Contribution
I thank the noble Baroness, Lady Kidron, for raising this important topic today, and thank noble Lords for the impassioned speeches that we have heard. As my noble friend Lady Jones mentioned in Committee, the ICO has been auditing the practices of several edtech service providers and is due to publish its findings later this year. I am pleased to be able to give the noble Baroness, Lady Kidron, a firm commitment today that the Government will use powers under the Data Protection Act 2018 to require the ICO to publish a new code of practice addressing edtech issues.
The noble Baronesses, Lady Kidron and Lady Harding, both raised important points about the specificity, and I will try to address some of those. I am grateful to the noble Baroness for her suggestions about what the code should include. We agree that the starting point for the new code should be that children merit special protection in relation to their personal data because they may be less aware of the risks and their rights in relation to its processing. We agree that the code should include guidance for schools on how to comply with their controller duties in respect of edtech services, and guidance for edtech services on fulfilling their duties under the data protection framework—either as processors, controllers or joint controllers. We also agree that the code should provide practical guidance for organisations on how to comply with their so-called:
“Data protection by design and by default”
duties. This would help to ensure that appropriate technical and organisational measures are implemented in the development and operation of processing activities undertaken by edtech services.
The noble Baroness suggested that the new code should include requirements for the ICO to develop the code in consultation with children, parents, educators, children’s rights advocates, devolved Governments and industry. The commissioner must already consult trade associations, data subjects and persons who appear to the commissioner to represent the interest of data subjects before preparing a code, but these are very helpful suggestions. The development of any new code will also follow the new procedures introduced by Clause 92 of this Bill. The commissioner would be required to convene an expert panel to inform the development of the code and publish the draft code. Organisations and individuals affected by the code would be represented on the panel, and the commissioner would be required to consider its recommendations before publishing the code.
Beyond this, we do not want to pre-determine the outcome of the ICO’s audits by setting out the scope of the code on the face of the Bill now. The audits might uncover new areas where guidance is needed. Ensuring a clear scope for a code, grounded in evidence, will be important. We believe that allowing the ICO to complete its audits, so that the findings can inform the breadth and focus of the code, is appropriate.
The ICO will also need to carefully consider how its codes interrelate. For example, the noble Baroness suggested that the edtech code should cover edtech services that are used independently by children at home and the use of profiling to make predictions about a child’s attainment. Such processing activities may also fall within the scope of the age-appropriate design code and the proposed AI code, respectively. We need to give the ICO the flexibility to prepare guidance for organisations in a way that avoids duplication. Fully understanding the problems uncovered by the ICO audits will be essential to getting the scope and content of each code right and reducing the risk of unintended consequences.
To complement any recommendations that come from the ICO and its audits, the Department for Education will continue to work with educators and parents to help them to make informed choices about the products and services that they choose to support teaching and learning. The noble Baroness’s suggestion that there should be a certification scheme for approved edtech service providers is an interesting one that we will discuss with colleagues in the Department for Education. However, there might be other solutions that could help schools to make safe procurement decisions, and it would not be appropriate to use the ICO code to mandate a specific approach.
The point about schools and the use of work by children is clearly important; our measures are intended to increase the protections for children, not to reduce them. The Government will continue to work closely with noble Lords, the Department for Education, the ICO and the devolved regions as we develop the necessary regulations following the conclusion of the ICO audit. I hope that the noble Baroness is pleased with this commitment and as such feels content to withdraw her amendment.