My Lords, I will endeavour to give that clarity, but it may be clearer still if I flesh some points out in writing in addition to what I say now.
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The amendments in this group address the Bill’s enforcement powers. I begin by assuring noble Lords that there is a strong package of enforcement powers in the Bill, which will promote compliance with the regulatory regime that it ushers in and ensure that providers are held to account. Ofcom will be given robust powers to use against companies that do not comply with their duties under the Bill; it will be able to impose a penalty and/or direct companies to take specific steps to come into compliance. When companies do not comply with such a direction, Ofcom will be able to issue penalties up to £18 million or 10% of qualifying global revenue, which can be considerably more. Ofcom will also be able to apply to the courts for business disruption measures, which we will touch on in a later group. These are court orders that require third parties to withdraw their services from, or block access to, the non-compliant regulated service.
Amendment 33 in the name of the noble Lord, Lord Stevenson of Balmacara, and moved by the noble Lord, Lord Knight, Amendments 182 and 218B in the name of my noble friend Lord Bethell, and government Amendments 218A, 284D, 284E and 284F all seek to widen senior management liability. It makes sense if I begin with the government amendments.
Senior managers can already be held criminally liable when they fail to ensure that their company provides Ofcom with the information that it needs to regulate. These amendments create a new offence of failure to comply with a requirement imposed by Ofcom in a confirmation decision, in relation to specific child safety duties. In such cases, the senior manager responsible will be liable and can face up to two years in prison, a fine or both.
My noble friend Lady Harding asked me to comment on whether that has to be conscious or deliberate. The means by which the new offence is linked to individuals or senior managers is achieved through the existing liability provisions in Clause 178. It does not have to be conscious or deliberate. This will ensure that a relevant senior manager could be held criminally liable for the offence of failing to comply with the steps in a confirmation decision relating to any linked duty, if such an offence was committed with the consent or connivance of the senior manager or was attributable to the neglect of the senior manager.
This approach is modelled on provisions in the Irish Online Safety and Media Regulation Act 2022. It ensures that services know when an action or omission risks criminal liability, while providing sufficient legal certainty to ensure that the offence can be prosecuted. The duties to which this offence will be linked are the child safety duties under Clause 11(3) and duties for pornographic content under Clause 72. This focuses the new offence on harms that are central to child safety, including self-harm content, eating disorder content and pornography. This offence fulfils the Government’s commitment in another place to bring forward an amendment in your Lordships’ House strengthening the Bill’s protections for children. I am grateful for the comments welcoming them.
Amendments 33 and 182 propose creating new offences for non-compliance with duties under the Bill. Attaching criminal liability directly to the duties would create uncertainty about the criminal action. Creating criminal offences that do not prescribe the required act or omission would give rise to real concerns about the quality of the criminal law. I am pleased to say that the Government’s amendments will achieve the core aims of Amendments 33 and 182 while providing sufficient legal certainty to ensure that managers can be prosecuted. I appreciate that my noble friend Lord Bethell has recognised the benefits of this approach in the drafting of his Amendment 218B.
I note that that amendment and my noble friend’s Amendment 182 link criminal liability with a wider range of duties, but it is important that this offence is a targeted one. As such, we have linked the offence with the specific duties which will most effectively focus efforts on child safety, and have intentionally targeted user-to-user sites, which have much greater control than search services over content and will therefore be best placed to prevent children accessing it. My noble friend asked about not linking senior management liability with child sexual exploitation and abuse content. The Bill already contains very strong powers to tackle child sexual exploitation and abuse content, including the power to require companies to use accredited technology to identify, take down and prevent users encountering such content.
Separately, the Bill imposes a requirement to report child sexual exploitation and abuse content to the National Crime Agency. Persons who falsify information in the course of their child sexual exploitation and abuse content reporting duties can be punished with up to two years in prison. This will tackle such exploitation and abuse at each stage, with strong preventive powers to ensure that such content is prevented from being encountered, that it is identified and removed, and that there are criminal sentences for falsifying information in the required reports to the National Crime Agency. At the same time, we are determined to ensure that this offence is as effective as possible in protecting children, while ensuring that it remains workable. We are willing to engage further with concerned parties to ensure that the provisions achieve these aims. I am very happy to discuss this further with my noble friend and other noble Lords if they wish to do so.
We are taking further steps to strengthen the Bill’s enforcement powers by conferring on Ofcom additional powers of seizure from premises, as per Section 50 of
the Criminal Justice and Police Act 2001. Ofcom will be able to apply for a warrant to enter and inspect premises. Powers exercisable by warrant include the seizure of documentation and equipment. This amendment will, in certain circumstances, allow a person exercising this power to remove material from the premises, where it is not reasonably practicable to determine whether it is seizeable, in order to determine later whether they are entitled to seize it. Further, it allows a person to seize material where it is not reasonably practicable to separate it from seizeable material.
The amendments tabled by my fellow Northumbrian, the noble Lord, Lord Curry of Kirkharle, do three things. They require Ofcom to issue provisional notices of contravention if there are reasonable grounds for believing that a service or person is not complying with their duties; they provide that Ofcom can decide not to give an enforcement confirmation decision only if it is satisfied that systems and processes are in place to ensure that the service is in compliance; and they remove Ofcom’s discretion to determine how long specific enforcement steps should take. While I certainly accept the helpful spirit in which the noble Lord has tabled these amendments, I worry that they would undermine the discretion of the regulator to manage the enforcement process as it sees fit in each case. This would, in turn, undermine Ofcom’s ability to regulate in a proportionate way and could make Ofcom’s enforcement processes unnecessarily punitive and inflexible.
Instead, the Bill sees Ofcom acting proportionately in performing its regulatory functions, targeting action where it is needed and adjusting timeframes as necessary. Ofcom will have a statutory obligation to produce guidance on its approach to enforcing the new regime the Bill brings in, just as it does with other sectors that it regulates. Ofcom strives to take a consistent approach across these sectors and often combines guidance on its general principles of enforcement. In addition, as the Bill sets out, Ofcom may draw on guidelines it has produced under Section 392 of the Communications Act which relate to the amount of penalties. These examples of existing enforcement guidance illustrate Ofcom’s experience as a regulator in providing such enforcement guidance. Ofcom is well placed to produce clear and effective guidance to help businesses understand enforcement.
Amendment 219 in the name of the noble Lord, Lord Knight of Weymouth, seeks to impose liability on a provider where a company providing regulated services on its behalf does not comply with the duties in the Bill. The Bill sets out which services will need to comply with duties and makes it clear in Clause 198 that duties fall on the entity with control over the regulated service. Such entities are best placed to keep users safe online, as they can accurately assess risk and put in place systems and processes to minimise harm. At the same time, Ofcom can hold a parent and subsidiary company jointly responsible for the actions of a company if the parent company has sufficient control over the subsidiary. Under Amendment 219, the provider would be liable regardless of whether it has control over the service in question. That would impose an unreasonable burden on businesses and cause confusion regarding which companies are required to comply with the duties in the Bill.
The second group of amendments, in the name of my noble friend Lord Bethell, are Amendments 220A to 220C, which address the timing, nature and content of guidance that Ofcom must produce on its approach to enforcement. This guidance is important to ensure that companies are clear about Ofcom’s processes. The amendments would prescribe the details that Ofcom should contain in the guidance. To ensure the guidance is effective, Ofcom must retain the discretion to include the information which it considers relevant, drawing on its long experience as a regulator. As I say, we will come to debate later the business disruption measures for which Ofcom will be given the power to apply to the courts.
Finally, government Amendment 284B is a technical amendment providing extraterritorial application for the enforcement of civil proceedings in relation to a requirement on providers to publish details of enforcement actions. Together, the Bill’s suite of targeted, proportionate enforcement powers, further strengthened by the government amendments to which I have just spoken, will ensure that companies are held accountable. I hope that that brings a bit of clarity to noble Lords. I commend the amendment standing in my name and invite noble Lords not to press theirs.