I did not quite finish writing down the noble Baroness’s questions. I will do my best to answer them, but I may need to follow up in writing because she asked a number at the end, which is perfectly reasonable. On her question about whether confirmation decision steps could include media literacy, yes, that is a good idea; they could.
Amendment 268, tabled by the noble Lord, Lord Stevenson of Balmacara, seeks to enable the Secretary of State, through regulation, to add to the list of duties which are linked to the confirmation decision offence. We are very concerned at the prospect of allowing an unconstrained expansion of the confirmation decision offence. In particular, as I have already set out, we would be concerned about expansion of those related to search services. There is also concern about unconstrained additions of any other duties related to user-to-user services as well.
We have chosen specific duties which will tackle effectively key issues related to child safety online and tackling child abuse while ensuring that the confirmation decision offence remains targeted. Non-compliance with a requirement imposed by a confirmation decision in relation to such duties warrants the prospect of criminal enforcement on top of Ofcom’s extensive civil enforcement powers. Making excessive changes to the offence risks shifting the regime towards a more punitive and disproportionate enforcement model, which would represent a significant change to the framework as a whole. Furthermore, expansion of the confirmation decision offence could lead to services taking an excessively cautious approach to content moderation to avoid the prospect of criminal liability. We are also concerned that such excessive expansion could significantly increase the burden on Ofcom.
I am grateful to the noble Lord, Lord Weir of Ballyholme, and the noble Baroness, Lady Benjamin, for the way they set out their Amendment 268C. We are concerned about this proposal because it is important that Ofcom can respond to issues on a case-by-case basis: it may not always be appropriate or proportionate to use a specific enforcement power in response to a suspected breach. Interim service restriction orders are some of the strongest enforcement powers in the Bill and will have a significant impact on the service in question. Their use may be disproportionate in cases where there is only a minor breach, or where a service is taking steps to deal with a breach following a provisional notice of contravention.
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In contrast to applications for service restriction orders which require that there is a continuing failure to comply with an enforceable duty, interim service
restriction orders require only that it is likely that there is a failure. This provision is included so that steps can be taken quickly where the level of risk of harm to people relating to the likely failure, and the nature and severity of that harm, are such that it would not be appropriate to wait to establish the failure before applying for the order. While the duties specified by Amendment 268C are important, putting pressure on Ofcom pre-emptively to take a specific course of enforcement action which is aimed at addressing only particularly urgent, high-risk scenarios would be counter to the intention of the rest of the framework; that is, to enable an efficient, proportionate and targeted approach.
It is important that Ofcom takes proportionate steps. Section 11(3)(a) is a duty to operate a service using proportionate systems and processes designed to prevent children of any age encountering, by means of the service, primary priority content that is harmful to them. As such, the prospective failure in relation to the duty may be to do with a particular aspect of the systems and processes that are in place. While these are important, a particular failure in relation to the systems and processes-focused duty might not necessarily warrant the drastic action of an interim court order requiring ancillary services providers to withdraw their services from a potentially non-compliant regulated service.
We are concerned that removing a proportionality ground for the court application for an interim service restriction order and requiring Ofcom to justify its decision not to apply for an interim disruption order to the Secretary of State would, in effect, pressure Ofcom to take an excessively punitive course of action. Likewise, in some cases it may be highly irregular for there to be an expectation that Ofcom would have to justify its decision not to apply for an interim disruption order in each particular case to the Secretary of State, but I am happy to reassure the noble Baroness, Lady Benjamin, again that business disruption measures will be able to operate effectively at scale and at sufficient speed. I hope that that provides enough reassurance to her and the noble Lord, Lord Weir, that they are willing to not move their amendment, but I am grateful for the support they voiced, as did others, for the government amendments in this group.