My Lords, I want to reflect on the comments that the noble Lord, Lord Moylan, has just put to us. I also have two amendments in the group; they are amendments to the government amendment, and I am looking to the Minister to indicate whether it is helpful for me to explain the rationale of my amendments now or to wait until he has introduced his. I will do them collectively.
First, the point the noble Lord, Lord Moylan, raised is really important. We have reached the end of our consideration of the Bill; we have spent a lot of time on a lot of different issues, but we have not spent very much time on these new criminal offences, and there may be other Members of your Lordships’ House who were also present when we discussed the Communications Act back in 2003, when I was a Member at the other end. At that point, we approved something called Section 127, which we were told was essentially a rollover of the dirty phone call legislation we had had previously, which had been in telecoms legislation for ever to prevent that deep-breathing phone call thing.
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It went through almost on the nod, and then it turned out to become a very significant offence later. Noble Lords may be aware of the Twitter joke trial, the standout trial that people have followed, where an individual was prosecuted for saying something on Twitter which was originally taken very seriously as a bomb threat. Later, on appeal, the prosecution was found to be invalid. The debate around Section 127 and its usage has gone backwards and forwards.
There is a genuine question to be asked here about whether we will be coming back in a few years and finding that this offence has been used in ways that we were not expecting or intending. I think we all know what we are trying to get at: the person who very deliberately uses falsehoods to cause serious harm to others. That has been described by the noble Baroness, Lady Buscombe, and the noble and learned Lord, Lord Garnier. However, you can see how the offence could inadvertently capture a whole load of other things where we would either collectively agree that they should not be prosecuted or have quite different opinions about whether they should be prosecuted.
I used to sit in judgment on content at a platform, and people would often say to us, “Why are you allowing that content? It’s false”. We would say, quite rightly, that we had no terms of service that say you cannot lie or issue falsehoods on the platform. They would say, “Why not?”, and we would dig into it and say, “Let’s just deal with some falsehoods”. For example, “The earth is flat”—I think most of us would agree
that that is false, but it is entirely harmless. We do not care; it is a lie we do not care about. What about, “My God is the only true God”? Well, that is an opinion; it is not a statement of fact—but we are getting into a zone that is more contested. As for, “Donald Trump won the election”, that is an absolute and outright lie to one group of people but a fundamental issue of political expression for another. You very quickly run into these hotly contested areas. This is going to be a real challenge.
We have often talked in this debate about how we are handing Ofcom a really difficult job across all the measures in the Bill. In this case, I think we are handing prosecutors a really difficult job of having to determine when they should or should not use the new offence we are giving them. I think it will be contested, and we may well want to come back later and look at whether it is being used appropriately. I am sure the noble Baroness, Lady Fox, will have something to say about this.
If we do anything, we should learn from previous experiences. I think everyone would agree that Section 127 of the Communications Act 2003, which has been in place for 20 years, has not been an easy ride. We have moved our view on that around considerably. One good thing is that these new offences replace it—we are replacing this thing we rushed through then with a different version—but we need to test very carefully whether we have got it right.
Moving away from that offence to the new offence of the encouragement of self-harm, which the Minister will introduce shortly, I have two amendments which are quite different from each other, and I want to explain each of them. The first, Amendment 268AZC, seeks to test the threshold for prosecutions under this offence—so, again, it is about when we should or should not prosecute. It follows concerns raised by my noble friend Lord Clement-Jones. Legitimate concerns have been raised by a coalition of about 130 different individuals and organisations supporting survivors of self-harm. The question, really, is what the Government’s intention is. I hope the Minister can put something on the record which will be helpful later in terms of the Government’s intention for where the threshold should lie.
We can see clear instances where somebody maliciously and deliberately encourages self-harm. There are other issues around the way in which systems encourage self-harm, which I think are tackled in other parts of the Bill, but here we are talking about an individual carrying out an action which may be prosecuted. We can see those people, but there is then a spectrum: people who support victims of self-harm, people who provide educational and support materials—some of which might include quite graphic descriptions—people who run online fora, and indeed the individuals themselves who are posting self-harm content and documenting what they have done to themselves.
What I am looking for, and I think other noble Lords are looking for, is an assurance that it is not our intention to capture those people within this new offence. When the Minister outlines the offence, I would appreciate an assurance about why those fears will not be realised. We have suggested in the amendment to have a bar involving the Director of Public Prosecutions. I am sure the Minister will explain why that is not the
right gating mechanism—but if not that, what is going to ensure that people in distress are not brought into the scope of this offence?
It would be very helpful to know what discussions the Minister is having with the Ministry of Justice, particularly about working with relevant organisations on the detail of what is being shared. Again, we can talk about it in the abstract; I found that specific cases can be helpful. I hope that there are people, either in his department or in the Ministry of Justice, who are talking to organisations, looking at the fora and at the kind of content that people in distress post, applying themselves and saying, “Yes, we are confident that we will not end up prosecuting that individual or that organisation”, or, if it is likely that they will be prosecuted, “We need to have a longer discussion about that if that is not the intention”.
Moving backwards through the letters, Amendment 268AZB takes us back to a question raised earlier today by the noble Baroness, Lady Kidron, but also on the first day in Committee, way back when—I am starting to feel nostalgic. She proposed an amendment to broaden the scope of this regulation to all online services, whether or not they are in the regulated user-to-user and search bucket for children’s protection purposes. I argued against that. I continue to view this legislation as appropriately targeted, and I worry about broadening the scope—but here I have a lot of sympathy. The noble Baroness raised a specific scenario, which again is a real one, of an individual outside the UK jurisdiction—let us imagine that they are in the US, because they will have first amendment protections. They run a blog, so it is not user to user, which is targeting people in the UK and saying, “You should harm yourself. You should commit suicide”. That individual is doing nothing wrong in their terms. They are now, under the terms of the Bill, committing a criminal offence in the UK, but there is virtually no prospect that they will ever be prosecuted unless they come to the UK. The amendment is seeking to tease out what happens in those scenarios.
I do not expect the Minister to accept my amendment as drafted—I thought it was cheeky even as I was drafting it. It says that for the purposes that we want, we will apply a whole bunch of the Online Safety Bill measures—the disruption, the blocking, the business disruption measures—to websites that promote this kind of content, even though they are not otherwise regulated. I am sure that the Minister has very good legal arguments in his notes as to why that would not work, but I hope he will tell us what else the Government can do. I do not think that people will find it acceptable if we go to all the trouble of passing this legislation but there is a category of online activity—which we know is there; it is real—that we can do nothing about. They are breaking our criminal law; we have taken all this time to construct a new form of criminal law, and yet they are sitting there beyond our reach, ignoring it, and we can do nothing. I hope the Minister can offer some suggestions as to what we might do.
I see that the noble Baroness, Lady Finlay of Llandaff, is in her place; she asked me to raise questions around the extent to which we have been using the powers we have today, but I will not as I think she will do so herself.
The core question that motivates the second amendment is that of what the Government think we might do if there are individuals who are not user-to-user or search services and are therefore outside the regulated bucket, who persistently and deliberately breach this new offence of encouragement to self-harm and yet are outside the UK jurisdiction. I hope the Minister agrees that something should be done about that scenario, and I look forward to hearing his suggestion about what may be done.