My Lords, I will speak to Amendment 155 in my name, and I am grateful for the support of the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Strathcarron. Some of my remarks in Committee last week did not go down terribly well with Members and, in retrospect, I realise that that was because I was the only Member of the Committee that day who did not take the opportunity to congratulate the noble Baroness, Lady Kidron, on her birthday. So at this very late stage—a week later —I make good that deficiency and hope that, in doing so, I will get a more jocular and welcoming hearing than I did last week. I will speak in a similar vein, though on a different topic and part of the Bill.
This amendment relates to Clause 65, which has 12 subsections. I regard the first subsection as relatively uncontroversial; it imposes a duty on all service providers. The effect of this amendment would be to remove all the remaining subsections, which fall particularly on category 1 providers. What Clause 65 does, in brief, is to make it a statutory obligation for category 1 providers to live up to their terms of service. Although it does not seek to specify what the terms of service must be, it does, in some ways, specify how they should be operated once they have been written—I regard that as very odd, and will come back to the reason why.
I say at the outset that I understand the motivation behind this section of the Bill. It addresses the understandable feeling that if a service provider of any sort says that they have terms of service which mean that, should there be complaints, they will be dealt with in a certain way and to a certain timetable and that you will get a response by a certain time, or if they say that they will remove certain material, that they should do what they say they will do in the terms of service. I understand what the clause is trying to do —to oblige service providers to live up to their terms of service—but this is a very dangerous approach.
First of all, while terms of service are a civil contract between the provider and the user, they are not an equal contract, as we all know. They are written for the commercial benefit and advantage of the companies that write them—not just in the internet world; this is generally true—and they are written on a take it or leave it basis. Of course, they cannot be egregiously disadvantageous to the customer or else the customer would not sign up to them; none the less, they are drafted with the commercial and legal advantage of the companies in question. Terms of service can be extreme. Noble Lords may be aware that, if you have a bank account, the terms of service that your bank has, in effect, imposed on you almost certainly include a right for the bank to close your account at any time it wishes and to give no reason for doing so. I regard that as an extreme terms of service provision, but it is common. They are not written as equal contracts between consumers and service providers.
Why, therefore, would we want to set terms of service in statute? That is what this clause does: to make them enforceable by a regulator under statute. Moreover, why would we want to do it when the providers we are discussing will have, in practice, almost certainly drafted their terms of service under the provisions of a foreign legal system, which we are then asking our regulator to ensure is enforced? My objection is not to try to find a way of requiring providers to live up to the terms of service they publish—indeed, the normal process for doing so would be through a civil claim; instead, I object to the method of doing so set out in this section of the Bill.
We do not use this method with other terms of service features. For example, we do not have a regulator who enforces terms of service on data protection; we have a law that says what companies must do to protect data, and then we expect them to draft terms of service, and to conduct themselves in other ways, that are compatible with that law. We do not make the terms of services themselves enforceable through statute and regulation, yet that is what this Bill does.
When we look at the terms of service of the big providers on the internet—the sorts of people we have in mind for the scope of the Bill—we find that they give themselves, in their terms of service, vast powers to remove a wide range of material. Much of that would fall—I say this without wanting to be controversial —into the category of “legal but harmful”, which in some ways this clause is reviving through the back door.
Of course, what could be “harmful” is extremely wide, because it will have no statutory bounds: it will be whatever Twitter or Google say they will remove in their terms of service. We have no control over what they say in their terms of service; we do not purport to seek such control in the Bill or in this clause. Twitter policy, for example, is to take down material that offends protected characteristics such as “gender” and “gender identity”. Now, those are not protected characteristics in the UK; the relevant protected characteristics in the Equality Act are “sex” and “gender reassignment”. So this is not enforcing our law; our regulator will be enforcing a foreign law, even though it is not the law we have chosen to adopt here.
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YouTube policy during the pandemic prohibited material that contradicted the views of health authorities. Even my right honourable friend David Davis was removed for opposing Covid passes, but that was a legitimate political position to take and contribution to make. There is no obligation on the platforms to protect free speech or to have respect to Article 10 of the European Convention on Human Rights. They are not in any sense bound by the European convention; most of them are not in any sense European. I think very strongly that this whole section is very dangerous.
I posit an extreme case that requires a slight exercise of the imagination. Imagine if a Russian platform were to gain a significant presence in the UK. It is not impossible: nobody would have predicted TikTok emerging from China so quickly not very long ago. Imagine the terms of service said, quite in compliance with Russian law, that it would remove any material
that included the words “war” and “Ukraine” together; “special military operation” would be all right, but “war” and “Ukraine” would not. Imagine that it was relatively inefficient at doing this and left such material up. Are we not in a position, as a result of this section of the Bill, of obliging Ofcom to seek to enforce that term of its service contract on a Russian platform? How absurd that would be in an extreme case, but the parallel exists with the American and other platforms.
I very much hope that my noble friend will say what I want to say, which is that, yes, there is an issue and we would like to do something. We understand the motivation here, but this is very much the wrong way of going about it. It is inimical to free speech and it leads to absurd conclusions.