Relevant documents: 28th and 38th Reports from the Delegated Powers Committee, 15th Report from the Constitution Committee. Scottish and Welsh Legislative Consent granted.
186A: Before Clause 64, insert the following new Clause—
“Terms of service as a contract
The terms of service under which a Category 1 service is provided to a person who is a consumer for the purposes of the Consumer Rights Act 2015 must be treated as being a contract for a trader to provide a service to a consumer.”Member’s explanatory statement
This purpose of this amendment is to ensure that providers’ terms of service are treated as consumer contracts, and to give users recourse to the remedies under the Consumer Rights Act 2015 in the event of breach.
My Lords, in speaking to my Amendment 186A, I hope that noble Lords will forgive me for not speaking in detail to the many other amendments in this group correctly branded “miscellaneous” by those who compile our lists for us. Many of them are minor and technical, especially the government amendments. However, that is not true of all of them: Amendment 253 in the name of the noble Lord, Lord Clement-Jones, is a substantial amendment relating to regulatory co-operation, while Amendment 275A, in the name of the noble Baroness, Lady Finlay of Llandaff, is also of some interest, relating to the reports that Ofcom is being asked to produce on technological developments.
Nor is Amendment 191A lacking in importance and substance, although—I hope I will be forgiven for saying this, not in a snarky sort of way—for those of us who are worried about the enormous powers being given to Ofcom as a result of the Bill, the idea that it should be required by statute to give guidance to coroners, who are part of the courts system, seems to me strange and worth examining more closely. There might be a more seemly way of achieving the effect that the noble Baroness, Lady Kidron, understandably wants to achieve.
I turn to my own Amendment 186A, which, I hope, ought to be relatively straightforward. It concerns the terms of service of a contract with a category 1 service provider, and it is intended to improve the rights that consumers or users of that service have. It is the case that the Government want users of those services to have the ability to enforce their rights under contract against the service providers, as set out in Clause 65, and this is entirely welcome. However, it is well known that bringing claims in contract can be an expensive and onerous business, as I have pointed out in the past, particularly when the service is provided on the one-sided terms of the service provider—often, of course, drafted under the legal system of a foreign jurisdiction.
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Parliament recognised this difficulty when it enacted the Consumer Rights Act 2015. Its purpose was to make it easier for consumers to deal fairly with traders and get redress when they are treated unfairly. However, category 1 providers such as Twitter and Facebook are not governed by the Consumer Rights Act. In the language of the Act, they do not supply digital content
“for a price paid by the consumer”,
a requirement of the Act. So the purpose of Clause 65 is therefore only partially achieved in the Bill as it stands; a key element in enforcing consumer rights is missing.
The European Union, to its credit, rectified this oversight in its directive about modernising consumer law in 2019. It provides that a consumer who receives content or a service in return for providing their personal data should be in the same position as the consumer who pays a price, and the same consumer protections apply to both. The effect of my amendment is that we would follow suit—if we are serious about protecting and empowering users, that is what we should do. We should do away with the arbitrary fiction that category 1 users are not consumers deserving of protection simply because they do not pay a monetary price.
I have heard it said about bringing up this matter on Report, when it should have been brought up in Committee—as I admit that it should—that it is a little too late perhaps for the Bill team and the Minister to absorb this proposal. However, I do not fully accept that, since the Third Reading of the Bill has been set for 4 September, which gives the Government ample time over the summer to get all their ducks lined up in a row.
I should have thought that this amendment would command support on all sides of the House and from all noble Lords who have participated in this Bill so far. I am hoping, although I have had no indication from my noble friend the Minister whether he is going to accept this amendment, that he would feel that it was a relatively straightforward thing to do, entirely in line with his purpose and something that would strengthen the Bill considerably. I beg to move.
My Lords, I shall speak to my Amendment 275A in this group. It would place a duty on Ofcom to report annually on areas where our legal codes need clarification and revision to remain up to date as new technologies emerge—and that is to cover technologies, some of which we have not even thought of yet.
Government Amendments 206 and 209 revealed the need for an amendment to the Bill and how it would operate, as they clarify that reference to pornographic content in the Bill includes content created by a bot. However, emerging technologies will need constant scrutiny.
As the noble Lord, Lord Clement-Jones, asked, what about provider content, which forms the background to the user interaction and may include many harms. For example, would a game backdrop that includes anti-Semitic slurs, a concentration camp, a sex shop or a Ku Klux Klan rally be caught by the Bill?
The Minister confirmed that “content” refers to anything communicated by means of an internet service and the encounter includes any content that individuals read, view, hear or otherwise experience, making providers liable for the content that they publish. Is this liable under civil, regulatory or criminal law?
As Schedule 1 goes to some lengths to exempt some service-to-provider content, can the Minister for the record provide chapter and verse, as requested by the noble Lord, Lord Clement-Jones, on provider liability and, in particular, confirm whether such content would be dealt with by the Part 3 duties under the online safety regime or whether users would have to rely on similar law for claims at their own expense through the courts or the police carry the burden of further enforcement?
Last week, the Minister confirmed that “functionality” captures any feature enabling interactions of any description between service users, but are avatars or objects created by the provider of a service, not by an individual user, in scope and therefore subject to risk assessments and their mitigation requirements? If so, will these functionalities also be added to user empowerment tools, enabling users to opt out of exposure to them, or will they be caught only by child safety duties? Are environments provided by a service provider, such as a backdrop to immersive environments, in scope through the definition of “functionality”, “content” or both? When this is provider content and not user-generated content, will this still hold true?
My Lords, I will speak to Amendment 191A in my name. I also support Amendment 186A in the name of the noble Lord, Lord Moylan, Amendment 253 in the name of the noble Lord, Lord Clement-Jones, and Amendment 275A in the name of my noble friend Lady Finlay. I hope that my words will provide a certain level of reassurance to the noble Lord, Lord Moylan.
In Committee and on Report, the question was raised as to how to support the coronial system with information, education and professional development to keep pace with the impact of the fast-changing digital world. I very much welcome the Chief Coroner’s commitment to professional development for coroners but, as the Minister said, this is subject to funding. While it is right that the duty falls to the Chief Coroner to honour the independence and expert knowledge associated with his roles, this amendment seeks to support his duties with written guidance from Ofcom, which has no such funding issue since its work will be supported by a levy on regulated companies—a levy that I argue could usefully and desirably contribute to the new duties that benefit coroners and bereaved parents.
The role of a coroner is fundamental. They must know what preliminary questions to ask and how to triage the possibility that a child’s digital life is relevant. They must know that Ofcom is there as a resource and ally and how to activate its powers and support. They must know what to ask Ofcom for, how to analyse information they receive and what follow-up questions might be needed. Importantly, they must feel confident in making a determination and describing the way in which the use of a regulated service has contributed to a child’s death, in the case that that is indeed their finding. They must be able to identify learnings that might prevent similar tragedies happening in the future. Moreover, much of the research and information that Ofcom will gather in the course of its other duties could be usefully directed at coroners. All Amendment 191A would do is add to the list of reports that Ofcom has to produce with these issues in mind. In doing so, it would do the Chief Coroner the service of contributing to his own needs and plans for professional development.
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I do not think we have time to wait for the report that my noble friend seeks. This is the long-awaited Online Safety Bill. We have been warned by the inventors of neural networks and leaders in AI and alternate realities that we are at a crossroads between human and machine. It is incumbent on the Government to ensure that the Bill is fit not only for the past but for the future. In order to do that, they need to look at the definitions—as they did so admirably in Part 5—but also at some of the exceptions they have carved out so that they can say that the Bill truly ends the era of exceptionality in which harms online are treated differently from those offline. My view is that the amendment in the name of my noble friend Lady Finlay should not be necessary at this stage. But, if the Minister cannot confirm that it is already covered, perhaps he will indicate his willingness to accept the amendment.
My Lords, I will make some arguments in favour of Amendment 191A, in the name of the noble Baroness, Lady Kidron, and inject some notes of caution around Amendment 186A.
On Amendment 191A, it has been my experience that when people frequently investigate something that has happened on online services, they do it well, and well-formed requests are critical to making this work effectively. This was the case with law enforcement: when an individual police officer is investigating something online for the first time, they often ask the wrong questions. They do not understand what they can get and what they cannot get. It is like everything in life: the more you do it, the better you get at it.
Fortunately, in a sense, most coroners will only very occasionally have to deal with these awful circumstances where they need data related to the death of a child. At that point, they are going to be very dependent on Ofcom—which will be dealing with the companies day in and day out across a range of issues—for its expertise. Therefore, it makes absolute sense that Ofcom’s expertise should be distributed widely and that coroners—at the point where they need to access this information—should be able to rely on that. So Amendment 191A is very well intended and, from a practical point of view, very necessary if we are going to make this new system work as I know the noble Baroness, Lady Kidron, and I would like to see it work.
On Amendment 186A around consumer law, I can see the attraction of this, as well as some of the read-across from the United States. A lot of the enforcement against online platforms in the US takes place through the Federal Trade Commission precisely in this area of consumer law and looking at unfair and deceptive practices. I can see the attraction of seeking to align with European Union law, as the noble Lord, Lord Moylan, argued we should be doing with respect to consumer law. However, I think this would be much better dealt with in the context of the digital markets Bill and it would be a mistake to squeeze it in here. My reasons for this are about both process and substance.
Does the noble Lord accept that that is already a possibility? You can bring an action in contract law against them on the grounds that it is an unfair contract. This could happen already. It is as if the noble Lord is not aware that the possibility of individual action for breach of contract is already built into Clause 65. This measure simply supplements it.
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All this points to a deeper issue. Internet services have become more complex and vivid, with extremely realistic avatars and objects indistinguishable from people and objects in the real world. This amendment avoids focusing on negatives associated with AI and new technologies but tries to ensure that the online world is as safe as the offline world should be. It is worth noting that Interpol is already investigating how to deal with criminals in the metaverse and anticipating crimes against children, data theft, money laundering, fraud and counterfeit, ransomware, phishing, sexual assault and harassment, among other things. Many of these behaviours operate in grey areas of the law where it is not clear whether legal definitions extend to the metaverse.
Ofcom has an enormous task ahead, but it is best placed to consider the law’s relationship to new technological developments and to inform Parliament. Updating our laws through the mechanisms proposed in Amendment 275A will provide clarity to the courts, judges, police and prosecution service. I urge the Minister to provide as full an answer as possible to the many questions I have posed. I am grateful to him for all the work he has been doing. If he cannot accept my amendment as worded, will he provide an assurance that he will return to this with a government amendment at Third Reading?
I turn to Amendment 186A in the name of the noble Lord, Lord Moylan, who makes a very significant point in bringing it forward. Enormous effort goes into creating an aura of exceptionality for the tech sector, allowing it to avoid laws and regulations that routinely apply to other sectors. These are businesses that benefit from our laws, such as intellectual copyright or international tax law. However, they have negotiated a privileged position in which they have privatised the benefits of our attention and data while outsourcing most of the costs of their service to the public purse or, indeed, their users.
Terms and conditions are a way in which a company enters into a clear agreement with its users, who then “pay” for access with their attention and their data: two of the most valuable commodities in today’s digital society. I am very sympathetic to the noble Lord’s wish to reframe people, both adults and children, from a series of euphemisms that the sector employs—such as “users”, “community members”, “creators” or “participants”—to acknowledge their status as consumers who have rights and, in particular, the right to expect the product they use to be safe and for providers to be held accountable if it is not. I join the noble Lord in asserting that there are now six weeks before Third Reading. This is a very valuable suggestion that is worthy of government attention.
Amendment 253 in the name of the noble Lord, Lord Clement-Jones, puts forward a very strong recommendation of the pre-legislative committee. We were a bit bewildered and surprised that it was not taken up at the time, so I will be interested to hear what argument the Minister makes to exclude it, if indeed he does so. I say to him that I have already experienced the frustration of being bumped from one regulator to another. Although my time as an individual or the organisational time of a charity is minor in the picture we are discussing, it is costly in time and resources. I point to the time, resources and potential effectiveness of the regulatory regime. However well oiled and well funded the regulatory regime of the Online Safety Bill is, I do not think it will be as well oiled and well funded as those that it seeks to regulate.
I make it clear that I accept the arguments of not wanting to create a super-regulator or slow down or confuse existing regulators which each have their own responsibilities, but I feel that the noble Lord, Lord Clement-Jones, has approached this with more of a belt-and-braces approach rather than a whole realignment of regulators. He simply seeks to make it explicit that regulators can, should and do have a legal basis on which to work singularly or together when it suits them. As I indicated earlier, I cannot quite understand why that would not be desirable.
Finally, in what is truly a miscellaneous group, I will refer to the amendment in the name of my noble friend Lady Finlay. I support the intent of this amendment and sincerely hope that the Minister will be able to reassure us that this is already in the Bill and will be done by Ofcom under one duty or another. I hope that he will be able to point to something that includes this. I thank my noble friend for raising it, as it harks back to an amendment in Committee in my name that sought to establish that content deemed harmful in one format would be deemed harmful in all formats—whether synthetic, such as AI, the metaverse or augmented reality. As my noble friend alluded to, it also speaks to the debate we had last week in relation to the amendment from the noble Lord, Lord Clement-Jones, about provider content in the metaverse.
In terms of process, we have not done the impact assessment on this. It is quite a major change, for two reasons. First, it could potentially have a huge impact in terms of legal costs and the way businesses will have to deal with that—although I know nobody is going to get too upset if the impact assessment says there will be a significant increase in legal costs for category 1 companies. However, we should at least flesh these things out when we are making regulations and have them in an impact assessment before going ahead and doing something that would have a material impact.
Secondly in process terms, there are some really interesting questions about the way this might affect the market. The consumer law we have does exclude services that are offered for free, because so much of consumer law is about saying, “If the goods are not delivered correctly, you get your money back”. With free services, we are clearly dealing with a different model, so the notion that we have a law that is geared towards making sure you either get the goods or you get the money may not be the best fit. To try to shoehorn in these free-at-the-point-of-use services may not be the best way to do it, even from a markets and consumer point of view. Taking our time to think about how to get this right would make sense.
More fundamentally, in terms of the substance, we need to recognise that, as a result of the Online Safety Bill, Ofcom will be requiring regulated services to rewrite their terms of service in quite a lot of detail. We see this throughout the Bill. We are going to have to do all sorts of things—we will debate other amendments in this area today—to make sure that their terms of service are conformant with what we want from them in this Bill. They are going to have to redo their complaints and redress mechanisms. All of this is going to have to change and Ofcom is going to be the regulator that tells them how to do it; that is what we are asking Ofcom to tell them to do.
My fundamental concern here, if we introduce another element, is that there is a whole different structure under consumer law where you might go to local trading standards or the CMA, or you might launch a private action. In many cases, this may overlap. The overlap is where consumer law states that goods must be provided with reasonable care and skill and in a reasonable time. That sounds great, but it is also what the Online Safety Bill is going to be doing. We do not want consumer law saying, “You need to write your terms of service this way and handle complaints this way”, and then Ofcom coming along and saying, “No, you must write your terms of service that way and handle complaints that way”. We will end up in a mess. So I just think that, from a practical point of view, we should be very focused in this Bill on getting all of this right from an Online Safety Bill point of view, and very cautious about introducing another element.
Perhaps one of the attractions of the consumer law point for those who support the amendment is that it says, “Your terms must be fair”. It is the US model; you cannot have unfair terms. Again, I can imagine a scenario in which somebody goes to court and tries to get the terms struck down because they are unfair but the platform says, “They’re the terms Ofcom told me to write. Sort this out, please, because Ofcom is saying I need to do this but the courts are now saying the thing I did was unfair because somebody feels that they were badly treated”.