bereaved families. We will have to see what the Government’s amendments do to reflect that. One of the areas that the noble Baroness said had perhaps not been buttoned down is the responsibility for a named senior manager in relation to an inquest. This is requiring that:
“If Ofcom has issued a notice to a service provider they must name a senior manager responsible for providing material on behalf of the service and to inform that individual of the consequences for not complying”.
The noble Lord, Lord Allan, set out very clearly why having a named contact in these companies is important. Bereaved families find it difficult, if not impossible, to make contact with tech companies: they get lost in the automated systems and, if they are able to access a human being, they are told that the company cannot or will not give that information. We know that different coroners have had widely differing experiences getting information from the social media platforms, some refusing altogether and others obfuscating. Only a couple of companies have co-operated fully, and in only one or two instances. Creating a single point of contact, who understands the law—which, as we have just heard, is not necessarily always straightforward, particularly if it involves different jurisdictions—understands what is technically feasible and has the authority and powers afforded to the regulator will ensure a swifter, more equitable and less distressing process.
I have really set this out because we will obviously hear what the Minister will set out, but if it does not reflect having a named senior manager, then I hope very much that we are able to discuss that between this and the next stage.
Social media platforms have a responsibility to keep their users safe. When they fail, they should be obligated to co-operate with families and investigations, rather than seeking to evade them. Seeing what their child was viewing online before their death will not bring that child back, but it will help families on their journey towards understanding what their young person was going through, and towards seeking justice. Likewise, ensuring that platforms comply with inquests will help to ease the considerable strain on bereaved families. I urge noble Lords to support these amendments or to listen to what the Government say. Hopefully, we can come up with a combined effort to put an end to the agony that these families have been through.
Amendment 215 requires a named senior manager, a concept that I am thankful is already enshrined in the Bill, to receive and respond to an information notice from Ofcom to ensure that a child’s information, including their interactions and behaviour and the actions of the regulated service provider, is preserved and made available. This could make a profound difference to how families will be treated by these platforms in future. Too often in the past, they have been evasive and unco-operative, adding greatly to the inconsolable grief of such bereaved parents. As Molly Russell's father Ian said:
“Having lived through Molly’s extended inquest, we think it is important that in future, after the death of a child, authorities’ access to data becomes … a matter of course”
and
“A more compassionate, efficient and speedy process”.
I was going to ask the Government to accept these amendments but, having listened to the noble Baroness, Lady Kidron, I am looking forward to their proposals. We must ensure that a more humane route for families and coroners to access data relating to the death of a child is at last available in law.