Lord Puttnam – defender of democracy

As chair of the Law Reform Committee of the City of Westminster and Holborn Law Society, I am constantly reading government consultations, white papers, draft bills and select committee reports.

One that particularly stands out is the report of the Select Committee on Democracy and Digital Technologies, Digital Technology and the Resurrection of Trust (published June 2020). The select committee was chaired by Lord Puttnam.

The report contains a compelling narrative which highlights the need for wider debate. At 153 pages and 77,000 words, it is the same length of an average novel. As Lord Puttnam explains: “It took 77,000 [words] to explain the complexity of the issues, and it is an exercise in complexity”.

The select committee was bi-partisan and all of its members – including the four Conservative members – voted in favour of the report. In Lord Puttnam’s word, it is “very important to point out that it was unanimous. One of things that may have taken the government by surprise”.

Lord Puttnam is a senior politician, chair of the Film Distribution Association and one of the most acclaimed British film producers and film makers of all time.

Democracy is his passion and he has highlighted the fragility of democracy over many years (see davidputtnam.com/viewNews/n/tedx---fragility-of-democracy-and-how-we-need-to-take-greater-care-of-it/). He cares deeply about upholding the standards of public office.

Lord Puttnam is admired for being fair-minded, famed for his ability to find common ground and to seek compromise. His legacy will be that Ofcom’s principal duty is to the citizen, its secondary duty is the consumer via competition.

Select committee

The select committee was appointed by the House of Lords in June 2019 and reappointed in October 2019 and January 2020 “to consider democracy and digital technologies”. The report was prepared and delivered to parliament during the global pandemic and (as noted in the foreword) presented at a time of a pandemic of misinformation and disinformation.

It covers a wide range of subjects such as daily activity across social media, how to inform citizens, how to navigate misinformation, the online harms agenda, how Google’s algorithms work, free and fair elections and the powers of the Electoral Commission. It’s thought-provoking summer holiday read, easy to dive into.

I was interested with the mind-blowing statistics on daily activity across social media platforms globally: Facebook has 1.73bn daily active users; YouTube has 1bn hours of videos watched daily; Google has 3.5bn daily searches; and Twitter has 5bn daily tweets.

Passion for democracy

It was against that background that I wanted to talk to Lord Puttnam about the critical issues, the result was a wide-ranging discussion around democracy.

Philip Henson (PH) – The report makes some interesting points about the electoral system. Is online voting something you would embrace?

Lord Puttnam (LP) – As a result of the pandemic, we in the Lords now vote online. It's been extremely successful. I don't think we will ever go back to voting in chamber, even when we are back in the chamber; I don’t think we will go back to in chamber queuing [where the Lords go to vote].

The only negative of that is that the queuing system requires ministers to come through. And it's the only time that you can be absolutely certain of being able to buttonhole or get hold of a minister. It has that one great advantage. But I don't think we'll ever go back to non-electronic voting.

The system works perfectly well. It's validated by us with a code every day. I guess you could take that and reapply that to the fact that yes, electronic voting can absolutely work.

PH – On issue of the Electoral Commission, there were some aspects you drew out [in the Report] about... the lack of funds given to them. Do you think that's deliberate with, just drip feeding them a little?

LP – Absolutely. And I think both major parties are guilty. I do think it’s absolutely deliberate. I think we hear it all the time about the whole idea of electoral exceptionalism. It came out [recently] in terms of the Online Harms Bill. The government will create a kind of thing around the elections, so that MPs cannot be accused of misinformation, that MPs don't fall under the Code [of conduct].

It will be kind of excused, but I think that we're talking about three weeks prior to the election. You and I can't go after Boris Johnson for the battle bus.

PH –  I had not appreciated that parliamentary libraries closed down before an election.

LP – None of us knew that. None of us understood that at the very moment you need information. It's not available.

PH –  I was reflecting upon the Good Law Project, and the pushes for disclosure and information that they are trying to get from the government, and the case of judicial review specifically. What’s your view on accountability and how government is trying to put another layer between things?

LP – You are looking at ‘the there and now’ where, without doubt, this will invite early judicial review. Either from the platforms who will treat it as a cost of business, looking for clarification or looking for an edge; or from civil society whereby on behalf of, let’s say one of the children's organisations, takes them to judicial review.

In that situation who is the defendant? Is it Ofcom or the government? And the answer [from the minister] was, if the judicial view is about process, it would be Ofcom; if it was about outcome, it will be the government.

The other vexed issue is the issue of personal liability – whether or not the boards of these platforms had personal liability for harms. Now what the government claims they're doing, what they think legislation will do, is they will reserve powers on personal liability. But they won't be on the face of the bill – they will reserve the powers that in the event that the companies are not observing the laws, they will have the reserved powers to impose personal liability.

Now, whether that is enough to frighten the board of Google or the board of Facebook, I don't know.

PH – What do you think about the revolving door with government and these tech platforms?

LP – These guys can buy people. It’s a very, very concerning thing. I don’t know what [former deputy prime minister] Clegg gets paid, but you can bet it’s seven figures.

PH – What worries you most and keeps you up at night?

LP – I think I've always felt ‘democracy’ all my life. I've been arguing democracy is fragile. And my argument is it’s just like carrying a Ming bowl across a rather glassy floor.

I mean, I looked at Kobe versus Trump [Bryant, the late NBA star, criticised the former president in 2017 over his 'Make America Great Again' slogan]. You just see how complacent we've been about what we would regard as societal norms.

PH – We were taught in law school about individual responsibility and collective responsibility. There's been a lot of disrespect for the judiciary, and that's something that causes me concern and should concern others. Remember the headline on one of the newspapers – ‘the enemies of the people’ type rhetoric?

LP –  I'll give you a little story. This actually happened. Five years ago I was the government's trade and cultural envoy to south east Asia. I really enjoyed it. It was a really interesting job that took me to Cambodia. And I got to have a sort of relationship with [prime minister] Hun Sen, who was good to me due to the Killing Fields [1984 biographical film about the Khmer Rouge, produced by David Puttnam – which won three Academy Awards and eight BAFTAs].

The basis of what we were trying to do there was very much based on rule of law.

We were bringing lawyers, very senior retired judges out, talking about the creation of the implementation of the rule of law, the independence of judiciary. We did a lot of work. And that would be the recurring feature of conversation I've had each year.

So the last time I go in... and he picks up that newspaper, he literally says “explain this to me”.

I wrote to Theresa May and I resigned, I can't do this job. And so I resigned six months early. I feel it's impossible. It's embarrassing. It's really embarrassing.

PH – We all know, whether in the legal world or the creative world, there is a legal route which is expensive, timely or we will just do other things.

LP – Absolutely. I totally agree. I am very, very troubled. Because going back to Cambodia for a second and what I learned, and as President of UNICEF in the 1990s, the thing that I learned at UNICEF is that in countries where the rule of law is not embedded you are immediately in trouble.

So even at UNICEF we would put a lot of money into legal training, federating lawyers to build some strength around who they were and the move towards judicial independence. It’s something I have been mulling for quite a long time.

I did a movie called Defence of the Realm years ago, which touched on a lot of this – independence of journalism and the way that it impacts onto the judiciary and the way you’ve got elements in the UK which are set up to appoint any judicial oversight.

It is very troubling. Equilibrium is always difficult to keep. You have to keep your thumb on the side of judicial independence or it goes. It’s not something that stays there due to the natural order of things.

PH – What do you think about Facebook and suspending Trump?

LP – On the one hand, sort of a relief. On the other hand, it does throw up some really interesting important freedom of speech issues. We actually addressed this in the report. We talked about the amplification issue, and what we pointed out was that Facebook has the ability [that] if you had 5,000 followers on a particular post, you get a green tick. The algorithmic is able to recognise 5,000 as a number. We are saying that at that number what you are saying has to be validated, ie it isn’t just being amplified. What we attacked was the amplification, not free speech.

PH – You recommended a code of practice for algorithms for Ofcom as well – do you think that this is something Ofcom would ever have?

LP – It’s a live issue. What we are arguing is that the code of conduct should be different from the company’s terms and conditions; and the original drafting of the Online Harms Bill was suggesting that it was the implementation by the companies of the terms and conditions. What we are saying is that the terms and conditions will have to reflect the code of conduct and not the other way round.

The more in parliament that we can amend and improve the code of conduct; the companies will be required, at least in the UK, for the terms and conditions to reflect that.

PH – What do you think about journalism on these platforms. How will they affect the smaller regional papers?

LP – I think a deal will be struck. The issue there is transparency. Who does it benefit?

A piece of research I have been relying on recently says that ‘misinformation flourishes when local news is weakest’. The lack of local news encourages the impact of misinformation. The local newspaper can be a discipline in the way social media cannot.

People pay lip service to the fact that there is no reporting of local planning decisions or local courts. Actually, it’s rather more serious than people realise. Its all part of accountability. You are entitled to know if a local criminal got off or was given an unreasonable sentence.

Philip Henson is head of employment at ebl miller rosenfalck solicitors millerrosenfalck.com