My Lords, this is indeed a huge, complex and courageous Bill which deserves widespread support. Despite some welcome government amendments during its passage in the other place, there are residual concerns about guarantees of freedom of expression and access to information, as well as the degree to which the regulator, Ofcom, is independent of government control.
It is widely acknowledged by the Government themselves and the majority of those who have spoken to the Bill that the right to free speech is a fundamental aspect of our democracy, and that any restriction must be fully justified in the public interest. Public interest includes the freedom to access unwelcome, unpopular and even offensive material, if only to be able to refute it. It is also accepted that a functioning democracy needs new ideas and robust debate. That said, it is a fine and difficult line to draw between offensive material and illegal content. In their efforts, the Government have sought to protect above all the safety of children.
I start with a presumption in favour of free speech and a multiplicity of voices. Clauses 18 and 28 state that providers must
“have particular regard to the … users’ right to freedom of expression”
and to protecting users from breaches of any laws relating to privacy. This would be achieved by rigorous impact assessments of safety measures and policies, any infringements of which must be made publicly available. However, the definition of democratically important material as information
“specifically intended to contribute to democratic political debate in the United Kingdom”
remains vague, and other strict requirements on protecting children in the Bill could condemn offensive but necessary democratic content.
Clause 160 refers to false information intended
“to cause non-trivial psychological or physical harm”.
It may, in many cases, be entirely obvious when such harm is intended, but not in all cases. On whom does the burden of proof lie and what recourse does an individual have to appeal false accusations?
The stricture that democratically important content be preserved is by no means fully guaranteed by the following powers set out in the Bill. There is a potential danger of undue restriction that lies in the degree of control from the Secretary of State and his or her relationship with Ofcom; the terms and conditions of service for category 1 providers; the options, or lack of them, for user control of online material; and the role of Parliament.
Draft codes of practice are to be submitted to the Secretary of State, who could require Ofcom to modify codes in the interests of national security or public safety. The Secretary of State will pass any statement on strategic priorities to Ofcom, but parliamentary approval would be by means only of the negative resolution procedure.
The Secretary of State can issue guidance and directions to Ofcom, which in turn has a crucial role in acting against a provider that is not complying with
the requirement to fulfil duties under the Act, including the imposition of fines of up to £18 million and “business disruption measures”—in other words, outright censorship. Although such drastic action could occur only in the case of a breach of the terms of service, there would be no restriction on taking down content to comply with other duties—for example, if it was judged that the content might be “likely” to be accessed by children. This, it is feared, would encourage providers to play safe. Furthermore, the terms and conditions can be altered at will by the provider.
The age verification process would necessarily require the user to register with a provider, preventing any casual access by adults. Furthermore, to remove unnecessary barriers to information, the controls available to the user should be a genuine option and not imposed by default.
This is a truly important Bill and I congratulate the authors and campaigners, as well as the Government, on bringing it to this advanced stage. I nevertheless believe that it could be further improved to ensure that the most liberal interpretations of online freedom of expression remain at the heart of our democracy.
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