My Lords, I will speak in support of Amendments 250A and 250B; I am not in favour of Amendment 56, which is the compromise amendment. I thank the noble Baroness, Lady Newlove, for setting out the reasons for her amendments in such a graphic form. I declare an interest as a member of the Expert Group on an Individual Complaints Mechanism for the Government of Ireland.
The day a child or parent in the UK has a problem with an online service and realises that they have nowhere to turn is the day that the online safety regime will be judged to have failed in the eyes of the public. Independent redress is a key plank of any regulatory system. Ombudsmen and independent complaint systems are available across all sectors, from finance and health to utilities and beyond. As the noble Lord, Lord Stevenson, set out, they are part of all the tech regulation that has been, or is in the process of being, introduced around the world.
I apologise in advance if the Minister is minded to agree to the amendment, but given that, so far, the Government have conceded to a single word in a full six days in Committee, I dare to anticipate that that is not the case and suggest three things that he may say against the amendment: first, that any complaints system will be overwhelmed; secondly, that it will offer a get-out clause for companies from putting their own robust systems in place; and, thirdly, that it will be too expensive.
The expert group of which I was a member looked very carefully at each of these questions and, after taking evidence from all around the globe, it concluded that the system need not be overwhelmed if it had the power to set clear priorities. In the case of Ireland, those priorities were complaints that might result in real-world violence and complaints from or on behalf of children. The expert group also determined that the individual complaints system should be
“afforded the discretion to handle and conclude complaints in the manner it deems most appropriate and is not unduly compelled toward or statutorily proscribed to certain courses of action in the Bill”.
For example, there was a lot of discussion on whether it could decide not to deal with copycat letters, treat multiple complaints on the same or similar issue as one, and so on.
Also, from evidence submitted during our deliberations, it became clear that many complainants have little idea of the law and that many complaints should be referred to other authorities, so among the accepted recommendations was that the individual complaints system should be
“provided with a robust legal basis for transferring or copying complaints to other bodies as part of the triage process”—
for example, to the data regulator, police, social services and other public bodies. The expert group concluded that this would actually result in better enforcement and compliance in the ecosystem overall.
On the point that the individual complaints mechanism may have the unintended consequence of making regulated services lazy, the expert group—which,
incidentally, comprised a broad group of specialisms such as ombudsmen, regulators and legal counsel among others—concluded that it was important for the regulator to set a stringent report and redress code of practice for regulated companies so that it was not possible for any company to just sit back until people were so fed up that they went to the complaints body. The expert group specifically said in its report that it
“is acutely aware of the risk of … the Media Commission … drawing criticism for the failings of the regulated entities to adequately comply with systemic rules. In this regard, an individual complaints mechanism should not be viewed as a replacement for the online platforms’ complaint handling processes”.
Indeed, the group felt that an individual complaints system complemented the powers given to the regulator, which could and should take enforcement against those companies that persistently fail to introduce an adequate complaints system—not least because the flow of complaints would act as an early warning system of emerging harms, which is of course one of the regulator’s duties under the Bill.
When replying to a question from the noble Lord, Lord Knight of Weymouth, last week about funding digital literacy, the Minister made it clear that the online safety regime would be self-financing via the levy. In which case, it does not seem to be out of proportion to have a focused and lean system in which the urgent, the vulnerable and the poorly served have somewhere to turn.
The expert group’s recommendation was accepted in full by Ireland’s Minister for Media, Culture and Tourism, Catherine Martin, who said she would
“always take the side of the most vulnerable”
and the complaint system would deal with people who had
“exhausted the complaints handling procedures by any online services”.
I have had the pleasure of talking to its new leadership in recent weeks, and it is expected to be open for business in 2024.
I set that out at length just to prove that it is possible. It was one of the strong recommendations of the pre-legislative committee, and had considerable support in the other place, as we have heard. I think both Ofcom and DSIT should be aware that many media outlets have not yet clocked that this complicated Bill is so insular that the users of tech have no place to go and no voice.
While the Bill can be pushed through without a complaints system, this leaves it vulnerable. It takes only one incident or a sudden copycat rush of horrors, which have been ignored or trivialised by the sector with complainants finding themselves with nowhere to go but the press, to undermine confidence in the whole regulatory edifice.
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So I have three questions for the Minister. The first two are on the VSP regime which, as was set out by the noble Baroness, Lady Newlove, is being cancelled by the Bill. First, could the Minister confirm to the Committee that the VSP complaints system has done nothing useful since it was put in place? Therefore, was the decision to repeal it based on its redundancy?
Secondly, if the system has indeed been deemed redundant, is that because of a failure of capacity or implementation by Ofcom—this is crucial for the
Committee to understand, as Ofcom is about to take on the huge burden of this Bill—or is it because all the companies within the regime are now entirely compliant?
Thirdly, once a child or parent has exhausted a company’s complaints system, where, under the Bill in front of us, do the Government think they should go?
I have not yet heard from the noble Baroness, Lady Fox, on her amendments, so I reserve the right to violently agree with her later, but I simply do not understand her reasoning for scrapping super-complaints from the Bill. Over the last six days in Committee, the noble Baroness has repeatedly argued that your Lordships must be wary about putting too much power in the hands of the Government or the tech sector, yet here we have a mechanism that allows users a route to justice that does not depend on their individual wealth. Only those with deep pockets and the skin of a rhinoceros can turn to the law as individuals. A super-complaints system allows interested parties, whether from the kids sector or the Free Speech Union, to act on behalf of a group. As I hope I have made clear, this is additional to, not instead of, an individual complaints system, and I very much hoped to have the noble Baroness’s support for both.