PARLIAMENTARY DEBATE
Online Safety Bill (Ninth sitting) - 14 June 2022 (Commons/Public Bill Committees)

I beg to move amendment 84, in clause 40, page 38, line 5, leave out subsection (a).

This amendment would remove the ability of the Secretary of State to modify Ofcom codes of practice ‘for reasons of public policy’.

Amendment 84 is very simple: it removes one sentence—

“for reasons of public policy”.

Of all the correspondence that I have had on the Bill—there has been quite a lot—this is the clause that has most aggrieved the experts. A coalition of groups with a broad range of interests, including child safety, human rights, women and girls, sport and democracy, all agree that the Secretary of State is granted excessive powers in the Bill, and that it threatens the independence of the independent regulator. Businesses are also wary of this power, in part due to the uncertainty that it causes.

The reduction of Ministers’ powers under the Bill was advised by the Joint Committee on the draft Bill and by the Digital, Culture, Media and Sport Committee. I am sure that the two hon. Members on the Government Benches who sat on those Committees and added their names to their reports—the hon. Members for Watford and for Wolverhampton North East—will vote for the amendment. How could they possibly have put their names to the Select Committee report and the Joint Committee report and then just a few weeks later decide that they no longer support the very proposals that they had advanced?

Could the Minister inform us which special interest groups specifically have backed the Secretary of State’s public policy powers under the Bill? I am fascinated to know. Surely, all of us believe in public policy that is informed by expert evidence. If the Secretary of State cannot produce any experts at all who believe that the powers that she enjoys are appropriate or an advantage, or improve legislation, then we should not be proceeding in the way that we are. Now that I know that our proceedings are being broadcast live, I also renew my call to anyone watching who is in favour of these powers as they are to say so, because so far we have found no one who holds that position.

We should be clear about exactly what these powers do. Under clause 40, the Secretary of State can modify the draft codes of practice, thus allowing the Government a huge amount of power over the independent communications regulator. The Government have attempted to play down these powers by stating that they would be used only in exceptional circumstances. However, the legislation does not define what “exceptional circumstances” means, and it is far too nebulous a term for us to proceed under the current circumstances. Rather, a direction can reflect public policy. Will the Minister also clarify the difference between “public policy” and “government policy”, which was the wording in the draft Bill?

The regulator must not be politicised in this way. Regardless of the political complexion of the Government, when they have too much influence over what people can say online, the implications for freedom of speech are grave, especially when the content that they are regulating is not illegal. I ask the Minister to consider how he would feel if, rather than being a Conservative, the Culture Secretary came from among my friends on the Labour Benches. I would argue that that would be a significant improvement, but I imagine that the Minister would not. I see from his facial expression that that is the case.

There are ways to future-proof and enhance the transparency of Ofcom in the Bill that do not require the overreach of these powers. When we are allowing the Executive powers over the communications regulator, the protections must be absolute and iron-clad. As it stands, the Bill leaves leeway for abuse of these powers. No matter how slim a chance the Minister feels that there is of that, as parliamentarians we must not allow it. That is why I urge the Government to consider amendment 84.

As somebody who is new to these proceedings, I think it would be nice if, just for once, the Government listened to arguments and were prepared to accept them, rather than us going through this Gilbert and Sullivan pantomime where we advance arguments, we vote and we always lose. The Minister often says he agrees with us, but he still rejects whatever we say.

Good morning, Ms Rees; it is, as always, a pleasure to serve under your chairship.

Amendment 84 would remove the Secretary of State’s ability to modify Ofcom codes of practice

“for reasons of public policy”.

Labour agrees with the Carnegie UK Trust assessment of this: the codes are the fulcrum of the regulatory regime and it is a significant interference in Ofcom’s independence. Ofcom itself has noted that the “reasons of public policy” power to direct might weaken the regime. If Ofcom has undertaken a logical process, rooted in evidence, to arrive at a draft code, it is hard to see how a direction based on “reasons of public policy” is not irrational. That then creates a vulnerability to legal challenge.

On clause 40 more widely, the Secretary of State should not be able to give Ofcom specific direction on non-strategic matters. Ofcom’s independence in day-to-day decision making is paramount to preserving freedom of expression. Independence of media regulators is the norm in developed democracies. The UK has signed up to many international statements in that vein, including as recently as April 2022 at the Council of Europe. That statement says that

“media and communication governance should be independent and impartial to avoid undue influence on policy making, discriminatory treatment and preferential treatment of powerful groups, including those with significant political or economic power.”

The Bill introduces powers for the Secretary of State to direct Ofcom on internet safety codes. These provisions should immediately be removed. After all, in broadcasting regulation, Ofcom is trusted to make powerful programme codes with no interference from the Secretary of State. Labour further notes that although the draft Bill permitted this

“to ensure that the code of practice reflects government policy”,

clause 40 now specifies that any code may be required to be modified

“for reasons of public policy”.

Although that is more normal language, it is not clear what in practice the difference in meaning is between the two sets of wording. I would be grateful if the Minister could confirm what that is.

The same clause gives the Secretary of State powers to direct Ofcom, on national security or public safety grounds, in the case of terrorism or CSEA—child sexual exploitation and abuse—codes of practice. The Secretary of State might have some special knowledge of those, but the Government have not demonstrated why they need a power to direct. In the broadcasting regime, there are no equivalent powers, and the Secretary of State was able to resolve the case of Russia Today, on national security grounds, with public correspondence between the Secretary of State and Ofcom.

It was mentioned earlier that some of us were on previous Committees that made recommendations more broadly that would perhaps be in line with the amendment. Since that time, there has been lots of discussion around this topic, and I have raised it with the Minister and colleagues. I feel reassured that there is a great need to keep the clause as is because of the fact that exceptional circumstances do arise. However, I would like reassurances that directions would be made only in exceptional circumstances and would not override the Ofcom policy or remit, as has just been discussed.

I am intrigued, as I am sure viewers will be. What is the new information that has come forward since December that has resulted in the Minister believing that he must stick with this? He has cited new information and new evidence, and I am dying to know what it is.

Before my hon. Friend moves on, can I ask a point of clarification? The hon. Member for Ochil and South Perthshire is right that this is an important point, so we need to understand it thoroughly. I think he makes a compelling argument about the exceptional circumstances. If Ofcom did not agree that a change that was being requested was in line with what my hon. Friend the Minister has said, how would it be able to discuss or, indeed, challenge that?

Before the Minister moves off the point about exceptional circumstances, it was the case previously that an amendment of the law resolution was always considered with Finance Bills. In recent years, that has stopped on the basis of it being exceptional circumstances because a general election was coming up. Then the Government changed that, and now they never table an amendment of the law resolution because they have decided that that is a minor change. Something has gone from being exceptional to being minor, in the view of this Government.

The Minister said that he envisions that this measure will be used only in exceptional circumstances. Can he commit himself to it being used only in exceptional circumstances? Can he give the commitment that he expects that it will be used only in exceptional circumstances, rather than simply envisioning that it will be used in such circumstances?

Hear, hear.

I beg to move amendment 89, in clause 49, page 45, line 16, leave out subsection (e).

This amendment would remove the exemption for comments below news articles posted online.

Thank you, Ms Rees, for your hard work in chairing the Committee this morning; we really appreciate it. Amendment 89 relates to below-the-line comments on newspaper articles. For the avoidance of doubt, if we do not get amendment 89, I am more than happy to support the Labour party’s amendment 43, which has a similar effect but covers slightly fewer—or many fewer—organisations and places.

Below-the-line comments in newspaper articles are infamous. They are places that everybody fears to go. They are worse than Twitter. In a significant number of ways, below-the-line comments are an absolute sewer. I cannot see any reasonable excuse for them to be excluded from the Bill. We are including Twitter in the Bill; why are we not including below-the-line comments for newspapers? It does not make any sense to me; I do not see any logic.

We heard a lot of evidence relating to freedom of speech and a free press, and I absolutely, wholeheartedly agree with that. However, the amendment would not stop anyone writing a letter to the editor. It would not stop anyone engaging with newspapers in the way that they would have in the print medium. It would still allow that to happen; it would just ensure that below-the-line comments were subject to the same constraints as posts on Twitter. That is the entire point of amendment 89.

I do not think that I need to say much more, other than to add one more thing about the direction by comments to other, more radical and extreme pieces, or bits of information. It is sometimes the case that the comments on a newspaper article will direct people to even more extreme views. The newspaper article itself may be just slightly derogatory, while some of the comments may have links or references to other pieces, and other places on the internet where people can find a more radical point of view. That is exactly what happens on Twitter, and is exactly some of the stuff that we are trying to avoid—sending people down an extremist rabbit hole. I do not understand how the Minister thinks that the clause, which excludes below the line newspaper comments, is justifiable or acceptable.

Having been contacted by a number of newspapers, I understand and accept that some newspapers have moderation policies for their comments sections, but that is not strong enough. Twitter has a moderation policy, but that does not mean that there is actually any moderation, so I do not think that subjecting below-the-line comments to the provisions of the Bill is asking too much. It is completely reasonable for us to ask for this to happen, and I am honestly baffled as to why the Minister and the Government have chosen to make this exemption.

Before I address the amendments, I will speak to clause 49 more broadly.

Labour has concerns about a number of subsections of the clause, including subsections (2), and (8) to (10)— commonly known as the news publisher content exemption, which I have spoken about previously. We understand that the intention of the exemption is to shield broadcasters and traditional newspaper publishers from the Bill’s regulatory effects, clause 50(2) defines a “recognised news publisher” as a regulated broadcaster or any other publisher that publishes news, has an office, and has a standards code and complaints process. There is no detail about the latter two requirements, thus enabling almost any news publishing enterprise to design its own code and complaints process, however irrational, and so benefit from the exemption. “News” is also defined broadly, and may include gossip. There remains a glaring omission, which amendment 43 addresses and which I will come to.

During an earlier sitting of the Committee, in response to comments made by my hon. Friend the Member for Liverpool, Walton as we discussed clause 2, the Minister claimed that

“The metaverse is a good example, because even though it did not exist when the structure of the Bill was conceived, anything happening in the metaverse is none the less covered by the Bill. Anything that happens in the metaverse that is illegal or harmful to children, falls into the category of legal but harmful to adults, or indeed constitutes pornography will be covered because the Bill is tech agnostic.”––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 204.]

Clause 49 exempts one-to-one live aural communications from the scope of regulation. Given that much interaction in virtual reality is live aural communication, including between two users, it is hard to understand how that would be covered by the Bill.

There is also an issue about what counts as content. Most standard understandings would define “content” as text, video, images and audio, but one of the worries about interactions in VR is that behaviour such as physical violence will be able to be replicated virtually, with psychologically harmful effects. It is very unclear how that would be within the scope of the current Bill, as it does not clearly involve content, so could the Minister please address that point? As he knows, Labour advocates for a systems-based approach, and for risk assessments and systems to take place in a more upstream and tech-agnostic way than under the current approach. At present, the Bill would struggle to be expanded effectively enough to cover those risks.

Amendment 43 removes comments sections operated by news websites where the publisher has a UK turnover of more than £100 million from the exemption for regulated user-generated comment. If the Bill is to be effective in protecting the public from harm, the least it must accomplish is a system of accountability that covers all the largest platforms used by British citizens. Yet as drafted, the Bill would exempt some of the most popular social media platforms online: those hosted on news publisher websites, which are otherwise known as comments sections. The amendment would close that loophole and ensure that the comments sections of the largest newspaper websites are subject to the regime of regulation set out in the Bill.

Newspaper comments sections are no different from the likes of Facebook and Twitter, in that they are social media platforms that allow users to interact with one another. This is done through comments under stories, comments in response to other comments, and other interactions—for example, likes and dislikes on posts. In some ways, their capacity to cause harm to the public is even greater: for example, their reach is in many cases larger than even the biggest of social media platforms. Whereas there are estimated to be around 18 million users of Twitter in the UK, more than twice that number of British citizens access newspaper websites every month, and the harm perpetuated on those platforms is severe.

In July 2020, the rapper Wiley posted a series of antisemitic tweets, which Twitter eventually removed after an unacceptable delay of 48 hours, but under coverage of the incident in The Sun newspaper, several explicitly antisemitic comments were posted. Those comments contained holocaust denial and alleged a global Jewish conspiracy to control the world. They remained up and accessible to The Sun’s 7 million daily readers for the best part of a week. If we exempt comments sections from the Bill’s proposed regime and the duties that the Bill sets for platforms, we will send the message that that kind of vicious, damaging and harmful racism is acceptable.

Similarly, after an antisemitic attack in the German city of Halle, racists comments followed in the comments section under the coverage in The Sun. There are more examples: Chinese people being described as locusts and attacked with other racial slurs; 5G and Bill Gates conspiracy theories under articles on the Telegraph website; and of course, the most popular targets for online abuse, women in public life. Comments that described the Vice-President of the United States as a “rat” and “ho” appeared on the MailOnline. A female union leader has faced dozens of aggressive and abusive comments about her appearance, and many of such comments remain accessible on newspaper comments sections to this day. Some of them have been up for months, others for years.

Last week, the Committee was sent a letter from a woman who was the victim of comments section abuse, Dr Corinne Fowler. Dr Fowler said of the comments that she received:

“These comments contained scores of suggestions about how to kill or injure me. Some were general ideas, such as hanging, but many were gender specific, saying that I should be burnt at the stake like a witch. Comments focused on physical violence, one man advising that I should slapped hard enough to make my teeth chatter”.

She added:

“I am a mother: without me knowing, my son (then 12 years old) read these reader comments. He became afraid for my safety.”

Without the amendment, the Bill cannot do anything to protect women such as Dr Fowler and their families from this vile online abuse, because comments sections will be entirely out of scope of the Bill’s new regime and the duties designed to protect users.

As I understand it, two arguments have been made to support the exemption. First, it is argued that the complaints handlers for the press already deal with such content, but the handler for most national newspapers, the Independent Press Standards Organisation, will not act until a complaint is made. It then takes an average of six months for a complaint to be processed, and it cannot do anything if the comments have not been moderated. The Opposition do not feel that that is a satisfactory response to the seriousness of harms that we know to occur, and which I have described. IPSO does not even have a code to deal with cases of antisemitic abuse that appeared on the comments section of The Sun. IPSO’s record speaks for itself from the examples that I have given, and the many more, and it has proven to be no solution to the severity of harms that appear in newspaper comments sections.

The second argument for an exemption is that publishers are legally responsible for what appears on comments sections, but that is only relevant for illegal harms. For everything else, from disinformation to racial prejudice and abuse, regulation is needed. That is why it is so important that the Bill does the job that we were promised. To keep the public safe from harm online, comments sections must be covered under the Bill.

The amendment is a proportionate solution to the problem of comments section abuse. It would protect user’s freedom of expression and, given that it is subject to a turnover threshold, ensure that duties and other requirements do not place a disproportionate burden on smaller publishers such as locals, independents and blogs.

I have reams and reams and reams of examples from comments sections that all fall under incredibly harmful abuse and should be covered by the Bill. I could be here for hours reading them all out, and while I do not think that anybody in Committee would like me to, I urge Committee members to take a look for themselves at the types of comments under newspaper articles and ask themselves whether those comments should be covered by the terms of the Bill. I think they know the answer.

On a point of order, Ms Rees. Are we considering clause 49 now? I know that it is supposed to considered under the next set of amendments, but I just wondered, because I have separate comments to make on that clause that I did not make earlier because I spoke purely to the amendment.

I am happy to speak on clause 49 now—I can see the Minister is nodding. I really appreciate it, Ms Rees, because I did not want to lose the opportunity to raise concerns about this matter. I have not tabled an amendment but I would appreciate it if the Minister gave consideration to my following comments.

My concern relates to subsection (5) of clause 49, which exempts one-to-one live aural communications in relation to user-to-user services. My concern relates to child sexual abuse and grooming. I am worried that exempting those one-to-one live aural communications allows bad actors, people who are out to attack children, a loophole to do that. We know that on games such as Fortnite, one-to-one aural communication happens.

I am not entirely sure how communication happens on Roblox and whether there is an opportunity for that there. However, we also know that a number of people who play online games have communication on Discord at the same time. Discord is incredibly popular, and we know that there is an opportunity for, and a prevalence of, grooming on there. I am concerned that exempting this creates a loophole for people to attack children in a way that the Minister is trying to prevent with the Bill. I understand why the clause is there but am concerned that the loophole is created.

I am sorry, but I am having real trouble buying that argument. If the Minister is saying that newspaper comments sections are exempt in order to protect the free press because they are an integral part of it, why do we need the Bill in the first place? Social media platforms could argue in the same way that they are protecting free speech. They could ask, “Why should we regulate any comments on our social media platform if we are protecting free speech?” I am sorry; that argument does not wash.

This issue comes down to a fundamental point—are we looking at volume or risk? There is no difference between an individual—a young person in this instance—seeing something about suicide or self-harm on a Facebook post or in the comments section of a newspaper article. The volume—whether it goes viral or not—does not matter if that individual has seen that content and it has directed them to somewhere that will create serious harm and lead them towards dangerous behaviour. The volume is not the point.

I have a question on anonymity. On social media there will be a requirement to verify users’ identities, so if somebody posts on Twitter that they want to lynch me, it is possible to find out who that is, provided they do not have an anonymous account. There is no such provision for newspaper comment sections, so I assume it would be much more difficult for the police to find them, or for me not to see anonymous comments that threaten my safety below the line of newspaper articles—comments that are just as harmful, which threaten my safety on social media. Can the Minister can convince me otherwise?

On that point, when it comes to definition of content, we have tabled an amendment about “any other content”. I am not convinced that the definition of content adequately covers what the Minister stated, because it is limited, does not include every possible scenario where it is user-generated and is not future-proofed enough. When we get to that point, I would appreciate it if the Minister would look at the amendment and ensure that what he intends is what happens.

I will let the Minister know in a moment.

During the Joint Committee we were concerned about future-proofing. Although I appreciate it is not specifically included in the Bill because it is a House matter, I urge the setting up of a separate Online Safety Act committee that runs over time, so that it can continue to be improved upon and expanded, which would add value. We do not know what the next metaverse will be in 10 years’ time. However, I feel confident that the metaverse was included and I am glad that the Minister has confirmed that.

The amendment that the Minister is asking about is to clause 189, which states:

“‘content’ means anything communicated by means of an internet service, whether publicly or privately, including written material or messages, oral communications, photographs, videos, visual images, music and data of any description”.

It is amendment 76 that, after “including”, would insert “but not limited to”, in order that the Bill is as future-proofed as it can be.

I intervene rather than making a subsequent substantive contribution because I am making a very simple point. My hon. Friend the Minister is making a really compelling case about the need for freedom of speech and the need to protect it within the context of newspapers online. However, could he help those who might be listening to this debate today to understand who is responsible if illegal comments are made on newspaper websites? I know that my constituents would be concerned about that, not particularly if illegal comments were made about a Member of Parliament or somebody else in the public eye, but about another individual not in the public eye.

What redress would that individual have? Would it be to ask the newspaper to take down that comment, or would it be that they could find out the identity of the individual who made the comment, or would it be that they could take legal action? If he could provide some clarity on that, it might help Committee members to understand even further why he is taking the position that he is taking.

That is helpful for understanding the rationale, but in the light of how people communicate online these days, although exempting telephone conversations makes sense, exempting what I am talking about does not. I would appreciate it if the Minister came back to me on that, and he does not have to give me an answer now. It would also help if he explained the difference between “aural” and “oral”, which are mentioned at different points in the Bill.

I beg to move amendment 107, in clause 50, page 46, line 46, leave out from end to end of clause and insert

“is a member of an approved regulator (as defined in section 42 of the Crime and Courts Act 2013).”

This amendment expands the definition of a recognised news publisher to incorporate any entity that is a member of an approved regulator.

The primary purpose of the Bill is to protect social media users from harm, and it will have failed if it does not achieve that. Alongside that objective, the Bill must protect freedom of expression and, in particular, the freedom of the press, which I know we are all committed to upholding and defending. However, in evaluating the balance between freedom of the press and the freedom to enjoy the digital world without encountering harm, the Bill as drafted has far too many loopholes and risks granting legal protection to those who wish to spread harmful content and disinformation in the name of journalism.

Amendment 107 will address that imbalance and protect the press and us all from harm. The media exemption in the Bill is a complete exemption, which would take content posted by news publishers entirely out of the scope of platforms’ legal duties to protect their users. Such a powerful exemption must be drafted with care to ensure it is not open to abuse. However, the criteria that organisations must meet to qualify for the exemption, which are set out in clause 50, are loose and, in some cases, almost meaningless. They are open to abuse, they are ambiguous and they confer responsibility on the platforms themselves to decide which publishers meet the Bill’s criteria and which do not.

In evidence that we heard recently, it was clear that the major platforms do not believe it is a responsibility they should be expected to bear, nor do they have the confidence or feel qualified to do so. Furthermore, David Wolfe, chairman of the Press Recognition Panel, has advised that the measure represents a threat to press freedom. I agree.

Opening the gates for any organisation to declare themselves a news publisher by obtaining a UK address, jotting down a standards code on the back of an envelope and inviting readers to send an email if they have any complaints is not defending the press; it is opening the profession up to abuse and, in the long term, risks weakening its rights and protections.

Let us discuss those who may wish to exploit that loophole and receive legal protection to publish harmful content. A number of far-right websites have made white supremacist claims and praised Holocaust deniers. Those websites already meet several of the criteria for exemption and could meet the remaining criteria overnight. The internet is full of groups that describes themselves as news publishers but distribute profoundly damaging and dangerous material designed to promote extremist ideologies and stir up hatred.

We can all think of high-profile individuals who use the internet to propagate disinformation, dangerous conspiracy theories and antisemitic, Islamophobic, homophobic or other forms of abuse. They might consider themselves journalists, but the genuine professionals whose rights we want to protect beg to differ. None of those individuals should be free to publish harmful material as a result of exemptions that are designed for quite a different purpose. Is it really the Government’s intention that any organisation that meets their loose criteria, as defined in the Bill, should be afforded the sacrosanct rights and freedoms of the press that we all seek to defend?

I turn to disinformation, and to hostile state actors who wish to sow the seeds of doubt and division in our politics and our civic life. The Committee has already heard that Russia Today is among those expected to benefit from the exemption. I have a legal opinion from Tamsin Allen, a senior media lawyer at Bindmans LLP, which notes that,

“were the bill to become law in its present form, Russia Today would benefit from the media exemption. The exemption for print and online news publications is so wide that it would encompass virtually all publishers with multiple contributors, an editor and some form of complaints procedure and standards code, no matter how inadequate. I understand that RT is subject to a standards code in Russia and operates a complaints procedure. Moreover, this exemption could also apply to a publisher promoting hate or violence, providing it met the (minimal) standards set out in the bill and constituted itself as a ‘news’ or ‘gossip’ publication. The only such publications which would not be exempt are those published by organisations proscribed under the Terrorism Act.”

If hostile foreign states can exploit this loophole in the Bill to spread disinformation to social media users in the UK, that is a matter of national security and a threat to our freedom and open democracy. The requirement to have a UK address offers little by way of protection. International publishers spreading hate, disinformation or other forms of online harm could easily set up offices in the UK to qualify for this exemption and instantly make the UK the harm capital of the world. For those reasons, the criteria must change.

We heard from several individuals in evidence that the exemption should be removed entirely from the Bill, but we are committed to freedom of the press as well as providing proper protections from harm. Instead of removing the exemption, I propose a change to the qualifying criteria to ensure that credible publishers can access it while extremist and harmful publishers cannot.

My amendment would replace the convoluted list of requirements with a single and simple requirement for the platforms to follow and adhere to: that all print and online media that seeks to benefit from the exemption should be independently regulated under the royal charter provisions that this House has already legislated for. If, as the Bill already says, broadcast media should be defined in this way, why not print media too? Unlike the Government’s criteria, the likes of Russia Today, white supremacist blogs and other deeply disturbing extremist publications simply could not satisfy this requirement. If they were ever to succeed in signing up to such a regulator, they would swiftly be expelled for repeated standards breaches.

I will not push the amendment to a vote, but it is important to continue this conversation, and I encourage the Minister to consider the matter as the Bill proceeds. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 86, in clause 50, page 47, line 3, after “material” insert—

“or special interest news material”.

In its current form, the Online Safety Bill states that platforms do not have any duties relating to content from recognised media outlets and new publishers, and the outlets’ websites are also exempt from the scope of the Bill. However, the way the Bill is drafted means that hundreds of independently regulated specialist publishers’ titles will be excluded from the protections afforded to recognised media outlets and news publishers. This will have a long-lasting and damaging effect on an indispensable element of the UK’s media ecosystem.

Specialist publishers provide unparalleled insights into areas that broader news management organisations will likely not analyse, and it would surely be foolish to dismiss and damage specialist publications in a world where disinformation is becoming ever more prevalent. The former Secretary of State, the right hon. Member for Maldon (Mr Whittingdale), also raised this issue on Second Reading, where he stated that specialist publishers

“deserve the same level of protection.”—[Official Report, 19 April 2022; Vol. 712, c. 109.]

Part of the rationale for having the news publishers exemption in the Bill is that it means that the press will not be double-regulated. Special interest material is already regulated, so it should benefit from the same exemptions.

I would be delighted to do so. I am talking about specific and occasionally niche publications. Let us take an example. Gardeners’ World is not exactly a hotbed of online harm, and nor is it a purveyor of disinformation. It explains freely which weeds to pull up and which not to, without seeking to confuse people in any way. Under the Bill, however, such publications will be needlessly subjected to rules, creating a regulatory headache for the sector. This is a minor amendment that will help many businesses, and I would be interested to hear from the Minister why the Government will not listen to the industry on this issue.

No, I will let that particular weed die in the bed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Briefly, as with earlier clauses, the Labour party recognises the challenge in finding the balance between freedom of expression and keeping people safe online. Our debate on the amendment has illustrated powerfully that the exemptions as they stand in the Bill are hugely flawed.

First, the exemption is open to abuse. Almost any organisation could develop a standards code and complaints process to define itself as a news publisher and benefit from the exemption. Under those rules, as outlined eloquently by my hon. Friend the Member for Batley and Spen, Russia Today already qualifies, and various extremist publishers could easily join it. Organisations will be able to spread seriously harmful content with impunity—I referred to many in my earlier contributions, and I have paid for that online.

Secondly, the exemption is unjustified, as we heard loud and clear during the oral evidence sessions. I recall that Kyle from FairVote made that point particularly clearly. There are already rigorous safeguards in the Bill to protect freedom of expression. The fact that content is posted by a news provider should not itself be sufficient reason to treat such content differently from that which is posted by private citizens.

Furthermore, quality publications with high standards stand to miss out on the exemption. The Minister must also see the lack of parity in the broadcast media space. In order for broadcast media to benefit from the exemption, they must be regulated by Ofcom, and yet there is no parallel stipulation for non-broadcast media to be regulated in order to benefit. How is that fair? For broadcast media, the requirement to be regulated by Ofcom is simple, but for non-broadcast media, the series of requirements are not rational, exclude many independent publishers and leave room for ambiguity.

I have a couple of questions that were probably too long for interventions. The Minister said that if comments on a site are the only user-generated content, they are not in scope. It would be really helpful if he explained what exactly he meant by that. We were talking about services that do not fall within the definition of “recognised news publishers”, because we were trying to add them to that definition. I am not suggesting that the Minister is wrong in any way, but I do not understand where the Bill states that those comments are excluded, and how this all fits together.

Labour does not oppose the intention of the clause. It is important to define “search content” in order to understand the responsibilities that fall within search services’ remits.

However, we have issues with the way that the Bill treats user-to-user services and search services differently when it comes to risk-assessing and addressing legal harm—an issue that we will come on to when we debate schedule 10. Although search services rightly highlight that the content returned by a search is not created or published by them, the algorithmic indexing, promotion and search prompts provided in search bars are fundamentally their responsibility. We do, however, accept that over the past 20 years, Google, for example, has developed mechanisms to provide a safer search experience for users while not curtailing access to lawful information. We also agree that search engines are critical to the proper functioning of the world wide web; they play a uniquely important role in facilitating access to the internet, and enable people to access, impart, and disseminate information.

Question put and agreed to.

Clause 51 accordingly ordered to stand part of the Bill.

Clause 52

“Illegal content” etc

I beg to move amendment 61, in clause 52, page 49, line 5, at end insert—

“(4A) An offence referred to in subsection (4) is deemed to have occurred if it would be an offence under the law of the United Kingdom regardless of whether or not it did take place in the United Kingdom.”

This amendment brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.

With your permission, Ms Rees, I will speak to clause 52 before coming to amendment 61. Illegal content is defined in clause 52(2) as

“content that amounts to a relevant offence.”

However, as the Minister will know from representations from Carnegie UK to his Department—we share its concerns—the illegal and priority illegal regimes may not be able to operate as intended. The Bill requires companies to decide whether content “amounts to” an offence, with limited room for movement. We share concerns that that points towards decisions on an item-by-item basis; it means detecting intent for each piece of content. However, such an approach does not work at the scale on which platforms operate; it is bad regulation and poor risk management.

There seem to be two different problems relating to the definition of “illegal content” in clause 52. The first is that it is unclear whether we are talking about individual items of content or categories of content—the word “content” is ambiguous because it can be singular or plural—which is a problem for an obligation to design and run a system. Secondly, determining when an offence has taken place will be complex, especially bearing in mind mens rea and defences, so the providers are not in a position to get it right.

The use of the phrase “amounts to” in clause 52(2) seems to suggest that platforms will be required to identify accurately, in individual cases, where an offence has been committed, without any wriggle room drafted in, unlike in the draft Bill. As the definition now contains no space for error either side of the line, it could be argued that there are more incentives to avoid false negatives than false positives—providers can set higher standards than the criminal law—and that leads to a greater risk of content removal. That becomes problematic, because it seems that the obligation under clause 9(3) is then to have a system that is accurate in all cases, whereas it would be more natural to deal with categories of content. This approach seems not to be intended; support for that perspective can be drawn from clause 9(6), which recognises that there is a distinction between categories of content and individual items, and that the application of terms of service might specifically have to deal with individual instances of content. Critically, the “amounts to” approach cannot work in conjunction with a systems-based approach to harm reduction. That leaves victims highly vulnerable.

This problem is easily fixed by a combination of reverting to the draft Bill’s language, which required reasonableness, and using concepts found elsewhere in the Bill that enable a harm mitigation system to operate for illegal content. We also remind the Minister that Ofcom raised this issue in the evidence sessions. I would be grateful if the Minister confirmed whether we can expect a Government amendment to rectify this issue shortly.

More broadly, as we know, priority illegal content, which falls within illegal content, includes,

“(a) terrorism content,

(b) CSEA content, and

(c) content that amounts to an offence specified in Schedule 7”,

as set out in clause 52(7). Such content attracts a greater level of scrutiny and regulation. Situations in which user-generated content will amount to “a relevant offence” are set out in clause 52(3). Labour supports the inclusion of a definition of illegal content as outlined in the grouping; it is vital that service providers and platforms have a clear indication of the types of content that they will have a statutory duty to consider when building, or making changes to the back end of, their business models.

We have also spoken about the importance of parity between the online and offline spaces—what is illegal offline must be illegal online—so the Minister knows we have more work to do here. He also knows that we have broad concerns around the omissions in the Bill. While we welcome the inclusion of terrorism and child sexual exploitation content as priority illegal content, there remain gaps in addressing violence against women and girls content, which we all know is hugely detrimental to many online.

The UK Government stated that their intention for the Online Safety Bill was to make the UK the safest place to be online in the world, yet the Bill does not mention online gender-based violence once. More than 60,000 people have signed the Glitch and End Violence Against Women Coalition’s petition calling for women and girls to be included in the Bill, so the time to act is now. We all have a right to not just survive but thrive, engage and play online, and not have our freedom of expression curtailed or our voices silenced by perpetrators of abuse. The online space is just as real as the offline space. The Online Safety Bill is our opportunity to create safe digital spaces.

The Bill must name the problem. Violence against women and girls, particularly those who have one or multiple protected characteristics, is creating harm and inequality online. We must actively and meaningfully name this issue and take an intersectional approach to ending online abuse to ensure that the Bill brings meaningful change for all women. We also must ensure that the Bill truly covers all illegal content, whether it originated in the UK or not.

Amendment 61 brings offences committed overseas within the scope of relevant offences for the purposes of defining illegal content. The aim of the amendment is to clarify whether the Bill covers content created overseas that would be illegal if what was shown in the content took place in the UK. For example, animal abuse and cruelty content is often filmed abroad. The same can be said for dreadful human trafficking content and child sexual exploitation. The optimal protection would be if the Bill’s definition of illegal content covered matter that would be illegal in either the UK or the country it took place in, regardless of whether it originated in the UK.

I do not intend to make a speech, but I want to let the hon. Lady know that we wholeheartedly support everything that she has said on the clause and amendment 61.

I am grateful for the hon. Member’s contribution, and for her support for the amendment and our comments on the clause.

The Bill should be made clearer, and I would appreciate an update on the Minister’s assessment of the provisions in the Bill. Platforms and service providers need clarity if they are to take effective action against illegal content. Gaps in the Bill give rise to serious questions about the overwhelming practical challenges of the Bill. None of us wants a two-tier internet, in which user experience and platforms’ responsibilities in the UK differ significantly from those in the rest of the world. Clarifying the definition of illegal content and acknowledging the complexity of the situation when content originates abroad are vital if this legislation is to tackle wide-ranging, damaging content online. That is a concern I raised on Second Reading, and a number of witnesses reiterated it during the oral evidence sessions. I remind the Committee of the comments of Kevin Bakhurst from Ofcom, who said:

“We feel it is really important—hopefully this is something the Committee can contribute to—that the definition of ‘illegal content’ is really clear for platforms, and particularly the area of intent of illegality, which at the moment might be quite tricky for the platforms to pick up on.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 8, Q7.]

That has been reiterated by myriad other stakeholders, so I would be grateful for the Minister’s comments.

I rise to speak on clause 52 stand part, particularly —the Minister will not be surprised—the element in subsection (4)(c) around the offences specified in schedule 7. The debate has been very wide ranging throughout our sittings. It is extraordinary that we need a clause defining what is illegal. Presumably, most people who provide goods and services in this country would soon go out of business if they were not knowledgeable about what is illegal. The Minister is helping the debate very much by setting out clearly what is illegal, so that people who participate in the social media world are under no illusion as to what the Government are trying to achieve through this legislation.

The truth is that the online world has unfolded without a regulatory framework. New offences have emerged, and some of them are tackled in the Bill, particularly cyber-flashing. Existing offences have taken on a new level of harm for their victims, particularly when it comes to taking, making and sharing intimate images without consent. As the Government have already widely acknowledged, because the laws on that are such a patchwork, it is difficult for the enforcement agencies in this country to adequately protect the victims of that heinous crime, who are, as the Minister knows, predominately women.

I thank the Minister for such a clear explanation of his plan. Can he confirm that the Bill is a suitable legislative vehicle? I cannot see why it would not be. I welcome his agreement about the need for additional legislation over and above the communications offence. In the light of the way that nudification software and deepfake are advancing, and the challenges that our law enforcement agencies have in interpreting those quite complex notions, a straightforward law making it clear that publishing such images is a criminal offence would not only help law enforcement agencies, but would help the perpetrators to understand that what they are doing is a crime and they should stop.

I am grateful to the Minister for his comments. The Labour party has concerns that clause 52(9) does not adequately get rid of the ambiguity around potential illegal online content. We feel that amendment 61 sets that out very clearly, which is why we will press it to a vote.

We just feel that amendment 61 outlines matters much more explicitly and leaves no ambiguity by clearly defining any

“offences committed overseas within the scope of relevant offences for the purposes of defining illegal content.”

No, it hasn’t. We did not get a chance to speak to either schedule 5 or schedule 6.