I have tried to outline the Bill’s definition of content, which I think will give some reassurance that other concerns that noble Lords have raised are covered. I will turn in a moment to address priority and primary priority content, if the noble Baroness will allow me to do that, and then perhaps intervene again if I have not done so to her satisfaction. I want to set that out and try to keep track of all the questions which have been posed as I do so.
For now, I know there have been concerns from some noble Lords that if functionalities are not labelled as harm in the legislation they would not be addressed by providers, and I reassure your Lordships’ House that this is not the case. There is an important distinction between content and other risk factors such as, for instance, an algorithm, which without content cannot risk causing harm to a child. That is why functionalities are not covered by the categories of primary, priority and priority content which is harmful to children. The Bill sets out a comprehensive risk assessment process which will cover content or activity that poses a risk of harm to children and other factors, such as functionality, which may increase the risk of harm. As such, the existing children’s risk assessment criteria already cover many of the changes proposed in this amendment. For example, the duties already require service providers to assess the risk of harm to children from their business model and governance. They also require providers to
consider how a comprehensive range of functionalities affect risk, how the service is used and how the use of algorithms could increase the risks to children.
Turning to the examples of harmful content set out in the proposed new schedule, I am happy to reassure the noble Baroness and other noble Lords that the Government’s proposed list of primary, priority and priority content covers a significant amount of this content. In her opening speech she asked about cumulative harm—that is, content sent many times or content which is harmful due to the manner of its dissemination. We will look at that in detail on the next group as well, but I will respond to the points she made earlier now. The definition of harm in the Bill under Clause 205 makes it clear that physical or psychological harm may arise from the fact or manner of dissemination of the content, not just the nature of the content—content which is not harmful per se, but which if sent to a child many times, for example by an algorithm, would meet the Bill’s threshold for content that is harmful to children. Companies will have to consider this as a fundamental part of their risk assessment, including, for example, how the dissemination of content via algorithmic recommendations may increase the risk of harm, and they will need to put in place proportionate and age-appropriate measures to manage and mitigate the risks they identify. I followed the exchanges between the noble Baronesses, Lady Kidron and Lady Fox, and I make it clear that the approach set out by the Bill will mean that companies cannot avoid tackling the kind of awful content which Molly Russell saw and the harmful algorithms which pushed that content relentlessly at her.
This point on cumulative harm was picked up by my noble friend Lord Bethell. The Bill will address cumulative risk where it is the result of a combination of high-risk functionality, such as live streaming, or rewards in service by way of payment or non-financial reward. This will initially be identified through Ofcom’s sector risk assessments, and Ofcom’s risk profiles and risk assessment guidance will reflect where a combination of risk in functionalities such as these can drive up the risk of harm to children. Service providers will have to take Ofcom’s risk profiles into account in their own risk assessments for content which is illegal or harmful to children. The actions that companies will be required to take under their risk assessment duties in the Bill and the safety measures they will be required to put in place to manage the services risk will consider this bigger-picture risk profile.
The amendments of the noble Baroness, Lady Kidron, would remove references to primary priority and priority harmful content to children from the child risk assessment duties, which we fear would undermine the effectiveness of the child safety duties as currently drafted. That includes the duty for user-to-user providers to prevent children encountering primary priority harms, such as pornography and content that promotes self-harm or suicide, as well as the duty to put in place age-appropriate measures to protect children from other harmful content and activity. As a result, we fear these amendments could remove the requirement for an age-appropriate
approach to protecting children online and make the requirement to prevent children accessing primary priority content less clear.
The noble Baroness, Lady Kidron, asked in her opening remarks about emerging harms, which she was right to do. As noble Lords know, the Bill has been designed to respond as rapidly as possible to new and emerging harms. First, the primary priority and priority list of content can be updated by the Secretary of State. Secondly, it is important to remember the function of non-designated content that is harmful to children in the Bill—that is content that meets the threshold of harmful content to children but is not on the lists designated by the Government. Companies are required to understand and identify this kind of content and, crucially, report it to Ofcom. Thirdly, this will inform the actions of Ofcom itself in its review and report duties under Clause 56, where it is required to review the incidence of harmful content and the severity of harm experienced by children as a result of it. This is not limited to content that the Government have listed as being harmful, as it is intended to capture new and emerging harms. Ofcom will be required to report back to the Government with recommendations on changes to the primary priority and priority content lists.
I turn to the points that the noble Lord, Lord Knight of Weymouth, helpfully raised earlier about things that are in the amendments but not explicitly mentioned in the Bill. As he knows, the Bill has been designed to be tech-neutral, so that it is future-proof. That is why there is no explicit reference to the metaverse or virtual or augmented reality. However, the Bill will apply to service providers that enable users to share content online or interact with each other, as well as search services. That includes a broad range of services such as websites, applications, social media sites, video games and virtual reality spaces such as the metaverse; those are all captured. Any service that allows users to interact, as the metaverse does, will need to conduct a children’s access assessment and comply with the child safety duties if it is likely to be accessed by children.
Amendment 123 from the noble Baroness, Lady Kidron, seeks to amend Clause 48 to require Ofcom to create guidance for Part 3 service providers on this new schedule. For the reasons I have just set out, we do not think it would be workable to require Ofcom to produce guidance on this proposed schedule. For example, the duty requires Ofcom to provide guidance on the content, whereas the proposed schedule includes examples of risky functionality, such as the frequency and volume of recommendations.
I stress again that we are sympathetic to the aim of all these amendments. As I have set out, though, our analysis leads us to believe that the four Cs framework is simply not compatible with the existing architecture of the Bill. Fundamental concepts such as risk, harm and content would need to be reconsidered in the light of it, and that would inevitably have a knock-on effect for a large number of clauses and timing. The Bill has benefited from considerable scrutiny—pre-legislative and in many discussions over many years. The noble Baroness, Lady Kidron, has been a key part of that and of improving the Bill. The task is simply unfeasible at this stage in the progress of the Bill through Parliament
and risks delaying it, as well as significantly slowing down Ofcom’s implementation of the child safety duties. We do not think that this slowing down is a risk worth taking, because we believe the Bill already achieves what is sought by these amendments.
Even so, I say to the Committee that we have listened to the noble Baroness, Lady Kidron, and others and have worked to identify changes which would further address these concerns. My noble friend Lady Harding posed a clear question: if not this, what would the Government do instead? I am pleased to say that, as a result of the discussions we have had, the Government have decided to make a significant change to the Bill. We will now place the categories of primary priority and priority content which is harmful to children on the face of the Bill, rather than leaving them to be designated in secondary legislation, so Parliament will have its say on them.
We hope that this change will reassure your Lordships that protecting children from the most harmful content is indeed the priority for the Bill. That change will be made on Report. We will continue to work closely with the noble Baroness, Lady Kidron, my noble friends and others, but I am not able to accept the amendments in the group before us today. With that, I hope that she will be willing to withdraw.