That is very helpful.
I am concerned that removing so-called illegal content for the purpose of complying with the regulatory system covers not only that which reaches conviction in a criminal court but possibly anything that a platform determines could be illegal, and therefore it undermines our own legal system. As I have said, that marks a significant departure from the rule of law. It seems that the state is asking or mandating private companies to make determinations about what constitutes illegality.
The obligations on a platform to determine what constitutes illegality could obviously become a real problem, particularly in relation to limitations on free expression. As we have already heard, the Public Order Act 1986 criminalises, for example, those who stir up hatred through the use of words, behaviour or written material. That is contentious in the law offline. By “contentious”, I mean that it is a matter of difficulty that requires the full rigour of the criminal justice system, understanding the whole history of established case law. That is all necessary to make a conviction under that law for offences of this nature.
Now we appear to be saying that, without any of that, social media companies should make the decision, which is a nerve-racking situation to be in. We have already heard the slippery phrase “reasonable grounds to infer”. If that was the basis on which you were sent to prison—if they did not have to prove that you were guilty but they had reasonable grounds to infer that you might be, without any evidence—I would be worried, yet reasonable grounds to infer that the content could be illegal is the basis on which we are asking for those decisions to be made. That is significantly below the ordinary burden of proof required to determine that an illegal act has been committed. Under this definition, I fear that platforms will be forced to overremove and censor what ultimately will be entirely lawful speech.
Can the Minister consider what competency social media companies have to determine what is lawful? We have heard some of the dilemmas from somebody who was in that position—let alone the international complications, as was indicated. Will all these big tech companies have to employ lots of ex-policemen and criminal lawyers? How will it work? It seems to me that there is a real lack of qualifications in that sphere—
that is not a criticism, because those people decided to work in big tech, not in criminal law, and yet we are asking them to pursue this. That is a concern.
I will also make reference to what I think are the controversies around government Amendments 136A and 136B to indicate the difficulties of these provisions. They concern illegal activity—such as “assisting unlawful immigration”, illegal entry, human trafficking and similar offences—but I am unsure as to how this would operate. While it is the case that certain entrances to the UK are illegal, I suddenly envisage a situation where a perfectly legitimate political debate—for example, about the small boats controversy—would be taken down, and that people advocating for a position against the Government’s new Illegal Migration Bill could be accused of supporting illegality. What exactly will be made illegal in those amendments to the Online Safety Bill?
The noble Baroness, Lady Buscombe, made a fascinating speech about an interesting group of amendments. Because of the way the amendments are grouped, I feel that we have moved to a completely different debate, so I will not go into any detail on this subject. Anonymous trolling, Twitter storms and spreading false information are incredibly unpleasant. I am often the recipient of them—at least once a week—so I know personally that you feel frustrated that people tell lies and your reputation is sullied. However, I do not think that these amendments offer the basis on which that activity should be censored, and I will definitely argue against removing anonymity clauses—but that will be in another group. It is a real problem, but I do not think that the solution is contained in these amendments.