PARLIAMENTARY DEBATE
Digital, Culture, Media and Sport Committee - 27 January 2022 (Commons/Commons Chamber)

We now come to the Select Committee statement. Julian Knight will speak for up to 10 minutes, during which no interventions may be taken. At the conclusion of his statement, I will call Members to put questions on the subject of the statement and call Julian Knight to respond to those questions in turn. Members can expect to be called only once. Interventions should be questions and should be brief. Front Benchers may take part, but I remind everybody that we have a very important debate to follow and I hope that people will try to ensure that we get on to that debate as early as possible. I now call the Chair of the Digital, Culture, Media and Sport Committee—Julian Knight.

Thank you, Mr Speaker. With your words of endorsement ringing in my ears, I will ensure that I am as brief as the subject can allow.

I am grateful to have been granted this statement to discuss the DCMS Committee’s report on the draft online safety Bill. This is an important piece of legislation that, if done right, will prevent a tremendous amount of harm to so many in our society. The ultimate aim for all of us involved in the production of the Bill is to make user-to-user and search service providers more accountable for decisions they make when designing their platforms and the systems and processes that govern them. The Committee I chair has a crucial role in ensuring that that is the ultimate outcome of this work. While I welcome large parts of the Bill’s content in draft form, there are some elements that do need work so that we do not miss the opportunity to make the internet a safer space for all, while protecting freedom of expression.

One such area of particular concern to the Committee is that the Bill in its current form lacks clarity on what falls within the parameters of illegal content and in its treatment of legal but nevertheless terribly harmful content. For example, the Committee was alarmed to hear in evidence so many examples of online abuse towards women and girls that would not be adequately covered by the Bill in its current form. We are all aware of frankly appalling images being shared online without the consent of those pictured, some of whom are underage. Many of these would be covered by the Bill, but not all.

Furthermore, the internet is awash with images that are often edited to cause harm and are clearly not within the scope of the Bill. My Committee’s report seeks to tackle this. We also have concerns about the less immediately obvious examples of abuse such as breadcrumbing—leading someone on virtually with a series of digital breadcrumbs on the way to illegal and harmful material. In such instances, the context of these communications is key. Some examples of online abuse that we have heard in our investigations are insidious—inch by inch, step by step, allowing people, often children and teenagers, to be lured in. In such instances, no one message, picture or like is technically illegal, but they none the less form part of a sequence of online child sexual exploitation and abuse. The Bill can and must stop this. For this reason, we propose reframing the definition of “illegal content” to include context.

The Committee was truly shocked by the repeated examples of cyber-flashing and deliberate manipulation of images such as tech-enabled nudifying of women and deepfake pornography, which currently go unchecked. The deliberate manipulation of images to circumnavigate content moderators is egregious in its own right. It is also a key hallmark of potential child exploitation. This Bill, if crafted correctly, can and must protect children from such acts and such tactics. In its current form, it does not adequately cover these examples of truly harmful content. As such, we propose that they should be included in the Bill and covered by the duties of care in it.

Another area that many Members are rightly deeply concerned by is the many examples of inherently harmful activity that are not illegal. We support the Joint Committee in its view about harmful actions such as cyber-flashing, and people with photosensitive epilepsy being targeted by trolls sending malicious flashing images with a deliberate intent to trigger a seizure: these offences, in all the senses that we would understand, must be included in the Bill.

Finally, I come to the issue of scrutiny. The current provisions in the Bill to provide Ofcom with a suite of powers to address such actions are unclear and impractical. We urge the Government to bake in best practice by providing greater clarity in the Bill on when and how these powers should be used to ensure that they are both practical and proportionate. We recommend that there should be compliance officers in the social media companies, paid for by those companies, baking in that best practice. That will, hopefully, also lead to the ending, or at least reduction, of unwarranted take-downs.

The present situation is deeply unsatisfactory. Effectively, social media companies are editors-in-chief of the content on their sites. There is no say, and no transparency. They act according to their terms and conditions, which they decide. That can lead—and has led in the past—to unwarranted take-downs, and the people who suffer those take-downs then have to appeal to the social media companies. This is not right. It is against freedom of speech. We need proper systems so that transparency and know-how on the ground can ensure that any such issues of take-down are set against clear parameters. That can, I believe, be regulated in the same way as financial services are effectively regulated—through a strong compliance regime.

We specifically recommend that the Government reframe the language relating to freedom-of-expression considerations to incorporate a “must balance” test, to enable Ofcom, and the compliance officers whose introduction we propose, to assess whether providers have duly balanced their freedom-of-expression obligations with their decision making, thereby preventing unjustified take-downs of material.

Our Committee has made clear that it strongly disagrees with the recommendation of the now defunct Joint Committee—which did amazing work in this area—that a permanent Joint Committee be established as

“a solution to the lack of transparency and…oversight”.

We disagree with that proposal for a range of reasons, but not least because it would set a precedent which could be written into any other Bill and could then effectively circumnavigate the Select Committee system. I think the Select Committee system is the jewel in the crown of this House, and I say that not just because I have a personal interest in it. This, I think, is something we can do ourselves. If there is a need for pre-legislative scrutiny, Select Committees should be able to deal with it, but in any event the Government are free to set up a framework of pre-legislative scrutiny which may be on a one-off or ad hoc basis. That has happened before after a period of time in the case of other Acts that have passed through this place.

I welcome wholeheartedly the aims of this Bill and much of its content. I hope and expect the Department to be in listening mode—I know that the Minister personally is absolutely committed to that—so that we can all work together to ensure that the aim and the reality of the Bill are aligned, and we can make the internet a safer and a better place that is more in tune with what I would describe as the health of our society.

I thank the hon. Member for Solihull (Julian Knight) and the other members of the Committee for their hard work in delivering this important report. Having previously been a member of the Committee, I am all too well aware of the challenges to online safety, particularly in the context of defining or contextualising what constitutes a “harm”. The Labour party has long called for tougher penalties for tech companies which fail to comply with their responsibilities to users; a change in culture is clearly urgently required for those companies, which have been left unaccountable for far too long.

The report has also highlighted a number of issues, or omissions, in the Government’s current draft bill, and I am keen to hear the hon. Gentleman’s thoughts on those. First, the report recommends that providers should have designated compliance officers to ensure good governance. This is not the first time that that recommendation has been made, but the proposal has been discounted until now. Does the hon. Gentleman agree that the Government have been too slow in pushing social media companies to act?

Secondly, the Secretary of State, in her evidence to the Joint Committee assessing the draft online safety bill, referred to legal advice that she had received, including advice on a foundational duty of care. Does the hon. Gentleman agree that it is vital for the Government to publish that legal advice ahead of the response to the DCMS Committee’s report, so that their reply can be understood in the context of the advice that they have received? I am sure the hon. Gentleman will agree—especially given events that have unfolded in relation to other matters this week—that it is simply not acceptable for the Government to conceal important advice from the public domain.

I thank the hon. Member for her kind question, but also for her acknowledgment of the ongoing work of the Select Committee, on which she played a fantastic role during her time with us.

The hon. Member references compliance officers, and the key, of course, is to make the regime pre-emptive rather than reactive. I think that actually helps freedom of expression, basically because if we in effect have this baked into the system, there is less chance of take-downs as a result.

When it comes to social media companies and the Government’s interaction with them, there is an idea that the Government have in effect run scared of social media and the huge lobby. These are the new masters of the universe—the new oil companies, the new banking institutions—and they have huge and enormous powers. I think it is therefore beholden on the Government to draw from every part of this House in order to come up with a framework that can best bring them in to be good citizens in our society. I am hopeful of the time when Nick Clegg is not perhaps as welcome in putting his views, but is in that regard perhaps the same as Members in this place. I do concur to some degree with the hon. Member, but every Government in the world is also facing this huge issue.

On publishing legal advice, I do believe wholeheartedly in complete transparency. I think that part of the process of being cross-party and getting this Bill right actually should be absolute transparency when it comes to such matters.

I congratulate my hon. Friend and his entire Committee on this report into what he correctly describes in the report as a very “complex” Bill. Given its complexity, does he agree with me that it is very important that the Government response both to his Committee’s report and, indeed, to the report of the Joint Committee on the Draft Online Safety Bill is not just substantive, but timely and reaches all of us well in advance of Second Reading of the Bill, so that we can all consider properly the Government’s responses?

I thank my right hon. and learned Friend, and I do concur in that respect. We have waited a very long time for this Bill, and we have to get it right. I think we have waited too long for the Bill, but that is the past—that is done. What we cannot do now is rush things to such an extent that we cannot take everyone’s views on board, and therefore I would concur. Basically, this has to be a structure that survives, potentially for decades to come, and is built on as we see challenges going forward, so I concur with my right hon. and learned Friend.

I thank the hon. Gentleman for his statement. I am very glad to hear him acknowledge the importance of protecting freedom of expression, but there is also the issue of anti-discrimination law. On a number of occasions in this Chamber, I have raised the problem that Twitter’s hateful conduct policy and its moderation policy often discriminate against women by taking down women’s tweets when they state biological facts and failing to take down abusive and violent tweets directed at women. The reason for that being that Twitter does not have sex as a protected characteristic in its hateful conduct policy. This was raised by the Joint Committee on Human Rights in a report a couple of years ago, in which we recommended that Twitter should include sex as a protected characteristic in its hateful conduct policy.

From my inquiries, it seems that Twitter thinks it is above the domestic law of the United Kingdom when it comes to anti-discrimination law, and it seems to be praying in aid a loophole in the Equality Act 2010. I am not sure it is right about that legally, but does the hon. Gentleman agree with me that, if there is a loophole in the Equality Act that is letting Twitter off the hook when it comes to our anti-discrimination law, the Online Safety Bill would be a good opportunity to close that loophole, so that Twitter and other service providers are all subject to the anti-discrimination law of the United Kingdom?

I thank the hon. and learned Lady for her comments, and I have a great deal of sympathy for what she says. I am well aware that she receives unwarranted and vile abuse at times for expressing her views, and I think that is abhorrent in many respects. It highlights in many regards the point I made earlier about the social media companies being their own editors-in-chief and effectively having their own content policies. That will be the case going forward, but there needs to be oversight of those so that they are compliant with the new law as it stands. One of our recommendations is:

“We have proposed several amendments to the definition and scope of harms covered by the regime that would bring the Bill into line with the UK’s obligations to freedom of expression under international human rights law.”

I hope that that recommendation would cover many of the aspects to which the hon. and learned Lady is referring.

A few years ago, on social media, there was a picture of my young son being beheaded in an ISIS-type scenario. It was not really my son in the picture, but the image represented my son. The excellent Chairman of the Select Committee is right to say how powerful Select Committees are. Would anything that the Government are doing in the Bill have prevented that picture from being put online, or have helped us find out who did that?

I have heard of this before from my hon. Friend. I am grateful for the opportunity to express my deepest sympathy, shock and anger at the vile, disgusting behaviour that he and his family faced. The short answer to his question is: yes, if the Bill is got right. That picture is a type of deepfake. The harassment aspect is illegal; a case would have to be built around the harassment aspect, so he would almost have to take this offline, rather than deal with it as an online matter. The way to deal with it online would be by baking in resources such as compliance officers, and by writing it into the Bill that posting and manipulating an image that is meant to do harm should be considered an online harm, and therefore something for which social media companies could be called to account. If the Bill is crafted correctly, the egregious and disgusting use of vile images of that kind would, I hope, be curtailed.

I thank my hon. Friend, the Chair of the Select Committee. I confirm that all Members across the Committee are in firm agreement with the recommendations in the report. Does he believe that the Government should take particular note of recommendation 19 on designated compliance officers, and recommendation 28, which says that the Government should scrap plans to introduce a permanent joint committee to oversee online safety and digital regulation? The latter idea seems to have come out of nowhere; perhaps it was written on the back of a fag packet or came from a weekend tweet—I do not know. Should the Government not abandon that daft idea, and recognise that it is the proper duty of the Select Committee to undertake that scrutiny?

For me, one of the attractions of compliance officers is that the idea is based on the regime we have for financial services, which has been one of the most successfully regulated industries, certainly over the past 15 years since the financial crash. The role of the compliance officer has been key to that. One good thing about the proposal is that it is the social media companies that would pay. Whenever social media companies see any form of potential illegality, they push it to arm’s length; they push it to the police, and expect the police to pick up the pieces. The police do not have the resources to chase these things down, so only exemplars get pulled up by the police. The companies should be responsible, and should pay for their own policing.

Of course I agree with the point about recommendation 28. I would like to think that the debate on that has shifted over time. The Secretary of State was obviously expressing a genuine view. I completely understand that view, and why it was expressed at that juncture. However, the Joint Committee on the Draft Online Safety Bill has perhaps run away with the suggestion a little bit, and in so doing, has perhaps encroached on the good governance of this place.

I thank the hon. Gentleman for his answers. Recent reports have stated that the draft Online Safety Bill is neither clear enough nor robust enough to tackle some forms of illegal and harmful content. Responsibility for some of the most serious forms of child sexual exploitation may be evaded. Will the Chair of the Committee provide reassurances that tackling all forms of illegal, harmful and exploitative content will be prioritised in the Bill, so that we can protect young children, and many others who are vulnerable?

The hon. Gentleman is absolutely correct to highlight that point. There is an issue about content that is deliberately manipulated in order to avoid moderation. Effectively, it is content that just manages to evade the algorithms, but is there as a signpost to abuse, or is a means of taking people off one platform and on to another that is not a tier-1 platform and that may be less regulated. It is crucial that that is clamped down on as soon as possible, so that we can protect children in the way that he and I—and, I am sure, all Members of the House—wish to do.

I thank the Minister for his comments. He is very engaged in the process and shows due respect to the Joint Committee and the Select Committee both in terms of our work and through his engagement. That is very welcome and is a reminder of times past.

I welcome the Government’s listening mode. The message from both sides of the House must be that we can all contribute as much as possible and that this should not be about party lines. This legislation is too important to get bogged down in issues such as that, because it is about the protection of our society, our democracy, our children and our mental health.