My Lords, I have the privilege to introduce this debate on the report of the Communications Committee. I do so as chairman of that committee. I am most grateful to the staff of our committee for their assistance in preparing the report: Theo Pembroke, the clerk; Niall Stewart and Theo Demolder, the policy analysts; and Rita Cohen, the committee assistant. They have turned their excellent minds to a whole range of complex issues and have given the committee first-rate advice. I also thank Professor Andrew Murray of the LSE, who provided in-depth and expert advice throughout this inquiry. Of course I thank the members of the committee, who have brought great expertise, experience and insight to this study of a complex and vitally important area of public policy. I declare an interest as a freelance consultant to Finsbury, a PR company, and I am an electoral commissioner.
The internet has enabled people and organisations to communicate, participate in society and democracy, and to transact business on a scale which would have been unimaginable only a couple of decades ago. However, regulation has not kept pace with the nature and scope of the digital services which now affect the lives that we live. A large volume of activity occurs online which would not be tolerated offline, including abuse and hateful speech. A handful of very large tech companies have come to dominate the environments in which they operate, buying up potential competitors. Self-regulation by online platforms is inconsistent, unaccountable and inadequate, so there is a compelling and urgent case for further regulation.
What is needed is not just more regulation but a new approach to regulation. More than a dozen UK regulators have a remit covering the digital world, but no single body has complete oversight. Regulation of the digital environment is fragmented, with gaps and overlaps. Problems are neglected until they become emergencies. Policymakers offer knee-jerk responses to media stories which may have unintended consequences. One of our witnesses described this as “regulation by outrage” and compared it to whack-a-mole. Regulation needs to be better co-ordinated, more consistent and in line with the public interest.
In our report we set out proposals to ensure that rights are protected online as they are offline while keeping the internet open to innovation and creativity, with a new culture of ethical behaviour embedded in the design of services. UK regulators have a world-class reputation and help to make the UK an attractive place for business. Tech companies should work with regulators to build well-considered, stable regulation which leads to consistent and predictable outcomes. There is a great opportunity for the UK to benefit from the soft power that comes with the international reputation of its regulators and for tech companies to be part of a programme of thoughtful, measured reform.
We had two key recommendations which shaped our report. First, we recommended the creation of a new digital authority to co-ordinate regulators and to identify and address gaps in regulation. Its board would consist of the chief executives of the relevant regulators with independent non-executives. It would work, crucially, with Government, Parliament and civil society to draw up priorities and work across its component bodies. It would continually assess the regulatory landscape and from time to time make recommendations on what new regulatory powers were needed.
7:37 pm
Lord Gordon of Strathblane (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Gilbert, and to have the first opportunity of thanking him for his chairmanship of our committee—a task he carried out with great skill, bearing in mind that the landscape we were surveying was changing as the report was being written. I also echo his thanks to the clerk of the committee, Theo Pembroke, and his team, and to our specialist adviser, Professor Andrew Murray.
I agree with the noble Lord, Lord Gilbert. The internet has already brought huge benefits to society: shopping, travelling, research and even managing one’s own health and fitness are easier. But in some ways, the awe and wonder at the things the internet could do for us that greeted its initial arrival seem to have worn off and to have been replaced by a degree of mistrust. The feeling is that somehow the internet is trying to control us; people imagine a Nineteen Eighty-Four scenario coming about. The feeling is that we are being manipulated by internet companies, that our data is being taken from us without our knowledge, misused and sold on, and that it has all got slightly out of control. Now there is a danger of legislation overreacting, and I hope the House will agree that we should adopt the same approach as the title of a seminar I intend to attend next week: How to Regulate the Internet Without Breaking It.
Undoubtedly in some countries, legislation is being proposed which would not only regulate the internet but stretch its resilience to breaking point. If we take, for example, the GDPR, as the noble Lord, Lord Gilbert, alluded to, it has not yet been fully implemented. We do not know how its interaction with the internet is going to work—we all hope it will work well.
Another reason why the gloss has come off the internet slightly is that it has made two big enemies in recent years. One is the advertising industry, which is extremely powerful and suddenly felt it was being rather defrauded by internet companies. They must make their peace with the advertising industry, and they will be set a high bar of improvement before they are let off the hook. The other body that has turned against the internet is the press, understandably. The press has largely been put out of business by the internet, so any misdemeanours by internet companies are not short of publicity in our newspapers.
As the report says in its very title, we live in a digital world, and it is important that we recognise that digital is part of that world and should not be treated separately from it. I would be interested, for example, in at some point having a debate on the Competition and Markets Authority inquiries. If it is inquiring into high street retailers, should it include Amazon? If it is inquiring into private transportation, should it include Uber? If it is inquiring into hospitality and hotels, should it include Airbnb? All of these are major players, yet are somehow classified as separate from the functions they exercise. That does not seem to make very much sense.
My Lords, I too want to say what a great honour—and, indeed, an education—it has been to serve on the Communications Select Committee for this House, and to have had a small say in the production of this important report. It is always a great joy to follow the noble Lord, Lord Gordon, and, indeed, the noble Lord, Lord Gilbert, who has chaired our committee with such wit and patience.
The Government have already committed themselves to making the United Kingdom the safest place in the world to be online. The ideas in this report explain that this does not necessarily require more regulation, but a different approach to regulation. It is not an exaggeration to say that this is one of the big moral challenges of our day. We need to get it right, especially for our children, for there are no longer two worlds, the online and offline, but the one digital environment that we all inhabit and that needs a set of principles to govern not just its oversight but its future development.
When I take my child to the park or cinema, go to a restaurant, travel by public transport, go shopping or, to escape the hustle and bustle of either this place or my day job, lie on the beach or snooze on a park bench in Parliament Square, those who own and manage these spaces have responsibilities to those of us who use them. These responsibilities are laid out in legislation overseen by various different bodies. However, behind it is the principle that we have responsibilities of mutual care and respect. If the salad Niçoise I order in the restaurant is dressed with bleach, or the film has no guidance about the appropriate age for a child to watch it, or the deck-chair I hire gives me splinters in unmentionable places—I will not say what I was going to say; I have to remember that I am a Bishop; with this outfit it should not be difficult—those who have responsibility for the space are liable.
We have a phrase for this in the English language: common sense. However, common sense is rooted in a thoughtful and developed moral tradition whereby we recognise our common humanity and resolve to live by an agreed set of principles and standards. The digital world cannot be exempt from this moral framework. Neither is it sufficient for regulators to mitigate and alleviate its worst excesses. Why should we have to ask Facebook to take things down? Would it not be better if they were never put up in the first place?
I too thank the noble Lord, Lord Gilbert, for his heroic chairing of this lengthy and complicated inquiry. I also thank the clerk, Theo Pembroke, and the specialist adviser, Professor Murray, for gathering a distinguished array of witnesses and shaping this report, of which I and other members of the committee are justifiably proud.
I want to concentrate my comments tonight on chapter 3, on ethical technology. The committee put some energy into understanding the role of algorithms in the digital world and the problems that might arise from unregulated artificial intelligence. I have been particularly struck by the evidence given by witnesses such as Professor John Naughton, who told us that the wider community, including government and industry, was dazzled by technology. He warned:
“We always have to be prepared to apply to it the standard levels of human scepticism that we apply to everything”.
In the report, we raised awareness of the many concerns surrounding AI decision-making. The committee responded with recommendation 6, calling on the Information Commissioner’s Office to set out rules for the use of algorithms in accordance with the principles laid out in chapter 2. We also recommended that the ICO publish a code of practice on the use of algorithms.
The GDPR is supposed to ensure that any data processing is transparent and fair, and avoids bias and discrimination. The Data Protection Act, passed last year in May, enacts these requirements in English law. Yet, despite the DPA, recent surveys show that people are still concerned about the use of algorithms. They are worried by what kind of data is selected to influence the algorithmic decision, the accuracy of the algorithms being used and whether they are fair and not affected by bias and discrimination.
My Lords, I begin by commending and congratulating the Communications Committee and its chairman, my noble friend Lord Gilbert, for an excellent and very far-sighted report. I should declare my own interest: I was a trustee of Doteveryone until recently, and the chief executive of TalkTalk less recently.
I have personally campaigned for balanced internet safety regulation for a long time. I passionately believe in the good that the digital world is bringing to society. I also believe in free markets and competition driving that good. However, it is clear that we also need to have a civilised digital world and that it needs regulation to protect the vulnerable and ensure a level, competitive playing field to continue driving innovation.
That position has felt quite a lonely place for quite a long time, with many of my fellow tech leaders arguing strongly that liberal markets will solve these problems; that the internet should be a completely open, unregulated space; or that no regulation is possible, because technology is moving too fast. On the other hand, campaigners have argued for blanket bans and blocks. I am therefore delighted to see—in this report, in the Government’s response in the online harms White Paper and in views expressed on both sides of the House, and in the other place—that there is a growing consensus that self-regulation ofthe digital world is not enough and not working, and that we need regulation that is thoughtfully designed across a whole range of potential social and economic harms.
I am particularly pleased to hear agreement on legislating to create a statutory duty of care. That puts into practice the first principle that the committee’s report sets out: that we need to look for parity between the offline and online world wherever possible. A statutory duty of care that, in a sensible and balanced way, puts the onus on organisations to look after their customers and stakeholders seems to me a fantastic way forward, and we have plenty of offline precedent to guide us in our online regulation.
My Lords, it is always a pleasure to follow the noble Baroness, Lady Harding, who, not for the first time, has beautifully articulated some of my points. But I intend to repeat them, and I hope that they will emerge not as stolen thunder but as a common cause, and perhaps a storm around the House as others speak also.
Since my time on the committee will shortly come to an end, I take this opportunity to record my personal thanks to the noble Lord, Lord Gilbert, for his excellent chairmanship throughout, and to pay tribute to my colleagues, who make our meetings so fantastically interesting, collaborative and, occasionally, robust. I also thank the clerk, Theo Pembroke, who has always met our insatiable curiosity with extraordinary patience and good humour. I draw the attention of the House to my interests as set out in the register, particularly as chair of the 5Rights Foundation.
In its introduction, Regulating in a Digital World offers the following observation:
“The need for regulation goes beyond online harms. The digital world has become dominated by a small number of very large companies. These companies enjoy a substantial advantage, operating with an unprecedented knowledge of users and other businesses”.
Having heard from scores of witnesses and read a mountain of written evidence, the committee concludes that regulatory intervention is required to tackle this “power imbalance” between those who use technology and those who own it. As witness after witness pointed out,
“regulation of the digital world has not kept pace with its role in our lives”;
the tech sector’s response to “growing public concern” has been “piecemeal”; and effective, comprehensive and future-proof regulation is urgent and long overdue. It is on this point of how the sector has responded to these calls for regulation that I will address the bulk of my remarks today.
8:22 pm
Lord Maxton (Lab)
My Lords, first, I thank the committee for its very thorough report and its chairman, the noble Lord, Lord Gilbert, for introducing it so ably and with such eloquence. However, I am one of the few Members who disagree with some of what the report says.
First, it is impossible to regulate the internet in a small nation state such as the UK. The internet is international. It is broad and goes across the whole world. Therefore, it is impossible to regulate it within one country. It may be that this is my anti-Brexit speech, but so be it. The fact is that you cannot regulate the internet in one country and one country only. You have to be part of a broader international scene to do that.
Secondly, there is a danger in overregulation of the internet, in that it stifles innovation. Innovation is at the core of all that we do in this matter. On balance, we are probably looking to overregulate the internet in this country—in this country only—and some of these big international companies will simply move elsewhere rather than stay here. Certainly, we must be very wary of overregulating the internet if as a result we stifle innovation, which is so important in the modern world.
Thirdly, if anything, the balance on the internet is in favour of the internet. More good comes out of it than harm. I think the report is negative, to some extent, in that it tends to go overboard on what is wrong with the internet, rather than telling us what is right about it. For instance, I do all my banking—or nearly all of it—on the internet. I do not go to the bank. When I went to my own bank branch recently, which has now closed, I looked around and said, “Oh, you’ve done this up”. One of the clerks said, “Yes, five years ago, Mr Maxton”. I have a Bank of Scotland app, with all of my bank accounts. I transfer money from one account to another, pay by BACS and pay on the internet. When I put my card into a machine at a bank, in a shop or wherever it might be, that too is the internet at work.
Most of the apps I use are simply there to provide a service. I read on a Kindle; I do not read books any more. A lot of authors are now bypassing publishers, going straight to Amazon and asking to write for it directly. If they go to Amazon, they get a greater return. The price is lower than a book, but they do not have to pay a publisher, a bookseller or all sorts of people to advertise it. It is advertised by Amazon and their return is higher. I group my websites and I have three golf clubs, a running club and a rugby club on my apps under “sport”.
Lastly, I say to everybody who produced this report that the one thing that has not been mentioned is “school” or “education”. Perhaps it was briefly mentioned in the report, but schooling is important. Surely that is where this ought to begin. We ought to start there by telling children how to deal with the internet. Instead, we tell them how to make computers, and a small proportion of them may be able to do that. The fact is that we do not tell them about the dangers the internet possibly has—I stress “possibly”. I will finish there, because I am very aware that we want to finish quickly.
My Lords, like other speakers, I congratulate the noble Lord, Lord Gilbert, and his committee on this useful report. I say at the outset that I am a director and trustee of Full Fact. It has been a great pleasure to discuss Communications Committee matters with many Members of your Lordships’ House, as I had the great privilege of doing that years ago when I was fortunate enough to chair the committee; those were some of the happiest times of my life in this House.
To make this report manageable, it was really sensible to set on one side many of the technical aspects of the internet—not least because I for my part cannot understand them—and a number of the aspects and implications of the phenomenon of large-scale data transfer in the context of areas such as the internet of things. Rather, we have a report that seems to concentrate on the relationship of the internet with individual human beings essentially in a personal capacity.
In this context, the internet is a complicated and potentially complicating intermediary between two separate things—a source of information and its consumer—which in turn may well involve commercial transactions and/or marketing of products or services in a way which, until recently, was unthinkable. I say as an aside that this may be one of the most abstract House of Lords reports I have read. This is not a criticism; it is a symptom of the difficulty of the problem we are looking at, which, in its domestic form, is merely part of a wider global problem which is embedded here in the United Kingdom—this is picking up on a point made by the noble Lord, Lord Maxton. We are talking about a fast-moving and ever-changing technology, and the techniques used to apply it, set in a global system.
I think this is the right starting point, because the report rightly comments that a “principles-based approach” is probably the only way to put in place a remotely relevant framework in such a fast-changing environment. From this starting analysis, it is important that the relationship between government—not only our Government—and those who effectively have the greatest influence and control over the net, the FAANGs of the moment, amounts to a reasonably amicable modus vivendi, each understanding the role of the other. The latter, who can organise much of their activity beyond the reach of any traditional Government, must retain consumer and public confidence, while Governments must try to ensure the benefits of this new technology are maximised for their citizens’ benefit.
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The authority would also play a vital role in providing the public, the Government and Parliament with the latest information on technological developments. Under our vision, there would be an important role for Parliament in monitoring progress and responding where regulatory gaps are identified by granting new powers as necessary. To this end, we proposed a new Joint Committee of Parliament with a remit to consider all matters related to the digital world. This will enable Parliament to maintain democratic scrutiny over the regulators. The work of this Joint Committee would be informed by the digital authority, which would regularly report to it.
In their response to our report, the Government state that they aim to provide co-ordination and oversight through their digital charter programme. They note several initiatives to strengthen the regulation of digital technology, including the work of expert reviews. However, our concern is that implementing the recommendations of each of these separate pieces of work could further fragment the regulatory landscape. Many reviews and reports have recommended new regulators. However, we believe it is time for co-ordination, not proliferation, of regulators. That is why we propose the digital authority as a forward-looking, horizon-scanning body that consolidates and supplements what is already there. We think the horizon-scanning role is vital, enabling us to get ahead of technology changes that will affect our society and to design, with the industry, public policy solutions to address emerging risks.
For those who worry about the impact of regulation on innovation and freedom of expression I argue that, by anticipating the future impact of technological development, regulation is likely to be more proportionate and considered. With much greater co-operation from industry in the process, credible solutions at the design stage are also more viable. That is why we see the digital authority as a UK centre of expertise that can support our regulators, Government and Parliament and attract talent that is so often poached by the big tech companies.
Our second key recommendation was that all online regulation should be underpinned by 10 principles, including accountability, transparency, respect for privacy and freedom of expression. These principles would help the industry, regulators, the Government and users work towards a common goal of making the internet a better, more respectful environment that is beneficial to all. Responding to our report, the Government said that these were aligned with the principles set out in their online harms White Paper. However, we argued for principle-based regulation that is flexible and seeks to ensure appropriate outcomes. This is necessary in the fast-changing world of the internet. Our principles are not just an aspiration for what regulation should look like; they are intended to inform both the development of policy and the implementation of regulation. In each case, they cannot be taken separately; policymakers and regulators must consider them together, carefully balancing competing factors such as regulation and innovation, online safety and freedom of expression.
The Government have done considerable work to address online harms through their White Paper. I welcome efforts to introduce robust regulation, but our concern is that they appear to be doing this in isolation from other work. To begin, we noted that questions of design are at the heart of how the internet is experienced. It affects how users behave online and how decisions are made about them. The architecture of many online services is designed to capture users’ attention so that their data—essential to the business models of most of the large tech companies—can be extracted. Personal data are processed using black-box algorithms that are not transparent. Extraction is not limited to data that users upload; behavioural data are gleaned from users’ online activity. We recommend that users should have greater control over the collection of personal data; maximum privacy and safety settings should be the default.
The Government noted that the general data protection regulation addresses a number of these points, but this law is new and its application untested. We identified grey areas that the Government should clarify, such as inferred data. We also suggested ways to increase transparency and accountability in line with our principles. For example, we recommend that data controllers and data processors should be required to publish annual data transparency statements detailing which forms of behavioural data they generate or purchase from third parties, how they are stored, for how long, and how they are used and transferred. This is quite different from the privacy statements that currently exist.
The internet presents challenges to competition law. Digital markets develop quickly, whereas the competition regulator relies on meticulous and ex post analysis. There is widespread concern that competition authorities place too much emphasis on price. Meanwhile, the digital economy is characterised by the concentration of market power in a small number of companies that operate online intermediary platforms. These platforms benefit from network effects to gain dominant positions in their respective markets. Some of them provide services to consumers without charge. As intermediaries in markets they can shift costs from consumers to suppliers, while both are dependent on them. Information gained from direct access to consumers also gives platforms a competitive edge, and they have huge big data sets. There is concern that they use this information to identify and buy up emerging competitors. The Government should consider creating a public interest test for data-driven mergers and acquisitions. To deliver this, the digital authority could help co-ordinate the work of the Competition and Markets Authority and the Information Commissioner’s Office, both of which gave us thoughtful evidence.
Regulation should also recognise the inherent power of intermediaries. Greater use of data portability might help, but this would require more interoperability. I welcome the review by Professor Jason Furman that explored these issues and made recommendations. The noble Lord, Lord Tyrie, has called for the Competition and Markets Authority to have greater powers to regulate in the interests of consumers; I look forward to his contribution to this debate. Technology companies provide venues for illegal content and other forms of online abuse, bullying and fake news. Although they acknowledge some responsibility, their responses are not of the right scale to deal with the problem.
The Government’s proposal to introduce a duty of care accords with our recommendation. However, we did not wish to recommend a new regulator to enforce this duty. We recommend that, at least initially, Ofcom should be responsible for enforcing the duty of care. In so doing it should focus on the process for dealing with online harms rather than on content or on specific instances of wrongdoing. Big platforms should invest in better moderation processes. They should be held to the standard they set out in their own terms of service. We also recommend that online platforms should make community standards clearer through a new classification framework akin to that of the British Board of Film Classification. I would be grateful if the Minister could respond to that recommendation. I also ask him for assurances about the impact of the duty of care on the press and how the Government intend to balance journalistic freedom with regulation of online harms.
Looking at the speakers’ list, I know we will enjoy a thoughtful and fascinating debate this evening and look forward to noble Lords’ contributions. I beg to move.
The approach to regulation should be the one suggested by the noble Lord, Lord Gilbert, and the committee. We need a principles-based approach which is nuanced, because we face difficult decisions. If we take, for example, the issue of anonymity, some people looking at the abuse on social media by people who remain anonymous say that the situation could be remedied by forcing everyone who makes a statement online to leave an address at which they can be traced, so that action and redress can be sought by the person who has been offended. This is a very good idea in its own right, but what effect would it have on whistleblowers who perhaps live under regimes where they would be exposed, even to loss of life? It is going to be difficult to get it right, and knee-jerk reactions are not appropriate.
Ideally, we need a blend of the stick and the carrot. The stick is the threat of legislation, and as the noble Lord, Lord Gilbert, has outlined, we have suggested a digital authority with new, real powers to enforce statutory regulation if required. Clearly preferable, if we could achieve it, would be self-regulation and co-regulation. The idea of ethical design will not work unless the companies embrace the 10 principles we have put forward and recognise that they are in their own self-interest, as well as the public interest. Self-interest should also lead them wholeheartedly to adopt the principles that we have advocated. Unless there is trust in the internet, people will not yield their data for use, and the internet business model of a great many companies will be out of the window.
In recent days, I have been in contact with the Internet Advertising Bureau, and there is further progress with its gold star system. After giving evidence to us, it emerged that the number of companies taking part has gone up from 52 to 105, and the number of people certified has risen from 12 to 91. The gold star is awarded only if they pass a reasonable standard in avoiding ad fraud, producing transparency and preserving brand positioning. If the regulation is inadequate, it is up to the advertising industry to drive a harder bargain. Likewise, in other forms of regulation, it will be up to the digital authority to say that the bar could be set a little higher. With gentle nudging—once we have got the issue of regulation accepted as a principle—where the bar is put is a matter for negotiation. If we can get 95% of what we are looking for by self-regulation, it is worth forgoing the other 5% unless it is absolutely vital; but others will differ, and there will be some issues where we need 100% support.
Turning to the powers of the digital authority, I do not want to go over what the noble Lord, Lord Gilbert, has put forward, but rather link it to the debate we have just had on Henry VIII powers, abuse of powers by government and statutory instruments. This is another area where our suggested model could be of some help. Our idea is that there should be a digital authority answerable to the highest level in government. Where that is set is up to government, but it has to be somebody who can call the shots: rather than simply asking the health service to do something, it has to be a body powerful enough to tell the health service to do something—or even the Treasury, which, as your Lordships will recognise, would be a constitutional breakthrough.
The Joint Committee of both Houses, apart from producing a quarterly report on the landscape, would have the power to say that there is an urgent problem which needs dealing with. Let us be honest, Parliament is hopelessly inadequate to deal with the internet. By the time legislation is introduced and passed, a year will have gone by with no bother, the landscape will have changed and evasive action will have been taken. We need action to be taken quickly, and if the committee of both Houses were to endorse giving the Minister the powers to deal with the problem, it would carry a lot of weight in both Houses. They would feel that it was not simply a question of giving the Minister Henry VIII powers, but that those powers had been subject to some degree of scrutiny.
If we can get this right, it could be life-changing for our country. The internet is, in its own way, a much more important invention than printing, because of its interactivity. If we can get it right, and if we can align public interest and self-interest, we will harness one of the great positive forces for good in our society.
This need not curb free speech. In fact, in the ever-increasing world of fake news and all the rest of it, it might be the salvation of free speech—for freedom is not freedom to say what I like and do as I please without regard to others, but to be free to do what we must to serve the good of all.
Self-regulation is manifestly failing. A few powerful companies dominate the digital landscape. They say they are platforms, with little or no responsibility for those who walk upon them, but they are actually public spaces with a duty of care to those who enter. I am pleased that the Government have embraced that concept but they seem reluctant to fully embrace the principles-based approach to the internet that this report recommends. The principles-based approach is, yes, to regulation but also, critically, to policy and development so that we might create a different future. We believe that this will require an overarching body, as the noble Lord, Lord Gilbert, has explained, which we call the digital authority. However, if we do this, it might break the Gordian knot of a tangle of competing bodies and rules and therefore hold the possibility of the UK taking a lead on an issue that is significantly rising up the agenda of public concern and we ask the Government to look at it again. Those clever algorithms that are so good at selling us stuff could be used to design the internet differently. What is now required is the political will to make it happen.
Finally, I remind the House of the regulations that have already been introduced. Several bishops, including myself, recently wrote to the Information Commissioner, Elizabeth Denham, in support of what I think is called—the noble Baroness, Lady Kidron, will correct me later if I have got it wrong—the kids’ code that has been put forward in draft. We made the point that the online world shares the offline world’s ethical duty to differentiate between children and adults and to respect and protect both the vulnerable and the marginalised in the digital world.
We cited the example—hey, we are bishops and this is the way we do things—of Jesus’s most famous story of the Good Samaritan, where the Good Samaritan crosses boundaries to transcend the normal ways in which we do things in the different social and political jurisdictions we inhabit. Likewise, the tech sector and the digital world need to accept the demands of responsibility above profitability and to acknowledge their corporate responsibility to uphold the common good. We are concerned that the Government may row back from their commitment to introduce this code and fulfil their responsibility to children.
In the coming days, we will write to the Secretary of State on this matter. However, importantly, for this debate today, let us not keep reimagining a better future without also grasping the opportunity for that future to start today.
The ICO’s interim report, Project ExplAIn, published last week, attempts to lay the basis for ethical guidelines in AI decision-making. It explains that there is distrust among many digital organisations of transparency in AI decisions. They fear that it may lead to breaching commercial sensitivities, infringing third-party data and their programmes being gamed by users. However, these concerns need to be set against individuals’ requirements for organisations to give appropriate, detailed explanations of AI decision-making. The report suggests that there is space to help to bridge this divide and help organisations to foster a culture of informed and responsible approaches to innovation in AI technologies.
This work sounds like a good basis for the ICO to publish draft guidelines on ethical designs in July, with final publication in October. These will go a long way to ensuring that there is improvement in the accountability of AI decision-making. I encourage the Government to ensure that these guidelines are in line with the principles set out in the report. Even so, they will be only guidelines. However well thought out they might be, I fear that the digital world will always harbour organisations and individuals who do not want to abide by them.
The GDPR is limited. Article 22 of the GDPR and Section 14 of the Data Protection Act adopt suitable measures to safeguard individuals when using solely automated decisions. This allows data subjects to appeal against an AI decision only when it is fully automated and there is no human involved. However, once human involvement in this decision is determined, the data subject cannot appeal. As many AI decisions are augmented by human intervention, this seems to be a loophole. Do the Government plan to plug this loophole and ensure that relevant legislation is brought forward to deal with any potential problem arising from this?
Ethical design is also relevant to my other great concern, raised in the report in paragraph 82, under the heading “Capturing attention”. It points out that digital companies are driven by the commercial imperative to seek and retain users’ attention. The EU Competition Commissioner, Margrethe Vestager, warns that this can lead to a form of addiction. On Monday, Barnardo’s issued a report expressing concern that children’s early access to electronic devices could lead to both addiction and a loss of key social skills as families spend less time talking to each other. This could cause the children problems with mental health and emotional well-being. The committee’s report anticipates these concerns and recommends that digital service providers, including entertainment and games platforms, record time spent using their service and give users reminders of extended use through pop-up notices.
In the debate on the online harms White Paper on April 30, I said that I was concerned that this problem was not being taken seriously by the Government. The White Paper says that the CMO’s review, which covered online gaming and internet addiction, did not find evidence of a causal relationship between screen-based activities and mental health problems. The White Paper shockingly concluded that the evidence did not support the need for parental guidelines or requirements for companies to behave responsibly in this area.
This lack of action is made particularly serious by the failure to confront the growing problem of gaming addiction, which affects so many young people, especially young men. Policymakers and psychologists across the developed world see this as an issue that needs to be addressed now. However, the White Paper almost ignores it.
In his reply to my April speech, the Minister said:
“I completely agree with what was said about the resistance of the gaming sector, in particular, to engage with this issue”.—[Official Report, 30/4/19; col. 933.]
He gave me his support, for which I was very grateful. It is now six weeks later. Can the Minister give me some assurance that the Government are working to ensure that the gaming industry’s resistance to dealing with gaming addiction will be seriously addressed? Failure to confront this issue quickly and comprehensively will lay the foundations of social and mental problems for generations to come.
I would also like to congratulate the committee on its work in setting out a principles-based approach to regulation; its 10 principles are excellent. Why are some of those 10 principles not replicated in the Government’s thinking in their response? They seemed a balanced and comprehensible set of guidelines for us to shape regulation for the future.
I would like to move on to an important issue raised by my noble friend Lord Gilbert, on which I am less convinced that there is consensus: whether we should be addressing digital regulation piecemeal in each different part of society as it arises, or in a co-ordinated and more strategic way. In business, almost every large historic, physical, non-digital business has worked out that you need to bring digital leadership into one place for at least a period of time—you need to bring together all the teams looking at driving change on your digital agenda if you are really going to get momentum. It does not need to be done for ever. I have tried it both ways in my business career—keeping it separate or pulling it together—and, if you really want to create a step change in a physical organisation that is learning about the digital world, you need an overarching digital strategy and a team of people who specialise in looking at all the interconnectivity of these different digital issues.
It seems to me that the recommendation in this report to create the digital authority does exactly that in our physical society as we learn to integrate it with digital. The skills are too limited to keep them spread and the issues are too overlapping. It requires a different way of thinking from the old physical world. In all my experience in business, if you organise that together, you will get an acceleration of thinking and learning that can then be embedded in all the different parts of the system.
I think that the committee is really on to something here. I am concerned that the Government do not appear to agree and instead prefer a more fragmented approach, creating additional regulators—which, as a good liberal Conservative, I do not like anyway—in what looks like an attempt to glue together this approach in a digital charter. To me, it looks more like a digital work plan than a charter, when compared with a statutory digital authority.
I am concerned for a number of reasons. First, I am worried that the digital charter is too close to politics. These complex and technical issues require a lot of detailed thought from experts who really understand the subject. Regardless of who is in charge in whichever Government we have, I am nervous about the digital charter being glued into the DCMS in a purely informal way. I also think that it is too easily captured by powerful lobbyists. The tech industry is not separating out its approach to lobbying on digital regulation. Do not think for a moment that there are disparate teams working on online safety and online competition: there is one unified thought process coming through the tech industry. If we are going to get to the right, balanced answer, we should be doing the same.
It is dangerous to have your core digital strategy interwoven with an economic Ministry in DCMS. We are asking our DCMS Ministers and civil servants to be poacher and gamekeeper: to attract inward investment, but at the same time to create a fair, level playing field and safety net for the vulnerable.
Those are all reasons why, in principle, we should accept the recommendation of this report and establish a digital authority. I think that we can see in practice why we should as well. Like the right reverend Prelate, I am concerned that the kids’ code—the age-appropriate design code—will get watered down through hugely effective lobbying from people who will tell you that it is impossible or that it should be very narrow. I am sure that the noble Baroness, Lady Kidron, will give us more detail on this when she speaks, so I will try not to steal her thunder. It is a great example of why, if we are not very careful, it is impossible to balance poacher and gamekeeper.
In conclusion, I congratulate the Communications Committee and its chair on this excellent report, and ask the Minister to reconsider the Government’s response and bring forward legislation to set up a digital authority and to implement the 10 principles set out in this report. I suspect that all of us in the Chamber this evening agree that this presents a real opportunity for us to do what we did in this country 150 years ago: to manage that balance between being open to innovation and protecting everyone in society as technological innovation gathers pace. This is a hugely exciting report and I am delighted to be part of the debate this evening.
Earlier this year, Mark Zuckerberg said:
“I believe we need a more active role for government and regulators. By updating the rules for the internet, we can preserve what’s best about it ... while also protecting society from broader harms”.
Meanwhile, Jeff Bezos said that Amazon will,
“work with any set of regulations we are given. Ultimately, society decides that, and we will follow those rules, regardless of the impact that they have on our business”.
These are just two of several tech leaders who have publicly accepted the inevitability of a regulated online world, which should, in theory, make the implementation of regulation passed in this House a collaborative affair. However, no sooner is regulation drafted than the warm words of sector leaders are quickly replaced by concerted efforts to dilute, delay and disrupt. Rather than letting society decide, the tech sector is putting its considerable resource and creativity into preventing society, and society’s representatives, applying its democratically agreed rules.
The committee’s proposal for a digital authority would provide independence from the conflicts built into the DNA of DCMS, whose remit to innovate and grow the sector necessarily demands a hand-in-glove relationship but which also has a mandate to speak up for the rights and protections of users. More broadly, such an authority would militate against the conflicts between several government departments, which, in speaking variously and vigorously on digital matters across security, education, health and business, are ultimately divided in their purpose. In this divide and rule, the industry position that can be summed up as “Yes, the status quo needs to change but it shouldn’t happen now or to me, and it mustn’t cost a penny” remains unassailable.
The noble Lord, Lord Gilbert, set out many of the 10 principles by which to shape regulation into an agreed and enforceable set of societal expectations, but they are worth repeating: parity online and offline, accountability, transparency, openness, privacy, ethical design, recognition of childhood, respect for human rights and equality, education and awareness-raising, and democratic accountability. I want to pick up on one single aspect of design because, if we lived in a world in which the 10 principles were routinely applied, maybe I would not have been profoundly disturbed by an article by Max Fisher and Amanda Taub in the New York Times last week, which reported on a new study by researchers from Harvard’s Berkman Klein Center. The researchers found that perfectly innocent videos of children, often simply playing around outside, were receiving hundreds of thousands of views. Why? Because YouTube algorithms were auto-recommending the videos to viewers who had just watched “prepubescent, partially clothed children”. The American news network MSNBC put it a little more bluntly:
“YouTube algorithm recommends videos of kids to paedophiles”.
However, although YouTube’s product director for trust and safety, Jennifer O’Connor, is quoted as saying that,
“protecting kids is at the top of our list”,
YouTube has so far declined to make the one change that researchers say would prevent this happening again: to identify videos of prepubescent children— which it can do automatically—and turn off its auto-recommendation system on those videos.
The article goes on to describe what it calls the “rabbit hole effect”, which makes the viewing of one thing result in the recommendation of something more extreme. In this case, the researchers noticed that viewing sexual content led to the recommendation of videos of ever younger women, then young adults in school uniforms and gradually to toddlers in swimming costumes or doing the splits. The reason for not turning off the auto-recommend for videos featuring prepubescent children is—again, I quote the YouTube representative’s answer to the New York Times—because,
“recommendations are the biggest traffic driver; removing them would hurt ‘creators’ who rely on those clicks”.
This is what self-regulation looks like.
Auto-recommending is also at the heart of provision 11 in the ICO’s recently published Age Appropriate Design Code, which, as the right reverend Prelate said, is commonly known as the “kids’ code”. Conceived in this House and supported by many noble Lords who are in the Chamber tonight, provision 11 prevents a company using a child’s data to recommend material or behaviours detrimental to children. In reality, this provision, and the kids’ code in general, does no more than what Mark Zuckerberg and Jeff Bezos have agreed is necessary and publicly promised to adhere to. It puts societal rules—in this case, the established rights of children, including their right to privacy and protection—above the commercial interests of the sector and into enforceable regulation.
Sadly, and yet unsurprisingly, the trade association of the global internet companies here in the UK, the Internet Association, which represents, among others, Amazon, Facebook, Google, Twitter and Snapchat, is furiously lobbying to delay, dilute and disrupt the code’s introduction. The kids’ code offers a world in which the committee’s principle—the recognition of childhood—is fundamental; a principle that, when enacted, would require online services likely to be accessed by children to introduce safeguards for all users under the age of 18.
The Internet Association cynically argues that the kids’ code should be restricted to services that are “targeted at children”, in effect putting CBeebies and “Sesame Street” in scope, while YouTube, Instagram, Facebook, Snapchat, et cetera, would be free to continue to serve millions of children as they alone deem fit. The Internet Association has also demanded that children be defined only as those under 13, so that anyone over 13 is effectively treated like an adult. This is out of step with the Data Protection Act 2018 that we passed in this House with government agreement, which defines a child as a person under 18. Moreover, in the event that it is successful in derailing the code in this way, it would leave huge numbers of children unprotected during some of the most vulnerable years of their life.
Perhaps the most disingenuous pushback of all is the Internet Association’s claim that complying with regulations is not technically feasible. This is a sector that promises eye-watering innovation and technical prowess, that intends to get us to the moon on holiday and fill our streets with driverless cars. In my extensive conversations with engineers and computer scientists both in and out of the sector, no one has ever suggested that the kids’ code presents an insurmountable technical problem, a fact underlined by conversations I had in Silicon Valley only a few weeks ago. Yes, it requires a culture change and it may have a price, but the digital sector must accept, like all other industries have before it, that promoting children’s welfare—indeed, citizens’ and community welfare more generally—is simply a price of doing business. Let us not make the mistake of muddling up price and cost, since the cost of not regulating the digital world is one that our children are already paying.
Regulating in a Digital World establishes beyond doubt that if we want a better digital world, we must act now to shape it according to societal values, one of which is to recognise the vulnerabilities and privileges of childhood. I recognise and very much welcome the future plans of the Government in this area, but if we cannot get one exemplar code effectively and robustly into the real world, what message does that send to the sector about our seriousness in fulfilling the grand ambitions of the online harms White Paper?
When replying, could the Minister give some reassurance that the Government will indeed stand four-square behind the Information Commissioner and her ground-breaking kids’ code? In doing so, will they meet the expectations of parents, who have been promised a great deal by this Government but have not yet seen the change in the lived experience of their children. More importantly still, will they meet the needs and uphold the rights of UK children, rather than once again giving in to tech sector lobbying?
I will finish with the words of a 12 year-old boy who I met last Thursday in a 5Rights workshop. A self-professed lover of technology, he said, “They sacrifice people for cash. It makes me so angry. I can’t believe that people are so unnecessarily greedy”. His words, remarkable from someone so young, eloquently sum up the committee’s report.
It follows that Governments in the western world, many outside it—excluding certain authoritarian regimes—and the big tech companies, taking a longer view, have a mutuality of interest in working together. As Tim Berners-Lee, who was quoted at the beginning of the report, has said, the internet is potentially a great force for good. One should add to that proposition that it is one that is not going to go away. On the one hand, Governments need to enlist internet players to assist in dealing with human, financial, political and reputational harm, as well as bettering the human condition more generally. At the same time, internet businesses, by being involved in that, can expect a regime in which they will get a reasonable return—on which appropriate tax should be paid.
An important point contained in the report is that there should be as seamless a join as possible between online and offline rules of behaviour and conduct, although clearly there are some attributes unique to the internet, such as algorithms, which may require their own rules. Rules must be not only enforceable; where appropriate, they must be enforced.
As I have mentioned, while some of the problems which arise are essentially domestic, many are not. Sometimes those which are not are less obvious; for example, some of the corruption we have seen in domestic UK elections of late. Natural boundaries and traditional jurisdictions are in many cases irrelevant. Our country, like every other, must accept that.
A shortcoming of the report, which may be deliberate—for reasons I have touched on already—is the almost complete silence about the cross-border, cross-jurisdictional aspect of the internet’s workings. The noble Lord, Lord Maxton, pointed this out, and allusion is made to it in the text. As the report points out, leaving the EU presents some real difficulties in this regard. They can, and no doubt will, be negotiated and dealt with in another way in a post-Brexit world, but the problem has always gone much further than the European Union. Collectively, Governments of the world must somehow evolve a universal and consistent framework for the modus operandi of the internet, as viewed from the perspective of consumers and enforcers, although exactly how that might be done is beyond my pay grade at the moment.
I think there are two parallel problems. First, jurisdictional difficulties need to be set aside to try to achieve some kind of workable international transactional homogeneity. As part of this, those who influence the way in which the internet works need to be brought into the rule-making process. This is not the traditional approach to lawmaking within the nation state, but there is a need for a system which brings about an agreed and accepted outcome into which there is general buy-in, subject in the last analysis to effective enforcement. If there is not, it will not work. Secondly, however that may be brought into being, the arrangements must be living, or they will rapidly become outdated, as has already been said.
Currently, in the midst of the Brexit crisis—if I may describe it that way—much of the focus of the debate has been on the legislative structure of the European single market. The system that emerges may make that look positively simple. If so, so be it, because unless we grasp this particular nettle, the likely outcome is an anarchic muddle.
At the start of my remarks, I commented on the somewhat abstract character of the report, only to then make a generalised and somewhat abstract speech myself. However, it seems to me that if a requirement of a regulated, working internet is to achieve its full potential in the wider public interest, it must be brought into being as a result of some quite radical actions, and radical thinking is required to do that. This is not simply a domestic issue which relates to domestic activities. It goes much further than that. International problems require international solutions.