My Lords, in speaking to my Amendment 186A, I hope that noble Lords will forgive me for not speaking in detail to the many other amendments in this group correctly branded “miscellaneous” by those who compile our lists for us. Many of them are minor and technical, especially the government amendments. However, that is not true of
all of them: Amendment 253 in the name of the noble Lord, Lord Clement-Jones, is a substantial amendment relating to regulatory co-operation, while Amendment 275A, in the name of the noble Baroness, Lady Finlay of Llandaff, is also of some interest, relating to the reports that Ofcom is being asked to produce on technological developments.
Nor is Amendment 191A lacking in importance and substance, although—I hope I will be forgiven for saying this, not in a snarky sort of way—for those of us who are worried about the enormous powers being given to Ofcom as a result of the Bill, the idea that it should be required by statute to give guidance to coroners, who are part of the courts system, seems to me strange and worth examining more closely. There might be a more seemly way of achieving the effect that the noble Baroness, Lady Kidron, understandably wants to achieve.
I turn to my own Amendment 186A, which, I hope, ought to be relatively straightforward. It concerns the terms of service of a contract with a category 1 service provider, and it is intended to improve the rights that consumers or users of that service have. It is the case that the Government want users of those services to have the ability to enforce their rights under contract against the service providers, as set out in Clause 65, and this is entirely welcome. However, it is well known that bringing claims in contract can be an expensive and onerous business, as I have pointed out in the past, particularly when the service is provided on the one-sided terms of the service provider—often, of course, drafted under the legal system of a foreign jurisdiction.
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Parliament recognised this difficulty when it enacted the Consumer Rights Act 2015. Its purpose was to make it easier for consumers to deal fairly with traders and get redress when they are treated unfairly. However, category 1 providers such as Twitter and Facebook are not governed by the Consumer Rights Act. In the language of the Act, they do not supply digital content
“for a price paid by the consumer”,
a requirement of the Act. So the purpose of Clause 65 is therefore only partially achieved in the Bill as it stands; a key element in enforcing consumer rights is missing.
The European Union, to its credit, rectified this oversight in its directive about modernising consumer law in 2019. It provides that a consumer who receives content or a service in return for providing their personal data should be in the same position as the consumer who pays a price, and the same consumer protections apply to both. The effect of my amendment is that we would follow suit—if we are serious about protecting and empowering users, that is what we should do. We should do away with the arbitrary fiction that category 1 users are not consumers deserving of protection simply because they do not pay a monetary price.
I have heard it said about bringing up this matter on Report, when it should have been brought up in Committee—as I admit that it should—that it is a little too late perhaps for the Bill team and the Minister
to absorb this proposal. However, I do not fully accept that, since the Third Reading of the Bill has been set for 4 September, which gives the Government ample time over the summer to get all their ducks lined up in a row.
I should have thought that this amendment would command support on all sides of the House and from all noble Lords who have participated in this Bill so far. I am hoping, although I have had no indication from my noble friend the Minister whether he is going to accept this amendment, that he would feel that it was a relatively straightforward thing to do, entirely in line with his purpose and something that would strengthen the Bill considerably. I beg to move.