My Lords, I shall speak to Amendment 34 in my name and that of the noble Baroness, Lady Kennedy of the Shaws, and the noble Lords, Lord Clement-Jones and Lord Holmes of Richmond. I declare my interests as set out in the register, particularly as chair of the 5Rights Foundation.
The purpose of the amendment is to ensure that the online safety of UK children and other vulnerable users is not compromised in any UK trade deals, which is of particular relevance to the trade deal between the UK and the US for two reasons. First, the US has recently taken a determined stance in this area and inserted a requirement for recipients of US trade deals—including Mexico, Canada and Japan—to accept aspects of the broad and hugely contested US domestic law, Section 230 of the Communications Decency Act which even the US Attorney-General William Barr describes as enabling
“platforms to absolve themselves completely of responsibility for policing their platforms”
and an IP regime that unduly benefits the mega corporations of Silicon Valley.
Secondly, such broad protection from any liability threatens to put a chill on, if not undermine entirely, existing UK law and threatens the efficacy of the much-anticipated online harms Bill. By contrast, Amendment 34 would make negotiators unable to agree to terms in any trade agreement that did not uphold the UK’s regime of child online protection.
New paragraph (a) captures laws and undertakings in current UK legislation and treaties. This would allow the Government to cite treaties such as the UNCRC, which the UK has ratified but the US has not, and also domestic legislation that has already been passed, for example protections for children from pornography in the Digital Economy Act 2017.
New paragraph (b) specifically refers to the data protections brought into law on 2 September in the form of the age-appropriate design code, an initiative introduced and won in the House of Lords by a similar all-party grouping. It is already having a profound impact on the safety and privacy of children online around the world. New paragraph (b) also ensures that the Data Protection Act 2018 is protected more generally, since the code is built on the broader provisions of the DPA.
New paragraph (c) would allow the Secretary of State to determine that domestic legislation which protects children online can be subject to a carve-out in trade agreements. We cannot directly protect a Bill that is yet to be brought forward but, if this amendment were adopted, the advances promised by the online harms Bill, such as a duty of care tackling the spread of child sexual abuse material, and the introduction of minimum standards, could all be upheld.
Finally, the amendment defines children as persons under 18. This is crucial, since the US domestic consumer law, COPPA, has created a de facto age of adulthood online of 13, an age of maturity that flies in the face of our law, our culture and all known understanding of childhood development.
Turning to the amendment’s relevance to the Bill, I have listened carefully to the Minister, who is at pains to point out that the powers of the Bill are limited to continuity agreements. However, much has been repeatedly said about the lack of parliamentary oversight of the UK’s values as a new trading nation. The Committee can only judge the Government’s priorities on what is in front of it, and I am hopeful that their long-term commitment to making the UK the safest place for a child to be online will be one such priority.
I am not an expert in trade, but I have consulted widely with colleagues and legal experts who are. Their collective confusion would suggest that it remains unclear to what extent agreements between the EU and the US in relation to data flow, data protection and liability services might be considered in scope under language about mutual recognition agreements, which we have yet to hear much about. The Library’s briefing on the Bill points to the fact that:
“The bill does not specify that the new agreement between the UK and a partner country must replicate or be similar to the original EU agreement.”
Were the EU-US agreements to bring these into scope, this leaves a great danger that the safety of UK children will be undermined through the mechanism
of a Trade Bill with no oversight or challenge. When the Minister responds, I would appreciate some clarity that this is not the case.
I want to be clear about what it would mean if we sign away the UK’s right to protect children online. The tech sector would be able to continue to regulate itself, meaning more young people having their data harvested and used to recommend dangerous self-harm and suicide content. More games with no breaks or save buttons would trap children in twilight worlds of gaming. More children would be suggested as potential friends to strange adults through risky design features, and more would face the images of their horrific sexual abuse being circulated online forever. These are just some of the harms that the code and the upcoming online harms Bill are designed to end. All would be at risk if the tech companies get their way—as they are furiously lobbying to do—through the “back door” of a Trade Bill. This is not a risk we need to take.
I note the point made by the noble Lord, Lord Lansley, that amendments of this nature hamper the free hand of trade negotiators and, simultaneously, give sight to trade partners of the UK’s red lines. I hope he will forgive me for saying that that is indeed my intention.
I will finish by hijacking a comment from the noble Baroness, Lady Noakes, during Tuesday’s Committee to point out that it is not only those on the Liberal Democrat Front Bench who want their anxieties to be answered in the Bill. Online harms are an issue that causes anxiety to Members of all parties in both Houses and to vast swathes of the public. There was undoubtedly a majority in the country for releasing the UK from its European trade partners, which forms the context for the Bill, but there is a far greater majority in the country for regulating technology companies. A survey undertaken last year by 5Rights showed that 90% of parents wanted internet companies to be required to follow rules to protect children online, and 67% of those wanted them to be enforced by an independent regulator or the Government.
I appreciate that the noble Lord, Lord Grimstone, has sought to reassure me on Zoom and by letter that the Government will try to maintain their ability to protect users from emerging online harms in a UK-US trade agreement, and I very much welcome his personal commitment to child online safety. However, given the importance of the issue, I ask the Government to put that reassurance in the Bill. It is not scaremongering. The US, at the behest of the richest and most powerful companies in the world, has already inserted Section 230 into each of its recent trade agreements. As the UK becomes the author of its own priorities in the world, there must be no greater priority than putting beyond doubt that it will not trade away the safety and security of its children.
Therefore I ask the Minister whether he can persuade the Government to adopt the substance of the proposed amendment and, in doing so, categorically take our kids off the table.