The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)

My Lords, as the Online Safety Act sets out, the Secretary of State must set thresholds for three categories of service: category 1, category 2A and category 2B. The services that fall into each of these categories must comply with additional duties, with category 1 services having the most duties placed on them. These duties are in addition to the core duties which apply to all user-to-user and search services in scope, including illegal content duties and child safety duties. All categorised services must comply with transparency reporting duties. They must also have terms on parents’ ability to access information about how their child used a service, in the tragic event that their child dies. Category 1 and 2A services also have additional duties to tackle paid-for fraudulent advertising. They will also have to comply with enhanced risk assessment and record-keeping duties. The most additional obligations will fall on category 1 services. These are the services with the most users, and which spread content easily, quickly and widely. To the extent it is proportionate to do so, category 1 services must give adults more choice about who they interact with and the content they see. That includes suicide, self-harm and hate-inciting content. Additionally, category 1 services must protect journalistic and news publisher content and content of democratic importance. The duties will also hold these companies to account over their terms of service, making sure that they keep the promises they make to their users. The Act requires that specific factors must be taken into account by the Secretary of State when deciding the thresholds for each category. The threshold conditions for user-to-user services, categories 1 and 2B, must be set on user numbers, functionalities and any other characteristics or factors related to the user-to-user part of the service the Secretary of State deems relevant. For category 2A, they must be set on the number of users of the search engine, plus any other factors or characteristics. For category 1, the key consideration is the likely impact of the number of users of the user-to-user part of the service and its functionalities on how quickly, easily and widely regulated user-generated content is disseminated by means of the service. For category 2A, the key consideration is the likely impact of the number of users of the search engine on the level of risk of harm to individuals from search content that is illegal or harmful to children. For category 2B, the key consideration is the likely impact of the number of users of the user-to-user part of the service and its functionalities on the level of risk of harm to individuals from illegal content and content that is harmful to children disseminated by means of the services. These considerations formed the basis of Ofcom’s independent research and advice, published in March last year, which the Secretary of State had to consider when setting threshold conditions. Once in force, these regulations will enable Ofcom to set up a public register of categorised services, which it expects to publish this summer. Ofcom will then consult on the remaining draft codes of practice and guidance, where relevant, for the additional duties. In laying these regulations before Parliament, the Secretary of State has considered Ofcom’s advice and decided to follow it. I know that this decision will not please everyone, so let me set out why it was made. Ofcom’s research concluded that, as the number of users of a service increases, so does how widely content spreads. The statutory consideration of category 1 under the Act is “how easily, quickly and widely regulated user-generated content is disseminated by means of the service”. Therefore, it was concluded that user numbers should not be ignored. Setting thresholds for category 1 that take into account the size and reach of services is also essential to make sure we avoid inadvertently categorising hundreds of small, low-risk services. I turn now to the regret amendment that the noble Lord, Lord Clement-Jones, has tabled before the House. It is disappointing that a regret amendment has been tabled. I understand that it is because of the noble Lord’s view that risk should be the main consideration for category 1. He would ideally like to see so-called “small but risky” services, such as small suicide forums, brought into scope. I also want to acknowledge that the successful amendment from the noble Baroness, Lady Morgan, made it possible to create threshold combinations by reference only to functionalities and any other factors or characteristics. However, in practice this was difficult to do at the time. In setting the threshold conditions, the Secretary of State must act within the legal framework, which means he still must consider easy, quick and wide dissemination of user-generated content for category 1. He must also act within the powers afforded to him in setting the thresholds, which does not allow for sub-delegation to outside parties, such as coroners or Ofcom. Unintended consequences were considered, including unintentionally categorising hundreds of small, low-risk services. I want to be very clear through this that the Government did consider options to bring small but risky services into scope, including those proposed by many thoughtful people on this complicated issue, but ultimately a workable and robust condition for capturing small but risky services was not found.