Online Safety (List of Overseas Regulators) Regulations 2024

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Online Safety (List of Overseas Regulators) Regulations 2024.

Relevant document: 6th Report from the Secondary Legislation Scrutiny Committee

My Lords, these draft regulations were laid before the House on 28 November last year. I am delighted that our ground-breaking online safety legislation is now on the statute book as the Online Safety Act 2023. I am sincerely grateful to noble Lords for their campaigning and collaboration throughout its passage. It is crucial that the Act is fully operational as quickly as possible; the Government are working at pace to deliver on this ambition. The statutory instrument being debated today is one of several that will enable the implementation of the Act by Ofcom.

This statutory instrument concerns Ofcom’s co-operation with and disclosure of information to overseas online safety regulators under Section 114 of the Act. The service providers that are regulated under the Act are global in nature. It is therefore vital that Ofcom can co-operate and share information with its regulatory counterparts in other jurisdictions to support co-ordinated international online safety regulation. In certain circumstances, it may be appropriate for Ofcom to support overseas regulators in carrying out their regulatory functions. For example, it may be beneficial for Ofcom to share information it holds to inform supervisory activity or an investigation being carried out by an overseas regulator. This could support successful enforcement action overseas, which could in turn have direct or indirect benefits for UK users such as preventing malign actors disseminating illegal content on regulated services.

In addition, international collaboration will increase the efficiency of online safety regulation. Ofcom and its international counterparts will be able to gather extensive information about regulated service providers in the carrying out of their functions. In some instances, it is likely to be more efficient for regulators to gather information directly where that information has already been gathered by an overseas regulator. As such, international regulatory co-operation and co-ordination are likely to reduce the regulatory burden on both international regulators and regulated service providers.

It is for these reasons that Section 114 of the Act builds on the existing information gateways available to Ofcom under the Communications Act 2003 by permitting Ofcom to co-operate with an overseas regulator for specified purposes. This includes powers to disclose online safety information to a regulator, either for the purposes of facilitating the overseas regulator in exercising its online regulatory functions or for criminal investigations or proceedings related to the overseas regulator’s online regulatory functions. In the absence of Section 114, Ofcom could not share information for these specified purposes under the existing information gateway under the Communications Act 2003. Under Section 1(3) of the Communications Act, Ofcom can share information only for the purpose of carrying out its functions, subject to the general restrictions on the disclosure of information under Section 393 of that Act.

My Lords, I thank the Minister for his introduction. We all welcome the fact that the Bill is now an Act, of course. In a sense, these regulations are the first swallow of spring. We have many more affirmative SIs to come, I have no doubt, along with the codes of conduct that will eventually come to us in their final form. Like the Minister, I very much hope that we will proceed at speed in how we implement the terms of the Act.

Although this SI looks quite narrow in what it is about, it raises the whole question of co-operation between regulators. It is not just going to be about Ofcom helping overseas regulators, as set out in the regulations, in what they do; obviously, the Communications Act provisions will be important as well. It would be useful if the Minister could give us an idea of the areas of co-operation between the regulators that he thinks would be particularly fruitful. For instance, relationships with the Irish regulator will be extremely important in understanding how the DSA is working for it. How might its redress mechanism work? The DSA has explicit redress mechanisms under it whereas we are going to be working towards that in future; that is quite a long way away.

As the Minister will recall, other aspects are still somewhat inchoate under the Act. There is the question of research, which is an important area. How is that working? How are the other regulators seeing it operate? There is also the app store aspect, the other area of the Act that is not quite there in the way that its other parts are. It would be useful if the Minister could give us an idea of the areas that Ofcom will be working on.

I very much welcome the Minister’s assurances about the use of personal data and the kind of information that will be available. I assume that this will be of some importance, and that these case studies will involve some of the category 1 platforms to be discussed between the regulators. They will be helpful in making sure that, on an international basis, we see conformity by these large platforms to the kinds of regulation that are being installed. Does the Minister have an idea about the scale of the exchange of information that will be required? Clearly, it will require some resource by Ofcom in making security absolutely certain and being able to deliver on the assurances that the Minister has given.

My Lords, I join the noble Lord, Lord Clement-Jones, in welcoming this SI, and I thank the Minister for his kind comments about the work that went into the Bill. I share with him our pleasure that it is now in force and up and running; this instrument is proof positive that it is indeed so. Like the noble Lord, Lord Clement-Jones, I have many questions about what is happening, but certainly no objections to what is proposed.

The helpful Explanatory Memorandum explains that the context for this instrument is

“the global nature of service providers”

and how they operate. In that sense, I recognise that there are some gaps as regards the areas from where difficulties and troubles might come. For instance, Poland and parts of the eastern European bloc are thought to be centres from which emanate quite a lot of damage and a certain amount of material that is almost certainly illegal, yet I see no reference to any organisation—maybe there is none—that might be able to help Ofcom explore what is happening there. I am also concerned about Canada, because it hosts the biggest—I think—pornography company in the world. Again, I would have thought it would be helpful to Ofcom to be able to contact a collaborative organisation in Canada to work with, but I do not see one in the list.

That leads me on to another, related point. There is, and has been for some time, a network of likeminded organisations with which Ofcom has worked well in the past. There is a list of them on its website. Not all of them are in the Government’s proposals before us, and I wonder whether that in any way reflects a clash of views by the Government. Perhaps the Minster will comment on why we do not see Korea or South Africa, for instance. I would have thought that at least those with which Ofcom has a good working relationship at the moment should have been close to appointment. Perhaps there is some sort of competition there or element that I am not aware of. Any light that could be shed on that would be helpful.

As ever, I thank noble Lords for their valuable contributions to this debate. Needless to say, it is vital that we recognise the global nature of regulated service providers under the Online Safety Act. This SI will ensure that Ofcom can co-operate and share online safety information with specified overseas regulators where appropriate.

As set out, we will review on an ongoing basis whether it is desirable and appropriate to add further overseas regulators to the list. That is an ongoing activity. I anticipate that, as more and more jurisdictions enter the online safety regulation business, we will see an acceleration of the rate at which they can join on the lines we have set out.

I will now respond to some of the specific questions raised in the debate. The noble Lord, Lord Clement-Jones, asked about the types of information that Ofcom might share using this mechanism. The Government anticipate Ofcom being able to share information and co-operate with other regulators, which will lead to international regulatory co-operation, which is likely to reduce the regulatory burden on Ofcom, as well as international counterparts—for example, in relation to duties that are quite similar between regulators, such as duties to deal with illegal content. I anticipate that being a particular focus of their co-operative activities.

Positive benefits may also result from Ofcom supporting overseas regulators in carrying out their online safety regulatory functions and co-operating with relevant criminal investigations or proceedings. That co-operation might address a source of harm for UK users—for example, preventing malign actors disseminating suicide and self-harm content on regulated services.

Regarding the scale of the exchange, Ofcom itself would have discretion as to the scale of the information sharing that takes place through these provisions. However, it is likely to be beneficial to both Ofcom and its regulatory counterparts to engage in information exchange of this nature.

My Lords, the Minister raised a very interesting point. He said “criteria”; I do not think we have quite heard what those criteria are. That would be very interesting so that we can gauge for the future whether the possibilities that the noble Lord, Lord Stevenson, raised are real possibilities.

Indeed. Perhaps noble Lords will forgive me if I restate “criteria” as “factors considered”, because they are less algorithmic in that sense. Those factors considered would have been an existing relationship or ways of working together; bespoke online safety laws with a bespoke online safety regulator designated to those laws; regulatory autonomy, as I said; and, of course, a regulator within a jurisdiction committed to upholding human rights laws. I should add that the precise nature of any co-operation with any of the regulators on the list remains the decision of Ofcom and not the Government.

To address the question from the noble Lord, Lord Stevenson of Balmacara, about whether further statutory instruments will be required to remove overseas regulators from the list, I can confirm that this is the case. I hope that noble Lords agree with me on the importance of implementing the Online Safety Act as swiftly as possible. Therefore, I commend these regulations to the Committee.

Can I press the Minister on the point I made at the end? Will the generic approach to SIs in future be that they are offered to the standing and Select Committees of the two Houses before they are brought forward for consideration?

I will commit to going away and thinking about that one, because I feel that is a broader question about parliamentary oversight of regulation in general—if I have understood right.

It certainly can be taken that way, but actually it was a rather narrow question. His colleague, the noble Lord, Lord Parkinson, gave a statement at the Dispatch Box that the Government would use their maximum efforts to ensure that the two Select Committees—the DSIT Select Committee in the Commons and the Communications and Digital Committee in the Lords—would have the chance to look at draft SIs before they came forward. It is certainly more work, and we do not want that, but it would make it much easier for the Houses to be able to respond positively and accurately as they go forward.

I apologise to the noble Lord; I misunderstood. I very much see the value of this and will strain my sinews to deliver just that. Meanwhile, I commend these regulations to the Committee.

My Lords, before the Minister finally sits down, I want to put to him a very interesting question raised by my noble friend, who the Minister knows is extremely expert on these matters. Is this purely regulators for sovereign Governments or is there flexibility so that, for instance, a US state such as California, which has a particularly powerful governance regime and a strong regulator—it hits the criteria the Minister stated, other than being a sovereign country—could possibly be added to the list under these powers?

I think we would continue to entertain the possibility. That is why I slightly withdrew from the word “criteria” and went to “factors under consideration”—so that we would have the ability to adapt to such opportunities as might arise.

Motion agreed.