Lords Committee urges ministers to “change course” on social media regulation

• Letter from the Chair to Rt Hon Michelle Donelan MP, Secretary of State for Digital, Culture, Media and Sport, Department for Digital, Culture, Media and Sport
• Communications and Digital Committee

Background

The committee says there was no justification for giving the Government wide-ranging powers to “direct” Ofcom to change its codes of practice to reflect the views of the Secretary of State. Their letter highlights warnings that the change would see the UK depart from “the cornerstone of media regulation in western Europe, that there is an independent regulator and that the executive does not interfere”.

It also recommends reinstating a requirement for social media platforms to carry out risk assessments of the possible impact of their content on adults, similar to those which will be undertaken in relation to child users of services.

The committee recommends:

• Removing Clause 39 (1)(a) of the Bill, which gives the Culture Secretary powers to direct Ofcom on the development of its codes of practice. The letter warned that this would provide “needlessly expansive powers to undermine Ofcom’s independence by interfering with the actual implementation of the online safety regime”. It dismissed a proposed Government amendment, which sets out a list of grounds for issuing a direction, as “cosmetic and inadequate”.
• Amending provisions in Clause 39,which would allow the Culture Secretary repeatedly to demand modification to draft codes of practice, in a way which could result in “lengthy or infinite delay” without parliamentary oversight. The committee said it was “troubling” that the measure could potentially mire Ofcom in an indefinite private process of “ping-pong” with ministers before codes are laid before Parliament.
• The deletion of Clause 157 (1)(a) of the Bill, which gives the Culture Secretary powers to issue guidance to Ofcom on the exercise of its functions, to which the regulator must have regard. The committee said the proposed powers were “unnecessary and unconstrained” and could amount to needless intrusion into Ofcom’s day-to-day work.
• The reinstatement of requirements for social media platforms to carry out risk assessments for services for adults, to address concerns about online safety, transparency and freedom of expression. The committee acknowledged the Government’s objectives in removing ‘legal but harmful to adults’ provisions from the Bill. However, it said that maintaining adult risk assessments would support those objectives by requiring platforms to be transparent about how they manage the tension between protecting free speech and limiting access to content through user empowerment tools.

The letter also restates the Committee’s recommendation – set out in its 2021 report Digital Regulation: Joined-Up and Accountable – for the creation of a joint committee of both Houses of Parliament to scrutinise digital regulation.

Chair’s comment

Committee chair Baroness Stowell of Beeston says:

“The Government’s nonchalant approach to undermining Ofcom’s independence is worrying. We took evidence from ministers about this on 25 January and remain  unconvinced that many of the wide-ranging powers are necessary or justified.

“The new online safety regime is novel and will require ongoing oversight. But this needs to happen without diminishing Ofcom’s independence from Government, which is key to maintaining public trust.

“It is one thing for Ofcom to receive strategic direction and some guidance from Government where needed – and we support this. It is quite another to jeopardise the regulator’s independence on multiple fronts.  The best solution is to strengthen Parliament’s role, not the Government’s. 

“I am also troubled by the removal of requirements on social media platforms to assess the risk posed to adults using their services. Platforms must be required to provide transparency over how they will manage the tension between protecting free speech and limiting access to content.

“I urge ministers to take these concerns on board and amend the Bill accordingly as it makes its way through the Lords.”

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