My Lords, Amendment 56 proposes a pathway towards setting up an independent ombudsman for the social media space. It is in my name, and I am grateful to the noble Lord, Lord Clement-Jones, for his support. For reasons I will go into, my amendment is a rather transparent and blatant attempt to bridge a gap with the Government, who have a sceptical position on this issue, and I hope that the amendment in its present form will prove more attractive to them than our original proposal.
At the same time, the noble Baroness, Lady Newlove, has tabled an amendment on this issue, proposing an independent appeals mechanism
“to provide impartial out of court resolutions for individual users of regulated services”.
Given that this is almost exactly what I want to see in place—as was set out in my original amendment, which was subsequently rubbished by the Government—I have also signed the noble Baroness’s amendment, and I very much look forward to her speech. The Government have a choice.
The noble Baroness, Lady Fox, also has amendments in this group, although they are pointing in a slightly different direction. I will not speak to them at this point in the proceedings, although I make it absolutely clear that, while I look forward to hearing her arguments —she is always very persuasive—I support the Bill’s current proposals on super-complaints.
Returning to the question of why we think the Bill should make provision for an independent complaints system or ombudsman, I suppose that, logically, we ought first to hear the noble Baroness, Lady Newlove, then listen to the Government’s response, which presumably will be negative. My compromise amendment could then be considered and, I hope, win the day with support from all around the Committee—in my dreams.
We have heard the Government’s arguments already. As the Minister said in his introduction to the Second Reading debate all those months ago on 1 February 2023, he was unsympathetic. At that time, he said:
“Ombudsman services in other sectors are expensive, often underused and primarily relate to complaints which result in financial compensation. We find it difficult to envisage how an ombudsman service could function in this area, where user complaints are likely to be complex and, in many cases, do not have the impetus of financial compensation behind them”.—[Official Report, 1/2/23; col. 690.]
Talk about getting your retaliation in first.
My proposal is based on the Joint Committee’s unanimous recommendation:
“The role of the Online Safety Ombudsman should be created to consider complaints about actions by higher risk service providers where either moderation or failure to address risks leads to … demonstrable harm (including to freedom of expression) and recourse to other routes of redress have not resulted in a resolution”.
The report goes on to say that there could
“be an option in the Bill to extend the remit of the Ombudsman to lower risk providers. In addition … the Ombudsman would as part of its role i) identify issues in individual companies and make recommendations to improve their complaint handling and ii) identify systemic industry wide issues and make recommendations on regulatory action needed to remedy them. The Ombudsman should have a duty to gather data and information and report it to Ofcom. It should be an ‘eligible entity’ to make super-complaints”
possible. It is a very complicated proposal. Noble Lords will understand from the way the proposal is framed that it would provide a back-up to the primary purpose of complaints, which must be to the individual company and the service it is providing. But it would be based on a way of learning from experience, which it would build up as time went on.
I am sure that the noble Lord, Lord Clement-Jones, will flesh out the Joint Committee’s thinking on this issue when he comes to speak, but I make the point that other countries preparing legislation on online safety are in fact building in independent complaints systems; we are an outlier on this. Australia, Canada and others have already legislated. Another very good example nearer to hand is in Ireland. We are very lucky to have with us today the noble Baroness, Lady Kidron, a member of the expert panel whose advice to the Irish Government to set up such a system in her excellent report in May 2022 has now been implemented. I hope that she will share her thoughts about these amendments later in the debate.
Returning to the Government’s reservations about including an ombudsman service in the Bill, I make the following points based on my proposals in Amendment 56. There need not be any immediate action. The amendment as currently specified requires Ofcom to review complaints systems set up by the companies under Clause 17 as to their effectiveness and efficiency. It asks Ofcom to take other evidence into account and then, and only then, to take the decision of whether to set up an ombudsman system. If there were no evidence of a need for such a service, it would not happen.
As for the other reservations raised by the Minister when he spoke at Second Reading, he said:
“Ombudsman services in other sectors are expensive”.
We agree, but we assume that this would be on a cost recovery model, as other Ofcom services are funded in that way. The primary focus will always be resolving complaints about actions or inactions of particular companies in the companies’ own redress systems, and Ofcom can always keep that under review.
He said that they are “often underused”. Since we do not know at the start what the overall burden will be, we think that the right solution is to build up slowly and let Ofcom decide. There are other reasons why it makes sense to prepare for such a service, and I will come to these in a minute.
He said that other ombudsman services
“primarily relate to complaints which result in financial compensation”.
That is true, but the evidence from other reports, and that we received in the Joint Committee, was that most complainants want non-financial solutions: they want egregious material taken down or to ensure that certain materials are not seen. They are not after the money. Where a company is failing to deliver on those issues in their own complaints system, to deny genuine complainants an appeal to an independent body seems perverse and not in accordance with natural justice.
He said that
“user complaints are likely to be complex”.—[Official Report, 1/2/23; col. 690.]
Yes, they probably are, but that seems to be an argument for an independent appeals body, not against it.
To conclude, we agree that Ofcom should not be the ombudsman and that the right approach is for Ofcom to set up the system as and when it judges that it would be appropriate. We do not want Ofcom to be swamped with complaints from users of regulated services, who, for whatever reason, have not been satisfied by the response of the individual companies or to complex cases, or seek system-wide solutions. But Ofcom needs to know what is happening on the ground, across the sector, as well as in each of the regulated companies, and it needs to be kept aware of how the system as a whole is performing. The relationship between the FCA and the Financial Ombudsman Service is a good model here. Indeed, the fact that some of the responsibilities to be given to Ofcom in the Bill will give rise to complaints to the FOS suggests that there would be good sense in aligning these services right from the start.
We understand that the experience from Australia is that the existence of an independent complaints function can strengthen the regulatory functions. There is also evidence that the very existence of an independent complaints mechanism can provide reassurances to users that their online safety is being properly supported. I beg to move.