I join noble Lords who have sent good wishes for a speedy recovery to the noble Baroness, Lady Featherstone.
Amendments 46, 47 and 64, in the name of my noble friend Lady Stowell of Beeston, seek to require platforms to assess the risk of, and set terms for, content currently set out in Clause 12. Additionally, the amendments seek to place duties on services to assess risks to freedom of expression resulting from user empowerment tools. Category 1 platforms are already required to assess the impact on free expression of their safety policies, including user empowerment tools; to keep that assessment up to date; to publish it; and to demonstrate the positive steps they have taken in response to the impact assessment in a publicly available statement.
Amendments 48 and 100, in the name of the noble Lord, Lord Stevenson, seek to introduce a stand-alone duty on category 1 services to protect freedom of expression, with an accompanying code of practice. Amendments 49, 50, 53A, 61 and 156, in the name of the noble Baroness, Lady Fox, seek to amend the Bill’s Clause 17 and Clause 18 duties and clarify duties on content of democratic importance.
All in-scope services must already consider and implement safeguards for freedom of expression when fulfilling their duties. Category 1 services will need to be clear what content is acceptable on their services and how they will treat it, including when removing or restricting access to it, and that they will enforce the rules consistently. In setting these terms of service, they must adopt clear policies designed to protect journalistic and democratic content. That will ensure that the most important types of content benefit from additional protections while guarding against the arbitrary removal of any content. Users will be able to access effective appeal mechanisms if content is unfairly removed. That marks a considerable improvement on the status quo.
Requiring all user-to-user services to justify why they are removing or restricting each individual piece of content, as Amendment 53A would do, would be disproportionately burdensome on companies, particularly small and medium-sized ones. It would also duplicate some of the provisions I have previously outlined. Separately, as private entities, service providers have their own freedom of expression rights. This means that platforms are free to decide what content should or should not be on their website, within the bounds of the law. The Bill should not mandate providers to carry or to remove certain types of speech or content. Accordingly, we do not think it would be appropriate to require providers to ensure that free speech is not infringed, as suggested in Amendment 48.
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Similarly, it would not be appropriate to require providers to give the same weight to protecting freedom of expression as to safety, as required under Amendment 61. Both amendments would, in effect, require platforms
to carry legal content—even if they did not wish to—for safety, commercial or other reasons. This would likely result in worse outcomes for many users.
We have designed the regulatory framework to balance protecting user safety and freedom of expression. Platforms and Ofcom have duties relating to freedom of expression for which they can be held to account. A “must balance” test suggests there is a clear line to be drawn as to where legal content should be removed. This is in conflict with our policy, which accepts that it would be inappropriate for the Government to require companies to remove legal content accessed by adults. It also recognises that, as private entities, companies have the right to remove legal content from their services if they wish to do so. Preventing them from doing so by requiring them to balance this against other priorities could have unintended consequences.
Government Amendments 50A and 50F in my name seek to clarify that the size and capacity of the provider are important in construing the reference to proportionate systems and processes with regard to the duties on category 1 services to protect journalistic content and content of democratic importance. These amendments increase legal certainty and make the structure of these clauses consistent with other references to proportionality in the Bill. Without these amendments, it would be less clear which factors are important when construing whether a provider’s systems and processes to protect journalistic content and content of democratic importance are proportionate.
Amendment 51 in the name of the noble Lord, Lord Stevenson of Balmacara, seeks to change the duty of category 1 services to protect journalistic content so it applies only to journalism which they have judged to be in the public interest. This would delegate an inappropriate amount of power to platforms. Category 1 platforms are not in a position to decide what information is in the interests of the British public. Requiring them to do so would undermine why we introduced the Clause 15 duties—