My Lords, I shall explain why the simple change of one word is not as simple as it may at first seem. My noble friend’s Amendment 245 seeks to amend the rule that a service must meet both a number-of-users threshold and a functionality threshold to be designated as category 1 or 2B. It would instead allow the Secretary of State by regulation to require a service to have to meet only one or other of the two requirements. That would mean that smaller user-to-user services could be so categorised by meeting only a functionality threshold.
In practical terms, that would open up the possibility of a future Secretary of State setting only a threshold condition about the number of users, or alternatively about functionality, in isolation. That would create the risk that services with a high number of users but limited functionality would be caught in scope of category 1. That could be of particular concern to large websites that operate with limited functionality for public interest reasons, and I am sure my noble friend Lord Moylan can think of one that fits that bill. On the other hand, it could capture a vast array of low-risk smaller services merely because they have a specific functionality—for instance, local community fora that have livestreaming capabilities. So we share the concerns of the noble Lord, Lord Allan, but come at it from a different perspective from him.
My noble friend Lady Morgan mentioned the speed of designation. The Bill’s approach to the pace of designation for the category 1 watchlist and register is flexible—deliberately so, to allow Ofcom to act as quickly as is proportionate to each emerging service. Ofcom will have a duty proactively to identify, monitor and evaluate emerging services, which will afford it early visibility when a service is approaching the category 1 threshold. It will therefore be ready to act accordingly to add services to the register should the need arise.
The approach set out in my noble friend’s Amendment 245 would not allow the Secretary of State to designate individual services as category 1 if they met one of the threshold conditions. Services can be designated as category 1 only if they meet all the relevant threshold conditions set out in the regulations made by the Secretary of State. That is the case regardless, whether the regulations set out one condition or a combination of several conditions.
The noble Baroness, Lady Finlay, suggested that the amendment would assist Ofcom in its work. Ofcom itself has raised concerns that amendments such as this—to introduce greater flexibility—could increase the risk of legal challenges to categorisation. My noble friend Lady Morgan was part of the army of lawyers before she came to Parliament, and I am conscious that the noble Lord, Lord Clement-Jones, is one as well. I hope they will heed the words of the regulator; this is not a risk that noble Lords should take lightly.
I will say more clearly that small companies can pose significant harm to users—I have said it before and I am happy to say it again—which is why there is no exemption for small companies. The very sad examples that my noble friend Lady Morgan gave in her speech related to illegal activity. All services, regardless of size, will be required to take action against illegal content, and to protect children if they are likely to be accessed by children. This is a proportionate regime that seeks to protect small but excellent platforms from overbearing regulation. However, I want to be clear that a small platform that is a font of illegal content cannot use the excuse of its size as an excuse for not dealing with it.
Category 1 services are those services that have a major influence over our public discourse online. Again, I want to be clear that designation as a category 1 service is not based only on size. The thresholds for category 1 services will be based on the functionalities of a service as well as the size of the user base. The thresholds can also incorporate other characteristics that the Secretary of State deems relevant, which could include factors such as a service’s business model or its governance. Crucially, Ofcom has been clear that it will prioritise engagement with high-risk or high-impact services, irrespective of their categorisation, to understand their existing safety systems and how they plan to improve them.
5.15 pm
Requiring all companies to comply with the full range of category 1 duties would divert these companies’ resources away from the vital task of tackling illegal content and protecting children, but we are clear that the popularity and characteristics of services can change. To that end, the Government have placed a new duty
on Ofcom to identify and publish a list of companies that are close to the category 1 thresholds. That will ensure that Ofcom proactively identifies emerging category 1 companies and is ready to assess and add them to the category 1 register without delay. This tiered approach will be kept under review by both Ofcom and the Government, both as part of the thresholds and as part of the post-legislative review conducted by the Secretary of State.
I am very grateful to noble Lords and Members of another place, as well as groups including the Antisemitism Policy Trust, the Center for Countering Digital Hate, Samaritans and Kick It Out for their tireless work on this issue. I hope that explains to my noble friend why we cannot support her amendment. I hope that she will not press it, but if she does the rest of these Benches will oppose it and the Government cannot accept adding it to the Bill.