My Lords, I hope that the noble Baroness, Lady Fox, and my noble friend Lord Moylan do feel that they have been listened to. It was striking, in this debate, that they had support from all corners of your Lordships’ House. I know that, at various points in Committee, they may have felt that they were in a minority, but they have been a very useful and welcome one. This debate shows that many of the arguments that they have made throughout the passage of the Bill have resonated with noble Lords from across the House.
Although I have not signed amendments in the names of the noble Baroness and my noble friend Lord Moylan, in many cases it is not because I disagree with them but because I think that what they do is already covered in the Bill. I hope to reassure them of that in what I say now.
Amendments 77 to 81 from the noble Baroness, Lady Fox, would require services to have particular regard to freedom of expression and privacy when deciding on their terms of service. Services will already need to have particular regard to users’ rights when deciding on safety systems to fulfil their duties. These requirements will be reflected in providers’ terms of service, as a result of providers’ duties to set out their safety measures in their terms of service. The framework will also include a range of measures to allow scrutiny of the formulation, clarity and implementation of category 1 providers’ own terms of service.
However, there are some points on which we disagree. For instance, we do not think that it would be appropriate for all providers to have a general duty to have a particular regard to freedom of expression when deciding on their own terms of service about content. We believe that the Bill achieves the right balance. It requires providers to have regard to freedom of expression when carrying out their safety duties, and it enables public scrutiny of terms of service, while recognising providers’ own freedom of expression rights as private entities to set the terms of service that they want. It is of course up to adults to decide which services to use based on the way those services are drawn up and the way the terms of service set out what is permissible in them.
Nothing in the Bill restricts service providers’ ability to set their own terms and conditions for legal content accessed by adults—that is worth stressing. Ofcom will not set platforms’ terms and conditions, nor will it take decisions on whether individual pieces of content should, or should not, be on a platform. Rather, it will ensure that platforms set clear terms and conditions, so that adults know what to expect online, and ensure that platforms have systems and processes in place to enforce those terms and conditions themselves.
Amendment 226 from the noble Baroness, Lady Fox, would require providers to use all relevant information that is reasonably available to them whenever they make judgments about content under their terms of service. That is, where they have included or drafted those terms of service in compliance with duties in the Bill. Her amendment would be to an existing requirement in Clause 173, which already requires providers to take this approach whenever they implement a system or process to comply, and this system is making judgments about certain content. For example, Clause 173 already covers content judgments made via systems and processes that a category 1 provider implements to fulfil its Clause 65 duties to enforce its own terms of service consistently. So we feel that Clause 173 is already broad enough to achieve the objectives that the noble Baroness, Lady Fox, seeks.
My noble friend Lord Moylan’s amendments seek to require Ofcom to have special regard to the importance of protecting freedom of expression when exercising its enforcement duties and when drafting codes or guidance. As we discussed in Committee, Ofcom has existing obligations to protect freedom of expression, and the Bill will include additional measures in this regard. We are also making additional amendments to underline the importance of freedom of expression. I am grateful to the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Fraser of Craigmaddie for their work to define “freedom of expression” in the Bill. The Bill’s new overarching statement at Clause 1, as the noble Lord, Lord Stevenson, rightly pointed out, lists “freedom of expression”, signalling that it is a fundamental part of the Bill. That is a helpful addition.
Amendment 188 in the name of the noble Baroness, Lady Fox, seeks to disapply platforms’ Clause 65 duties when platforms’ terms of service restrict lawful expression, or expression otherwise protected by Article 10 of the European Convention on Human Rights. Her amendment would mean that category 1 providers’ Clause 65 duties to enforce clear, accessible terms of service in a consistent manner would not apply to any of their terms of service, where they are making their own decisions restricting legal content. That would greatly undermine the application of these provisions in the Bill.
Article 10 of the European Convention on Human Rights concerns individuals’ and entities’ rights to receive and impart ideas without undue interference by public authorities, not private entities. As such, it is not clear how a service provider deciding not to allow a certain type of content on its platform would engage the Article 10 rights of a user.
Beyond the legal obligations regarding the treatment of certain kinds of user-generated content imposed by this Bill and by other legislation, platforms are free to decide what content they wish, or do not wish, to have on their services. Provisions in the Bill will set out important duties to ensure that providers’ contractual terms on such matters are clear, accessible and consistently enforced.
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Moreover, as we have discussed before, Ofcom is bound by the Human Rights Act 1998. So, when carrying out all its functions under this Bill, including the preparation of guidance and codes, it will need to ensure that freedom of expression is protected. There is already a range of other measures in the Bill which ensure that Ofcom protects freedom of expression; for instance, it has a duty in Clause 143 to set out the steps it has taken, and the processes it operates, to ensure that its online safety functions have been exercised compatibly with Articles 8 and 10 of the European Convention on Human Rights. As such, my noble friend Lord Moylan’s amendments would be largely duplicative, since Ofcom already has an obligation to set out similar information in an annual statement.
The illegal content duties, in relation to the points raised about Section 5 of the Public Order Act in Schedule 7, remain risk-based and proportionate. Platforms must use proportionate systems and processes designed to prevent users encountering illegal content and to minimise the length of time that any priority illegal content is present on the service. We are not requiring platforms to ensure that users never encounter illegal content. Companies could take proportionate measures, such as user reporting, user empowerment and enforcing policies which prohibit threats or abuse, but the Bill also creates strong safeguards to protect freedom of expression. All services will need to have particular regard to freedom of expression when implementing safety duties. I certainly agree with the noble Lord, Lord Allan of Hallam, when he says that good and clear guidance is vital here. That is why we have put in place a requirement through Clause 174 for Ofcom to produce guidance about how to make judgments about illegal content.
Amendment 162 from the noble Baroness, Lady Fox, seeks to remove offences under Section 5 of the Public Order Act 1986 from the priority offences list. Section 5 of the Public Order Act makes it an offence to use
“threatening or abusive words or behaviour, or disorderly behaviour”
or to display any
“visible representation which is threatening or abusive”.
Given that that activity can cause harm, it is right that companies have duties to tackle it and, subject to the guidance that I have just mentioned, we think that the Bill sets that out appropriately.
The noble Baroness’s Amendment 275 would require Ofcom to ensure that content classification frameworks created by the British Board of Film Classification, which act as a reference for providers’ online safety duties, should not undermine the Bill’s safeguards for freedom of expression. If it is the case that a content classification scheme produced by the BBFC is unsuitable to be used as a reference for whether content falls within the scope of providers’ new online safety duties,
Ofcom should not recommend it in its codes of practice. Ofcom has specific duties in the Bill to protect freedom of expression when drafting its codes of practice, which will ensure that any measures it recommends are designed in that light. However, I will take the point and case study she raised back to the department to see whether I can find out any further detail about what went on in that instance.
Amendments 286 and 294 would insert a definition of “freedom of expression” into the Bill. As I mentioned, I am grateful to the noble and learned Lord, Lord Hope, and my noble friend Lady Fraser for proposing these amendments, which align the definition of freedom of expression in the Bill with that in the European Convention on Human Rights. We agree with them that it will increase clarity about freedom of expression in the Bill, which is why I have added my name to their amendments and, when we come to the very end of Report—to which I look forward as well—I will be very glad to support them.