My Lords, I will make some arguments in favour of Amendment 191A, in the name of the noble Baroness, Lady Kidron, and inject some notes of caution around Amendment 186A.
On Amendment 191A, it has been my experience that when people frequently investigate something that has happened on online services, they do it well, and well-formed requests are critical to making this work effectively. This was the case with law enforcement: when an individual police officer is investigating something online for the first time, they often ask the wrong questions. They do not understand what they can get and what they cannot get. It is like everything in life: the more you do it, the better you get at it.
Fortunately, in a sense, most coroners will only very occasionally have to deal with these awful circumstances where they need data related to the death of a child. At that point, they are going to be very dependent on Ofcom—which will be dealing with the companies day in and day out across a range of issues—for its expertise. Therefore, it makes absolute sense that Ofcom’s expertise should be distributed widely and that coroners—at the point where they need to access this information—should be able to rely on that. So Amendment 191A is very well intended and, from a practical point of view, very necessary if we are going to make this new system work as I know the noble Baroness, Lady Kidron, and I would like to see it work.
On Amendment 186A around consumer law, I can see the attraction of this, as well as some of the read-across from the United States. A lot of the enforcement against online platforms in the US takes place through the Federal Trade Commission precisely in this area of consumer law and looking at unfair and deceptive practices. I can see the attraction of seeking to align with European Union law, as the noble Lord, Lord Moylan, argued we should be doing with respect to consumer law. However, I think this would be much better dealt with in the context of the digital markets Bill and it would be a mistake to squeeze it in here. My reasons for this are about both process and substance.
In terms of process, we have not done the impact assessment on this. It is quite a major change, for two reasons. First, it could potentially have a huge impact in terms of legal costs and the way businesses will have to deal with that—although I know nobody is going to get too upset if the impact assessment says there will be a significant increase in legal costs for category 1 companies. However, we should at least flesh these things out when we are making regulations and have them in an impact assessment before going ahead and doing something that would have a material impact.
Secondly in process terms, there are some really interesting questions about the way this might affect the market. The consumer law we have does exclude services that are offered for free, because so much of consumer law is about saying, “If the goods are not delivered correctly, you get your money back”. With free services, we are clearly dealing with a different model, so the notion that we have a law that is geared towards making sure you either get the goods or you get the money may not be the best fit. To try to shoehorn in these free-at-the-point-of-use services may not be the best way to do it, even from a markets and consumer point of view. Taking our time to think about how to get this right would make sense.
More fundamentally, in terms of the substance, we need to recognise that, as a result of the Online Safety Bill, Ofcom will be requiring regulated services to rewrite their terms of service in quite a lot of detail. We see this throughout the Bill. We are going to have to do all sorts of things—we will debate other amendments in this area today—to make sure that their terms of service are conformant with what we want from them in this Bill. They are going to have to redo their complaints and redress mechanisms. All of this is going to have to change and Ofcom is going to be the regulator that tells them how to do it; that is what we are asking Ofcom to tell them to do.
My fundamental concern here, if we introduce another element, is that there is a whole different structure under consumer law where you might go to local trading standards or the CMA, or you might launch a private action. In many cases, this may overlap. The overlap is where consumer law states that goods must be provided with reasonable care and skill and in a reasonable time. That sounds great, but it is also what the Online Safety Bill is going to be doing. We do not want consumer law saying, “You need to write your terms of service this way and handle complaints this way”, and then Ofcom coming along and saying, “No, you must write your terms of service that way
and handle complaints that way”. We will end up in a mess. So I just think that, from a practical point of view, we should be very focused in this Bill on getting all of this right from an Online Safety Bill point of view, and very cautious about introducing another element.
Perhaps one of the attractions of the consumer law point for those who support the amendment is that it says, “Your terms must be fair”. It is the US model; you cannot have unfair terms. Again, I can imagine a scenario in which somebody goes to court and tries to get the terms struck down because they are unfair but the platform says, “They’re the terms Ofcom told me to write. Sort this out, please, because Ofcom is saying I need to do this but the courts are now saying the thing I did was unfair because somebody feels that they were badly treated”.