Baroness Jones of Whitchurch (Lab)

My Lords, I acknowledge all the hard work, and the cross-party consensus, that went into creating the Online Safety Act. For all the questions that noble Lords are raising today, it is still seen as being a global leader on online safety, so it is certainly nothing we should be ashamed of. I still believe it will be transformative when it is rolled out in the next few weeks and months, when it really will begin to have an impact. I pay tribute to those who did all that work at the time. There has been a suggestion that we have just kowtowed in some way. I cannot tell noble Lords for how many hours, days and weeks my office and the Secretary of State’s office have pored over the detail of this to make sure that we feel we are doing the best we can to implement the Act in the way that was intended. Noble Lords who have read the draft statement of strategic priorities, which we sent to Ofcom, will see that we are reiterating a lot of the issues that colleagues around the Chamber are raising today. They are our priorities as well. It came down to the practicalities of some of the issues we were being asked to enforce. I hope that in my responses now I can address some of those questions. I should be specific about the user number thresholds that have been chosen. In response to the noble Baroness, Lady Morgan, the noble Lord, Lord Parkinson, and others, just to put it on the record, I note that Ofcom recommended category 1 threshold combinations of either: user numbers of more than 7 million UK users in addition to the functionality of forwarding or resharing user-generated content and the characteristic of a content recommender system to be met; or user numbers of more than 34 million UK users and a content recommender system to be met. Ofcom specifically set out in its research and advice, published last March, that it considered but discounted a recommendation that allowed for the categorisation of services for category 1 by reference exclusively to functionalities and characteristics. That was because the research indicated that user reach has an important role to play in content dissemination. Ofcom made a regulatory judgment on where to set the user number thresholds, based on an assessment of what comprised targeted and proportionate regulatory action. Ofcom also undertook sensitivity testing on the thresholds. In this debate it has been clear that some, such as the noble Lord, Lord Clement-Jones, think there will be services—particularly, as we have been debating, small but risky services—that evade the core duties of the Act. I want to assure noble Lords that the legislation does not allow for that. All regulated user-to-user services and search engines, no matter what their size, will be subject to the existing illegal content duties and, where relevant, the child safety duties; the categories do not change that. The codes on illegal content duties, which were laid in Parliament, have passed the objection period and may now be issued by Ofcom. The duties should be in effect next month. They will force services to put in place systems and processes to tackle illegal content and require services to name a senior person accountable for compliance. If a service is likely to be accessed by children, the child safety duties will require services to conduct a child safety risk assessment and provide safety measures for child users. We expect that these duties will come into effect this summer, on the basis that the codes for the duties will be passed by then. Together, the illegal content and child safety duties will mark the biggest material change in online safety for UK citizens since the internet era began. By Ofcom’s own assessment, the Act may cover up to 100,000 services of various sizes, showing that the legislation reaches far and wide to ensure important protections for users, particularly children, online. The noble Lord, Lord Clement-Jones, my noble friend Lord Stevenson, and the noble Baronesses, Lady Morgan and Lady Kidron, asked why category 1 thresholds are not risk-based. I will now turn to that. The decision of the Secretary of State to set the categorisation thresholds as per Ofcom’s recommendations, rather than deviating from its research, was as follows. When the OSA was introduced, category 1 thresholds were due to be assessed based on the level of risk of harm to adults from priority content disseminated by means of the service. As noble Lords will know, this was removed during the passage of the Bill by the then Government and replaced with consideration of the likely impact of the number of users of the service, its functionalities, and how easily, quickly and widely user-generated content is disseminated. This was a significant change and, while the risk of harm may be seen to be a more relevant factor, this is the position under the Act as it now stands. As I have already acknowledged, the successful amendment from the noble Baroness, Lady Morgan—which was raised by the noble Lords, Lord Clement-Jones and Lord Parkinson—did make it possible to require threshold conditions on functionality and characteristics to be met without user numbers. However, as I have set out, the considerations within the Act, Ofcom’s research and advice, and the risk of unintended consequences have meant that it is not currently workable to ignore user numbers when setting a threshold for category 1.