My Lords, as we have said many times, this is a complex Bill. As we reflect on the priorities for Report, we can be more relaxed about some of the specifics on how Ofcom may operate, thereby giving it more flexibility—the flexibility it needs to be agile in the online world—if we as a Parliament trust Ofcom. Building trust, I believe, is a triangulation. First, there is independence from government—as discussed in respect of Secretary of State powers. Secondly, we need proper scrutiny by Parliament. Earlier today I talked about my desire for there to be proper post-legislative scrutiny and a permanent Joint Committee to do that. The third leg of the stool is the transparency to assist that scrutiny.
Clause 68 contains the provisions which would require category 1, 2A and 2B services to produce an annual transparency report containing information described by Ofcom in a notice given to the service. Under these provisions, Ofcom would be able to require these services to report on, among other things: information about the incidence of illegal content and content that is harmful to children; how many users are assumed to have encountered this content by means of the service; the steps and processes for users to report this content; and the steps and processes which a provider uses for dealing with this content.
We welcome the introduction of transparency reporting in relation to illegal content and content that is harmful to children. We agree with the Government that effective transparency reporting plays a crucial role in building Ofcom’s understanding of online harms and empowering users to make a more informed choice about the services they use.
However, despite the inclusion of transparency reporting in the Bill representing a step in the right direction, we consider that these requirements could and should be strengthened to do the trust building we think is important. First, the Bill should make clear that, subject to appropriate redactions, companies will be required to make their transparency reports publicly available—to make them transparent—hence Amendment 160A.
Although it is not clear from the Bill whether companies will be required to make these reports publicly available, we consider that, in most instances, such a requirement would be appropriate. As noted,
one of the stated purposes of transparency reporting is that it would enable service users to make more informed choices about their own and their children’s internet use—but they can only do so if the reports are published. Moreover, in so far as transparency reporting would facilitate public accountability, it could also act as a powerful incentive for service providers to do more to protect their users.
We also recognise that requiring companies to publish the incidences of CSEA content on their platforms, for instance, may have the effect of encouraging individuals seeking such material towards platforms on which there are high incidences of that content—that must be avoided. I recognise that simply having a high incidence of CSEA content on a platform does not necessarily mean that that platform is problematic; it could just mean that it is better at reporting it. So, as ever with the Bill, there is a balance to be struck.
Therefore, we consider that the Bill should make it explicit that, once provided to Ofcom, transparency reports are to be made publicly available, subject to redactions. To support this, Ofcom should be required to produce guidance on the publication of transparency reports and the redactions that companies should make before making reports publicly accessible. Ofcom should also retain the power to stop a company from publishing a particular transparency report if it considers that the risk of directing individuals to illegal materials outweighs the benefit of making a report public—hence Amendments 160B and 181A.
Amendments 165 and 229 are in my noble friend Lord Stevenson’s name. Amendment 165 would broaden the transparency requirements around user-to-user services’ terms of service, ensuring that information can be sought on the scope of these terms, not just their application. As I understand it, scope is important to understand, as it is significant in informing Ofcom’s regulatory approach. We are trying to guard against minimal terms of service where detail is needed for users and Ofcom.
The proposed clause in Amendment 229 probes how Ofcom will review the effectiveness of the transparency requirements in the Bill. It would require Ofcom to undertake a review of the effectiveness of transparency reports within three years and every five years thereafter, and it would give the Secretary of State powers to implement any recommendations made by the regulator. The Committee should note that we also include a requirement that a Select Committee, charged by the relevant House, must consider and report on the regulations, with an opportunity for Parliament to debate them. So we link the three corners of the triangle rather neatly there.
If we agree that transparency is an important part of building trust in Ofcom in doing this difficult and innovative regulatory job—it is always good to see the noble Lord, Lord Grade, in his place; I know he is looking forward to getting on with this—then this proposed clause is sensible. I beg to move.