My Lords, I also declare a considerable interest in that I work for Facebook, one of the web operators which may receive notices under subsection (5). In contributing to the debate, I am trying to bring some of the expertise that we have as operators of internet websites more generally to what is, I know, a complex and difficult debate and one which we make more complex and difficult by having fast-moving technology. In that respect, I shall touch first on the amendment which proposes that we should talk about electronic platforms rather than websites per se. In doing so, I will pick up on some of the other points made in the debate around whether websites are different and special; they may be or they may not.
There are essentially two classes of website. There are websites which are owned by a single organisation and over which that organisation has editorial control. It could be argued that such websites should be treated like a newspaper or any other form of media. Indeed, those websites are specifically excluded from having this defence because, under subsection (2), they are clearly the organisation that posted the statement in question to the website, so it runs the website and creates the content for it.
There is a whole class of other websites or platforms where the body which produces that platform has no direct interest in the content, exercises no editorial control and simply exists, as the noble Lord, Lord Lucas, described it, as a conduit that enables a citizen to speak with other citizens all over the world. These platforms have become tremendously successful precisely because they democratise speech in a way that was not previously possible because you needed a printing press or other expensive equipment. It is right that in the context of Clause 5 we should think about the position of those operators. That is much more widely recognised in law, if we look at the e-commerce directive, which has been very successful. It was designed precisely with the fact in mind that we have on the internet platforms the job of which is to connect people, but which are not responsible for the content being shared between the people connecting through these platforms. This covers a whole range of other areas such as copyright, illegal content and so on.
However, this does not mean it is a lawless space —that discussion was held earlier—in fact, it is a very lawful space. The operators have responsibility but the primary responsibility for content shared across a platform has to reside with the person who posted and shared that content. In that respect, Clause 5 takes us absolutely in the right direction. It directs platforms—the second type of website that is not editorially responsible—towards a regime within which it is in their interests to connect the poster of the content with the complainer about it and to seek to resolve the dispute between the two parties. Where that dispute cannot be resolved between them, the operator then has some responsibilities.
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We need to temper those responsibilities and put them within a sensible framework if we are not to have the chilling effect, which I would not dismiss perhaps as lightly as the noble Lord, Lord Phillips of Sudbury. The chilling effect is there—the noble Lord, Lord Lucas, described this very eloquently—because there are so many millions of pieces of content being posted by so many millions of people within the United Kingdom and elsewhere that to be able to operate these platforms at scale and not have some kind of defence becomes unworkable. You are left with an automated system—again we see this debate in other areas as well—where the only response that the platform operator can take when operating at scale is to repeatedly receive notices and take down content, which is where the chilling effect kicks in. It is sensible to look at it differently.
The noble Baroness, Lady Hayter, referred to the DPP’s guidelines on social media. They are another sensible recognition that on platforms such as social media we perhaps have to apply the rules a little differently if we are to avoid a chilling effect because people are speaking in quite a different way. I would equate it with people speaking in a pub, a bar, a marketplace or at a football match. They are speaking in quite a different tone and context from anything that we have ever had before. To treat that kind of speech identically to that made in the Times or on the BBC misjudges what is taking place. We need to have rules that can cater for both kinds of speech.