Report (1st Day)
Relevant documents: 28th and 38th Reports from the Delegated Powers Committee and 15th Report from the Constitution Committee. Scottish and Welsh legislative consent granted.
1: Before Clause 1, insert the following new Clause—
(1) This Act provides for a new regulatory framework which has the general purpose of making the use of internet services regulated by this Act safer for individuals in the United Kingdom.(2) To achieve that purpose, this Act (among other things)—(a) imposes duties which, in broad terms, require providers of services regulated by this Act to identify, mitigate and manage the risks of harm (including risks which particularly affect individuals with a certain characteristic) from—(i) illegal content and activity, and(ii) content and activity that is harmful to children, and(b) confers new functions and powers on the regulator, OFCOM.(3) Duties imposed on providers by this Act seek to secure (among other things) that services regulated by this Act are—(a) safe by design, and(b) designed and operated in such a way that—(i) a higher standard of protection is provided for children than for adults,(ii) users’ rights to freedom of expression and privacy are protected, and(iii) transparency and accountability are provided in relation to those services.”Member’s explanatory statement
This amendment provides for a new introductory Clause.
My Lords, I am pleased that we are on Report, and I thank all noble Lords who took part in Committee and those with whom I have had the pleasure of discussing issues arising since then, particularly for their constructive and collaborative nature, which we have seen throughout the passage of Bill.
In Committee, I heard the strength of feeling and the desire for an introductory clause. It was felt that this would help make the Bill less complex to navigate and make it less easy for providers to use this complexity to try to evade their duties under it. I have listened closely to these concerns and thank the noble Lord, Lord Stevenson of Balmacara, the noble Baroness, Lady Merron, and others for their work on this proposal. I am particularly grateful for their collaborative approach to ensuring the new clause has the desired effect without causing legal uncertainty. In that spirit, I am pleased to introduce government Amendment 1. I am grateful too to the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones, who have signed their names to it. That is a very good start to our amendments here on Report.
Amendment 1 inserts an introductory clause at the start of the Bill, providing an overarching statement about the main objectives of the new regulatory framework. The proposed new clause describes the main broad objectives of the duties that the Bill imposes on providers of regulated services and that the Bill confers new functions and powers on Ofcom.
The clause makes clear that regulated services must identify, mitigate and manage risks that particularly affect people with a certain characteristic. This recognises that people with certain characteristics, or more than one such characteristic, are disproportionately affected by online harms and that providers must account for and protect them from this. The noble Baroness, Lady Merron, raised the example of Jewish women, as did the noble Baroness, Lady Anderson of Stoke-on-Trent. Sadly, they have first-hand experience of the extra levels of abuse and harm that some groups of people can face when they have more than one protected characteristic. It could just as easily be disabled women or queer people of colour. The noble Baroness, Lady Merron, has tabled several amendments highlighting this problem, which I will address further in response to the contribution I know she will make to this debate.
Subsection 3 of the proposed new clause outlines the main outcomes that the duties in the Bill seek to secure. It is a fundamental principle of the legislation that the design of services can contribute to the risk of users experiencing harm online. I thank the noble Lord, Lord Russell of Liverpool, for continuing to raise this issue. I am pleased to confirm that this amendment will state clearly that a main outcome of the legislation is that services must be safe by design. For example, providers must choose and design their functionalities so as to limit the risk of harm to users. I know this is an issue to which we will return later on Report, but I hope this provides reassurance about the Government’s intent and the effect of the Bill’s framework.
Services must also be designed and operated in a way which ensures that a higher standard of protection is provided for children than for adults, that users’ rights to freedom of expression and privacy are protected and that transparency and accountability are enhanced. It should be noted that we have worked to ensure that this clause provides clarity to those affected by the Bill without adversely affecting the interpretation or effect of the substantive provisions of the rest of the Bill. As we debated in Committee, this is of the utmost importance, to ensure that this clause does not create legal uncertainty or risk with the interpretation of the rest of the Bill’s provisions.
I hope that your Lordships will welcome this amendment and I beg to move.
Amendment 2 (to Amendment 1)
2: Before Clause 1, in subsection (2)(a), after “characteristic” insert “, or a combination of characteristics”
Member’s explanatory statement
This amendment to the Minister’s introductory Clause makes it clear that some internet users experience a higher level of harm than others, as a result of having multiple characteristics.
My Lords, I would like to start on a positive note by thanking the Minister for responding to the clear signals that were expressed across the House that a new introductory clause, which is before us in government Amendment 1, would enhance the Bill and set it on its way to be in the best shape that can be achieved by noble Lords working together. I am glad to acknowledge the contribution of my noble friend Lord Stevenson of Balmacara, who has worked to get this in the right place—as the Minister acknowledged. He has been supported in his endeavours by the noble Baroness, Lady Kidron, and the noble Lord, Lord Clement-Jones. It is a great step forward, which I hope shows how we all mean to go on.
This new clause gives a real lift to what was essentially a straightforward summary of various parts of the Bill. I sense that noble Lords shared my disappointment that what was in place originally did not harness what the Bill seeks to do. To have left it unamended would have been a missed opportunity and it is in the spirit, if not the exact recommendation, of the Joint Committee, that the government amendment has come forward. So I am glad to welcome this new introductory clause that sets out the purpose, duties and powers—among other things—that will be invested in the Act. This new clause sets out what it will really mean to people and organisations and I hope that this can be a template for other Bills that come before the House.
Following through on this theme of clarity, I am glad to speak to the amendments in my name—Amendment 2, which has also been signed by the noble Lord, Lord Clement-Jones, and Amendments 54 and 173. They all have the same intent of responding to the indisputable evidence that having more than one protected characteristic greatly increases the level of harm experienced online. Amendment 2 seeks to amend the new and very welcome introductory clause further, by making that clear up front.
I am grateful to the Minister for his willingness to engage on this subject. I know that he accepts the premise of the point that I have been pressing. As he mentioned, and to give just one example, Jewish women find themselves at the intersection of both anti-Semitic and misogynistic abuse. It is as though online abusers multiply the vitriol by at least the number of protected characteristics, such that it feels that the abuse knows no bounds, manifesting in far too many examples of Jewish women in the public eye on the receiving end of death, rape and other serious threats.
In our discussions, the Minister referred me to Section 6 of the Interpretation Act 1978, which says that when interpreting statute,
“words in the singular include the plural and words in the plural include the singular”.
This was as much an education for the Minister as it was for me and, judging by the response, for other noble Lords. However, the key point is that this is not just about semantics. Those looking to the Online Safety Bill for protection will not be cross-referencing to a section of a 1978 Act.
I hope that the Minister will be forthcoming with agreement to make the necessary changes in order that we can get to the place which we all want to get to. I beg to move.
My Lords, I will speak to Amendment 1, to which I was happy to add my name alongside that of the Minister. I too thank the noble Lord, Lord Stevenson, for tabling the original amendment, and my noble and learned friend Lord Neuberger for providing his very helpful opinion on the matter.
I am especially pleased to see that ensuring that services are safe by design and offer a higher standard of protection for children is foundational to the Bill. I want to say a little word about the specificity, as I support the noble Baroness, Lady Merron, in trying to get to the core issue here. Those of your Lordships who travel to Westminster by Tube may have seen TikTok posters saying that
“we’re committed to the safety of teens on TikTok. That’s why we provide an age appropriate experience for teens under 16. Accounts are set to private by default, and their videos don’t appear in public feeds or search results. Direct messaging is also disabled”.
It might appear to the casual reader that TikTok has suddenly decided unilaterally to be more responsible, but each of those things is a direct response to the age-appropriate design code passed in this House in 2018. So regulation does work and, on this first day on Report, I want to say that I am very grateful to the Government for the amendments that they have tabled, and “Please do continue to listen to these very detailed matters”.
With that, I welcome the amendment. Can the Minister confirm that having safety by design in this clause means that all subsequent provisions must be interpreted through that lens and will inform all the decisions of Report and those of Ofcom, and the Secretary of State’s approach to setting and enforcing standards?
My Lords, I too thank my noble friend the Minister for tabling Amendment 1, to which I add my support.
Very briefly, I want to highlight one word in it, to add to what the noble Baroness, Lady Kidron, has just said. The word is “activity”. It is extremely important that in Clause 1 we are setting out that the purpose is to
“require providers of services regulated by this Act to identify, mitigate and manage”
not just illegal or harmful content but “activity”.
I very much hope that, as we go through the few days on Report, we will come back to this and make sure that in the detailed amendments that have been tabled we genuinely live up to the objective set out in this new clause.
My Lords, I too support the Minister’s Amendment 1. I remember vividly, at the end of Second Reading, the commitments that we heard from both Front-Benchers to work together on this Bill to produce something that was collaborative, not contested. I and my friends on these Benches have been very touched by how that has worked out in practice and grateful for the way in which we have collaborated across the whole House. My plea is that we can use this way of working on other Bills in the future. This has been exemplary and I am very grateful that we have reached this point.
My Lords, I am grateful to my noble friend the Minister for the meeting that he arranged with me and the noble Baroness, Lady Fox of Buckley, on Monday of this week.
Although we are on Report, I will start with just one preliminary remark of a general character. The more closely one looks at this Bill, the clearer it is that it is the instrument of greatest censorship that we have introduced since the liberalisation of the 1960s. This is the measure with the greatest capacity for reintroducing censorship. It is also the greatest assault on privacy. These principles will inform a number of amendments that will be brought forward on Report.
Turning now to the new clause—I have no particular objection to there being an introductory clause—it is notable that it has been agreed by the Front Benches and by the noble Baroness, Lady Kidron, but that it has not been discussed with those noble Lords who have spoken consistently and attended regularly in Committee to speak up in the interests of free speech and privacy. I simply note that as a fact. There has been no discussion about it with those who have made those arguments.
Now, it is true that the new clause does refer to both free speech and privacy, but it sounds to me very much as though these are written almost as add-ons and afterthoughts. We will be testing, as Report stage continues, through a number of amendments, whether that is in fact the case or whether that commitment to free speech and privacy is actually being articulated and vindicated in the Bill.
My Lords, needless to say, I disagree with what the noble Lord, Lord Moylan, has just been saying precisely because I believe that the new clause that the Minister has put forward, which I have signed and has support across the House, expresses the purpose of the Bill in the way that the original Joint Committee wanted. I pay tribute to the Minister, who I know has worked extremely hard, in co-operation with the noble Lord, Lord Stevenson of Balmacara, to whom I also pay tribute for getting to grips with a purpose clause. The noble Baronesses, Lady Kidron and Lady Harding, have put their finger on it: this is more about activity and design than it is about content, and that is the reason I fundamentally disagree with the noble Lord, Lord Moylan. I do not believe that will be the impact of the Bill; I believe that this is about systemic issues to do with social media, which we are tackling.
I say this slightly tongue-in-cheek, but if the Minister had followed the collective wisdom of the Joint Committee originally, perhaps we would not have worked at such breakneck speed to get everything done for Report stage. I believe that the Bill team and the Minister have worked extremely hard in a very few days to get to where we are on many amendments that we will be talking about in the coming days.
I also want to show my support for the noble Baroness, Lady Merron. I do not believe it is just a matter of the Interpretation Act; I believe this is a fundamental issue and I thank her for raising it, because it was not something that was immediately obvious. The fact is that a combination of characteristics is a particular risk in itself; it is not just about having several different characteristics. I hope the Minister reflects on this and can give a positive response. That will set us off on a very good course for the first day of Report.
My Lords, this has indeed set us on a good course, and I am grateful to noble Lords for their questions and contributions. I apologise to my noble friend Lord Moylan, with whom I had the opportunity to discuss a number of issues relating to freedom of expression on Monday. We had tabled this amendment, and I apologise if I had not flagged it and sought his views on it explicitly, though I was grateful to him and the noble Baroness, Lady Fox of Buckley, for their time in discussing the issues of freedom of expression more broadly.
I am grateful to my noble friend Lady Harding and to the noble Baroness, Lady Kidron, for their tireless work over many months on this Bill and for highlighting the importance of “content” and “activity”. Both terms have been in the Bill since its introduction, for instance in Clauses 5(2) and (3), but my noble friend Lady Harding is right to highlight it in the way that she did. The noble Baroness, Lady Kidron, asked about the provisions on safety by design. The statement in the new clause reflects the requirements throughout the Bill to address content and activity and ensure that services are safe by design.
On the amendments tabled by the noble Baroness, Lady Merron, which draw further attention to people who have multiple characteristics and suffer disproportionately because of it, let me start by saying again that the Government recognise that this is, sadly, the experience for many people online, and that people with multiple characteristics are often at increased risk of harm. The Bill already accounts for this, and the current drafting captures people with multiple characteristics because of Section 6 of the Interpretation Act 1978. As she says, this was a new one to me—other noble Lords may be more familiar with this legacy of the Callaghan Government—but it does mean that, when interpreting statute, words in the singular include the plural and words in the plural include the singular.
If we simply amended the references that the noble Baroness highlights in her amendments, we would risk some uncertainty about what those provisions cover. I sympathise with the concern which lies behind her amendments, and I am grateful for her time in discussing this matter in detail. I agree that it would be helpful to make it clearer that the Bill is designed to protect people with multiple characteristics. This clause is being inserted to give clarity, so we should seek to do that throughout.
We have therefore agreed to add a provision in Clause 211—the Bill’s interpretation clause—to make clear that all the various references throughout the Bill to people with a certain characteristic include people with a combination of characteristics. This amendment was tabled yesterday and will be moved at a later day on Report, so your Lordships’ House will have an opportunity to look at and vote on that. I hope that that provision clarifies the intention of the wording used in the Bill and puts the issue beyond doubt. I hope that the noble Baroness will be satisfied, and I am grateful to all noble Lords for their support on this first amendment.
My Lords, I am grateful to the Minister for his response. It is a very practical response and certainly one that I accept as a way forward. I am sure that the whole House is glad to hear of his acknowledgement of the true impact that having more than one protected characteristic can have, and of his commitment to wanting the Bill to do the job it is there to do. With that, I am pleased to withdraw the amendment in my name.
Amendment 2 (to Amendment 1) withdrawn.
Amendment 1 agreed.
Clause 162: False communications offence
2A: Clause 162, page 141, line 32, after “psychological” insert “, financial”
Member’s explanatory statement
This amendment, along with the other amendment to Clause 162 in the name of Baroness Buscombe, would widen the scope of the offence to include financial harm and harm to the subject of the false message arising from its communication to third parties.
My Lords, I shall speak briefly to Amendments 2A, 2B and 5A, which are in my name but perhaps more importantly in the names of my noble friends Lady Buscombe and Lord Leicester. I want to make it quite clear that this is not a contentious debate, in the sense that I had a very useful meeting with my noble friend the Minister on Monday 3 July, in which we set out to each other our respective concerns about the content of the Bill and how it does not protect the people that my noble friends and I seek to protect. My noble friend the Minister explained the practical difficulties faced in trying to introduce these provisions into this Bill. I think we probably agreed to differ. I hope I do not misinterpret what he told me the other day, but, essentially, I think the Government’s view is that an amendment along the lines that we propose might sit more suitably within the digital markets Bill. I am not entirely sure about that, but I am not going to have a fight about it this afternoon.
I will make some short points. Having listened to the debate on the Government’s Amendment 1, I suggest that our proposal that “financial” should be included in the types of damage referred to in Clause 162(1)(c)—that a person commits an offence if
“at the time of sending it, the person intended the message, or the information in it, to cause non-trivial psychological”,
we would then add in “financial”,
“or physical harm to a likely audience”—
fits in very well with Amendment 1 and the point raised by my noble friend Lady Harding on proposed new subsection (2), which says:
“To achieve that purpose, this Act (among other things) … imposes duties which, in broad terms, require providers of services … to … mitigate and manage the risks of harm … from … illegal content and activity”.
At our meeting the other day and in Committee, we talked about making it a criminal act to post damaging material about, for example, a business, such as one that sells meat, which becomes the victim of a vegan pile-on. It could be a local bed and breakfast, an Airbnb, a restaurant or pub that is owned by people who, for example, enjoy sports that others disapprove of—to take an easy and obvious example, hunting. In so far as hunting is still a permitted and legal activity, there are none the less people who vehemently disapprove of it, and they take their disapproval to the extent that they pile on abusive, damaging and false accusations on the internet, to the financial damage, quite apart from the mental upset, of those who run those businesses. We are talking not about large corporations but about individuals who own pubs, restaurants, small shops or whatever it might be, whose livelihoods and psychological well-being could well be affected by this.
We think it would be a good idea not only if this sort of activity were criminalised but if the providers and operators of the websites and so on took on the moral responsibility for what those who use their sites are doing. That duty, which I would say goes beyond morality—it is a social, moral and legal duty—translates across to the Government. It is the duty of the Government to protect small business people running perfectly legitimate businesses from this sort of mob activity—in the jargon, pile-ons. I therefore urge the Government, although I accept their concerns about the difficulty of using this particular Bill, to think imaginatively and positively about how they can protect the victims and potential victims of the activity I refer to.
Nothing that we propose would affect the legitimate rights to freedom of expression or privacy set out in Amendment 1. The law as it stands—I refer to the Defamation Act 2013, Article 10 of the European Convention on Human Rights and the common law—allows for restriction of people’s “right” to tell damaging lies. We do not need to get too prissy about protecting the rights of liars who wish to go around damaging other people’s businesses.
That, in essence, is the long and the short of it. I look forward to the Government coming forward in short order with some positive proposals about what they want to do, and how they propose to do it, to protect this group of people who have had their lives and their businesses damaged and who will continue to be at risk until Parliament does something about it. I beg to move.
My Lords, I will speak to Amendment 5B in my name and that of my noble friend Lord Clement-Jones. I am reminded that this is a new stage of the Bill, so I should declare my interests. I have no current financial interests in the tech sector, but until 2019 I worked for one of the large technology companies that will be regulated, doing the kind of censorship job that the noble Lord, Lord Moylan, is concerned about. We clearly did not do it very well or we would not be here today replacing people like me with Ofcom.
Amendment 5B concerns an issue that we raised in Committee: the offence of encouragement of self-harm. That new offence was broadly welcomed, including on these Benches. We believe that there is scope, in some circumstances, to seek criminal prosecution of individuals who, online or otherwise, maliciously seek to encourage other people to harm themselves. The concern we raised in Committee, which we come back to today, is that we want the offence to be used in a way that we would all agree is sensible. We do not want people who are trying to help individuals at risk of self-harm to become concerned about and afraid of it, and to feel that they need to limit activities that would otherwise be positive and helpful.
In Committee we suggested that one way to do this would be to have a filter where the Director of Public Prosecutions looked at potential prosecutions under the new offence. We take a different approach with the amendment, which would in some senses be more effective, which is to explicitly list in the Bill the three categories of activity that would not render an individual liable to prosecution.
The first is people who provide an educational resource. We should be clear that some educational resources that are intended to help people recognise self-harm and turn away from it can contain quite explicit material. Those people are concerned that they might, in publishing that material with good intent, accidentally fall foul of the offence.
The second category is those who provide support—individuals providing peer support networks, such as an online forum where people discuss their experience of self-harm and seek to turn away from it. They should not be inadvertently caught up in the offence.
The third category is people posting information about their own experience of self-harm. Again, that could be people sharing quite graphic material about what they have been doing to themselves. I hope that there would be general agreement that we would not interpret, for example, a distressed teenager sharing material about their own self-harm, with the intent of seeking advice and support from others, as in some way encouraging or assisting others to commit self-harm themselves.
There is a genuine effort here to try to find a way through so that we can provide assurances to others. If the Minister cannot accept the amendment as it is, I hope he will reaffirm that the categories of people that I described are not the target of the offence and that he will be able to offer some kind of assurance as to how they can feel confident that they would not fall foul of prosecution.
Additionally, some of these groups feel with some conviction that their voices have not been as prominent in the debate as those of other organisations. The work they do is quite sensitive, and they are often quite small organisations. Between Report and the Bill becoming law, I hope that those who will be responsible for doing the detailed work around guidance on prosecutions will meet with those people on the front line—again, specificity is all—and that those who are trying to work out how to make this legislation work will meet with the people doing that work, running those fora and engaging with the young people who seek help around self-harm to look in detail at what they are doing. That would be extraordinarily helpful.
Those are my two asks. Ideally, the Government would accept the amendment that we have tabled, but if not I hope that they can give the assurance that the three groups I listed are not the target and that they will commit to having relevant officials meet with individuals working on the front line, so that we can make sure that we do not end up prosecuting individuals without intending to.
My Lords, I support all the amendments in this group. However, what I have to say on my own amendments will take up enough time without straying on to the territory of others. I ask noble colleagues to please accept my support as read. I thank the Minister for meeting me and giving context and explanation regarding all the amendments standing in my name. I also welcome the government amendments on intimate image abuse in another group and on digitally altered images, which impinge directly on the cyberflashing amendments.
It is clear that the Government’s heart is in the right place, even if their acceptance of a consent-based law is not. I also thank the Law Commission for meeting me and explaining the thinking behind and practicalities of how the new law in relation to cyberflashing will work, and how the existing court system can help, such as juries deciding whether or not they believe the defendant. Last but definitely not least, I acknowledge the help that I have received from Professor Clare McGlynn, and Morgane Taylor from Bumble—both immensely knowledgeable and practical people who have inspired, informed and helped throughout.
I start with Amendments 5C and 7A in my name and that of the noble Baroness, Lady Finlay. I understand that the Government are following the advice of the Law Commission in refusing to accept consent-based defence, but I point out gently that this is something that the Government choose, and sometimes choose not, to do. Although the Law Commission consulted widely, that consultation did not show support for its proposals from victims and victims’ organisations. I am still of the view that a consent-based requirement would have prevented many unsolicited images being received by women and girls. I still worry that young girls may be socialised and sexualised by their peers who say that they are sending these images for a laugh. These girls do not have the maturity to say that they do not find it funny, but pretend it is okay while cringing with humiliation inside. Consent-based legislation would afford them the best protection and educate young girls and men that not only are women and girls frequently not interested in seeing a picture of a man’s willy, but girls think differently from boys about this. Who knew?
I also believe that a consent-based law would provide the most suitable foundation for education and prevention initiatives. However, I have listened to the Minister and the Law Commission. I have been told that, if it got to court, the complainant would not be humiliated all over again by having to give evidence in court and admit the distress and humiliation they felt. But according to the Minister, like the new intimate image amendment tabled by the Government themselves, it is up to the Crown Prosecution Service to follow it up and, after making their statement of complaint, my understanding is that the complainant does not have to take part further—more of that later. However, given the current success rate of only 4% of even charging alleged perpetrators in intimate image abuse cases, I worry that not only will victims continue to be reluctant to come forward but the chances of prosecution will be so slim that it will not act as a deterrent. We know from experience of sharing sexual images without consent, that the motivation thresholds have limited police investigations and prosecutions due to the evidential challenges. That is what the Law Commission has recommended as regards the introduction of a consent-based image offence.
The only thing that would give me hope is a major education or re-education campaign in schools and society. Will the Minister confirm that such an education and publicity campaign will happen? Will there be a budget allocated to carry it out? I should like it on the record that the Government will produce the campaign within six months of the passing of the Act. Similarly, the Minister has assured me that he will monitor carefully the success of the implemented Act. Please will he make those assurances in his reply to this group and give some kind of timescale?
I come to the recklessness amendment, Amendment 6, which is new. It was originally drafted by Professor McGlynn and Maria Miller at the Commons stage to give a kind of compromise on a recklessness standard, but it has not yet been considered by either House. The specific wording follows recent laws on upskirting and down-blousing in Northern Ireland in the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022. The wording has been tested, reviewed and approved by the justice ministry and the Northern Ireland Assembly. In the Bill, there are two ways in which to prove the cyberflashing offence; first, if it is proved that the defendant either intended to cause distress; or, secondly, if the defendant was motivated by sexual gratification and was reckless in causing distress. My amendment adds a third option. The defence will be made out if the defendant was
“reckless as to whether B will be caused alarm, distress or humiliation”
and that the victim was so harmed. This third option will cover a wider range of cases, meaning that there would be more opportunities for prosecuting this harmful practice and therefore affording greater protection for women and girls.
Recklessness means showing that a defendant was aware of a risk of causing harm but went on to take that risk anyway. There are two arms to the recklessness amendment. First, a defendant is reckless as to causing distress, alarm or humiliation and, secondly, the victim is alarmed, humiliated, et cetera. The first arm, the recklessness, is easier to prove than direct intention. The perpetrator can intend to have a laugh with his friends or send an image for a dare but is reckless as to causing distress. That means that he recognised there was a risk of causing distress but carried on anyway. In many situations, recklessness may be relatively easy to prove, as you would say that, of course, most people would know that sending images of this kind would be likely to cause distress and so on, unless you knew that the recipient would be receptive to it because you checked before sending. I am not going to talk any more about consent-based matters. I am done there. I have made my point. What many men do not get, though, is that girls—particularly girls—and women do not want to receive these images. This is why I have been arguing for a you-know-what consent-based law. The second arm states that the victim is alarmed, humiliated, et cetera. This means that the victim would need to make a statement to that effect. It is included here and in the Northern Ireland draft to raise that threshold just a little. It should not be too high a threshold to meet.
The recklessness amendment is a good compromise, especially when faith in the criminal justice system is at an all-time low among women. Otherwise, women will report cyberflashing and find that they fail at the first hurdle because of the need to prove that the person who sent the image intended to cause direct harm.
In my meeting with the Minister, he gave an example of why a consent-based offence would not work. He used an image of a complainant having to give evidence in a court. That went a long way to swinging it for me but I have taken advice on this and, as I now understand it, the complainant would need only to give a statement, which would of course be crucial to any prosecution. This means that the prosecution would not go ahead unless the complainant supported it, which is fair enough; I had visions of a victim trembling in the dock when facing her abuser. I would be most grateful if the Minister could clarify this because, as I understand it, the court issue made the difference between having a consent-based offence and the Government’s proposal. It has been known on rare occasion for me to get muddled up but I would appreciate clarification on which version is correct.
I appreciate that the Minister and the Law Commission have not had time to consider this recklessness amendment fully so I certainly do not intend to press it to a vote today. The best outcome would be the Government and the Law Commission looking at this and the Government bringing forward their own amendment before Third Reading. I am ever hopeful and thank noble Lords for their patience.
My Lords, Amendments 3 to 5 to Clause 164 are in my name. They relate to a matter that I raised in Committee: threats of a more indirect nature. As I explained at that time, I chaired an inquiry in Scotland into misogyny and the manifestations of deeply unpleasant behaviour that women experience, some of it in the public arena and some of it online.
Based on that experience, I came to realise that many women who are parliamentarians, are in local authorities, head up NGOs or are journalists and, for some reason, annoy or irritate certain users of social media in any way receive horrible threats. We know about those from the ugly nature of the threats that Diane Abbott and many women parliamentarians have received. Sometimes, the person making the threat does not directly say, “I’m going to rape you”—although sometimes they do: Joanna Cherry, a Scottish Member of Parliament here in Westminster, received a direct threat of rape and the person who threatened was convicted under the Communications Act. Very often, threats of rape, death or disfigurement sound like, “You think you’re so pretty. We can fix that. Somebody should fix that”. It is the indirect nature of the threat that provides comfort to the person making it. They imagine that they cannot be prosecuted because they are not saying that they will do it; they are saying, “Somebody should rape you. Somebody should just eliminate you. Somebody should take that smile off your face; a bit of acid could do it”. That is how many of the threats presented by witnesses to the inquiry—we saw them on their phones and computers—were made; they were of an indirect nature.
One woman in my own chambers is acting for Jimmy Lai, the Hong Kong publisher who is currently in custody awaiting trial under the national security law. She has received death threats, threats against her children and threats of rape. I do not imagine that we can inhibit what is done by people under the auspices of the Chinese Government with this legislation; all I can say is that these sorts of threats are experienced by many women and are not always of a direct nature so the law often does not encapsulate them. I am seeking to introduce some way in which we could, through careful drafting, cover the possibilities.
Take someone such as Andrew Tate: he is a good example of someone with a massive following who clearly puts out to boys and young men horrible ideas about how women should be treated, much of which involve detriments to women. As has been described by others in this House, a pile-on happens in relation to this. Women do not just receive a message saying, “Somebody should rape you”; they receive thousands of messages from the followers of the contributor and communicator.
I have had the benefit of meeting the ministerial team. I am grateful to the Minister and his team, including the lawyers who advise him. We sought a way of dealing with this issue. I particularly wanted to include specific mention of “rape, disfigurement or other” in terms of threats because, in the language of statutes, they are sometimes missed by young junior prosecutors or young policemen. When they see messaging and women come forward with complaints, they do not automatically think that the threat is covered because of the rather oblique nature of statutory language. I wanted it really spelled out, with rape and disfigurement specifically included in my amendment. However, I am persuaded that this issue was in the minds of those who drafted this Bill.
I am pleased that it has been recognised that this specific issue is of a different nature when it is applied to women and girls. It is happening in schools and universities. Young women put their heads above the parapet—they express a view about feminism or describe the fact that they are a lesbian—then, suddenly, they receive a whole range of horrible insults, abuse and threats on social media. I am mindful of the contribution made by the noble Baroness, Lady Fox, in Committee. She was concerned, in essence, about people being rather wet about this and how this measure would inhibit free speech; really, it was about protecting rather gentle feelings. However, that is not what this is about. It is about threats of serious behaviour and serious conduct towards women. The indirect nature of it is not something that should put us off attempting to have law to deal with it.
As I said, I have had an opportunity to meet the ministerial team. We came to the conclusion that we might be able to insert something covering the fact that the carrying out of the threat could be done by persons other than the person who is sending the message. That is the important thing: women receiving these messages saying, “Somebody should rape you”, know that the message is carefully drafted in that way by the Andrew Tates of this world because they imagine that the police cannot then do anything about it, but they also know that these people have followers who may well decide to carry out the suggestion. It is really important that we find a way to deal with this.
As a result of our discussions, I hope that the House will see that this issue is something that we must deal with in this Bill because the opportunity will not come again. This is happening day in, day out to girls and women. If we are going to send a message about what is unacceptable, it is important that the law declares what is unacceptable. These threats are serious, as is the way in which women then have to change their lives. They stop staying out late. They worry about being in places where they might be subjected to some of these threats. They start limiting their behaviour.
Just earlier this morning, someone told me that his niece was a member of a football team’s fan club and had been elected to the board. She suddenly received a whole range of threats from men who felt that no woman should be in that position. She received a pile-on of a horrible kind, and said to her uncle that she wanted to step down and did not want to be on the board if she was going to receive that kind of messaging.
Women start changing the opportunities in their lives and stop doing things that they might want to do: they stop deciding to be Members of Parliament or to stand for election in any capacity, or, if they are lawyers, to take cases that will be inflammatory. They start inhibiting and limiting their own potential because of this kind of threat coming from men who resent the idea that women should be aspiring to hold positions and be equal to men. Some of it is of a very unpleasant and nasty nature, and law has its place in sending out clear messages of what is acceptable and unacceptable. It is then up to us—in schools, other educational settings and everywhere else—to spread the word among our young men and young women about what is acceptable and what they must not accept, and about the right way to behave decently towards other human beings.
My Lords, first, I welcome the amendment from the noble Lord, Lord Allan, and his motivation, because I am concerned that, throughout the Bill, the wrong targets are being caught up. I was grateful to hear his recognition that people who talk about their problems with self-harm could end up being targeted, which nobody would ever intend. These things need to be taken seriously.
In that sense, I was slightly concerned about the motivation of the noble Baroness, Lady Burt of Solihull, in the “reckless” amendment. The argument was that the recklessness standard is easier to prove. I am always worried about things that make it easier to prosecute someone, rather than there being a just reason for that prosecution. As we know, those involved in sending these images are often immature and very foolish young men. I am concerned about lowering the threshold at which we criminalise them—potentially destroying their lives, by the way, because if you have a criminal record it is not good—even though I in no way tolerate what they are doing and it is obviously important that we take that on.
There is a danger that this law will become a mechanism through which people try to resolve a whole range of social problems—which brings me on to responding to the speech just made by the noble Baroness, Lady Kennedy of The Shaws. I continue to be concerned about the question of trying to criminalise indirect threats. The point about somebody who sends a direct threat is that we can at least see the connection between that direct threat and the possibility of action. It is the same sort of thing that we have historically considered in relation to incitement. I understand that, where your physical being is threatened by words, physically a practical thing can happen, and that is to be taken very seriously. The problem I have is with the indirect threat from somebody who says, for example, “That smile should be taken of your face. It can be arranged”, or other indirect but incredibly unpleasant comments. There is clearly no link between that and a specific action. It might use violent language but it is indirect: “It could be arranged”, or “I wish it would happen”.
Anyone on social media—I am sure your Lordships all are—will know that I follow very carefully what people from different political parties say about each other. I do not know if you have ever followed the kind of things that are said about the Government and their Ministers, but the threats are not indirect and are often named. In that instance, it is nothing to do with women, but it is pretty violent and vile. By the way, I have also followed what is said about the Opposition Benches, and that can be pretty violent and vile, including language that implies that they wish those people were the subject of quite intense violence—without going into detail. That happens, and I do not approve of it—obviously. I also do not think that pile-ons are pleasant to be on the receiving end of, and I understand how they happen. However, if we criminalise pile-ons on social media, we are openly imposing censorship.
What is worse in my mind is that we are allowing the conflation of words and actions, where what people say or think is the same as acting on it, as the criminal law would see it. We have seen a very dangerous trend recently, which is particularly popular in the endless arguments and disputes over identity politics, where people will say that speech is violence. This has happened to a number of gender-critical feminists, in this instance women, who have gone in good faith to speak at universities, having been invited. They have been told that their speech was indistinguishable from violence and that it made students at the university feel under threat and unsafe and that it was the equivalent of being attacked. But guess what? Once you remove that distinction, the response to that speech can be to use violence, because you cannot tell the difference between them. That has happened around a number of university actions, where speakers and their supporters were physically assaulted by people who said that they were using self-defence against speech that was violent. I get nervous that this is a slippery slope, and we certainly should not go anywhere near it in legislation.
Finally, I agree that we should tackle the culture of people piling on and using this kind of language, but it is a cultural and social question. What we require is moral leadership and courage in the face of it—calling it out, arguing against it and so on. It is wrong to use the law to send messages; it is an abdication of moral leadership and a cop-out, let alone dangerous in what is criminalised. I urge your Lordships to reject those amendments.
My Lords, I will speak briefly to Amendments 5C and 7A in this group. I welcome the Government’s moves to criminalise cyberflashing. It is something that many have campaigned for in both Houses and outside for many years. I will not repeat the issues so nobly introduced by the noble Baroness, Lady Burt, and I say yet again that I suspect that the noble Baroness, Lady Featherstone, is watching, frustrated that she is still not able to take part in these proceedings.
It is worth making the point that, if actions are deemed to be serious enough to require criminalisation and for people potentially to be prosecuted for them, I very much hope that my noble friend the Minister will be able to say in his remarks that this whole area of the law will be kept under review. There is no doubt that women and girls’ faith in the criminal justice system, both law enforcement and the Crown Prosecution Service, is already very low. If we trumpet the fact that this offence has been introduced, and then there are no prosecutions because the hurdles have not been reached, that is even worse than not introducing the offence in the first place. So I hope very much that this will be kept under review, and no doubt there will be opportunities to return to it in the future.
I do not want to get into the broader debate that we have just heard, because we could be here for a very long time, but I would just say to the noble Baronesses, Lady Kennedy and Lady Fox, that we will debate this in future days on Report and there will be specific protection and mention of women and girls on the face of the Bill—assuming, of course, that Amendment 152 is approved by this House. The guidance might not use the words that have been talked about, but the point is that that is the place to have the debate—led by the regulator with appropriate public consultation—about the gendered nature of abuse that the noble Baroness, Lady Kennedy, has so eloquently set out. I hope that will also be a big step forward in these matters.
I look forward to hearing from the Minister about how this area of law will be kept under review.
My Lords, I understand that, as this is a new stage of the Bill, I have to declare my interests: I am the chair of 5Rights Foundation, a charity that works around technology and children; I am a fellow at the computer science department at Oxford University; I run the Digital Futures Commission, in conjunction with the 5Rights Foundation and the London School of Economics; I am a commissioner on the Broadband Commission; I am an adviser for the AI ethics institute; and I am involved in Born in Bradford and the Lancet commission, and I work with a broad number of civil society organisations.
My comments will be rather shorter. I want to make a detailed comment about Amendment 5B, which I strongly support and which is in the name of the noble Lord, Lord Allan. It refers to,
“a genuine medical, scientific or educational purpose, … the purposes of peer support”
I would urge him to put “genuine peer support”. That is very important because there is a lot of dog whistling that goes on in this area. So if the noble Lord—
My working assumption would be that that would be contestable. If somebody claimed the peer support defence and it was not genuine, that would lead to them becoming liable. So I entirely agree with the noble Baroness. It is a very helpful suggestion.
I also want to support the noble Baroness, Lady Kennedy. The level of abuse to women online and the gendered nature of it has been minimised; the perpetrators have clearly felt immune to the consequences of law enforcement. What worries me a little in this discussion is the idea or conflation that anything said to a woman is an act of violence. I believe that the noble Baroness was being very specific about the sorts of language that could be caught under her suggestions. I understand from what she said that she has been having conversations with the Minister. I very much hope that something is done in this area, and that it is explored more fully, as the noble Baroness, Lady Morgan, said, in the guidance. However, I just want to make the point that online abuse is also gamified: people make arrangements to abuse people in groups in particular ways that are not direct. If they threaten violence, that is quite different to a pile-in saying that you are a marvellous human being.
My Lords, I too must declare my interests on the register—I think that is the quickest way of doing it to save time. We still have time, and I very much hope that the Minister will listen to this debate and consider it. Although we are considering clauses that, by and large, come at the end of the Bill, there is still time procedurally—if the Minister so decides—to come forward with an amendment later on Report or at Third Reading.
We have heard some very convincing arguments today. My noble friend explained that the Minister did not like the DPP solution. I have looked back again at the Law Commission report, and I cannot for the life of me see the distinction between what was proposed for the offence in its report and what is proposed by the Government. There is a cigarette paper, if we are still allowed to use that analogy, between them, but the DPP is recommended—perhaps not on a personal basis, although I do not know quite what distinction is made there by the Law Commission, but certainly the Minister clearly did not like that. My noble friend has come back with some specifics, and I very much hope that the Minister will put on the record that, in those circumstances, there would not be a prosecution. As we heard in Committee, 130 different organisations had strong concerns, and I hope that the Minister will respond to those concerns.
As regards my other noble friend’s amendment, again creatively she has come back with a proposal for including reckless behaviour. The big problem here is that many people believe that, unless you include “reckless” or “consent”, the “for a laugh” defence operates. As the Minister knows, quite expert advice has been had on this subject. I hope the Minister continues his discussions. I very much support my noble friend in this respect. I hope he will respond to her in respect of timing and monitoring—the noble Baroness, Lady Morgan, mentioned the need for the issue to be kept under review—even if at the end of the day he does not respond positively with an amendment.
Everybody believes that we need a change of culture—even the noble Baroness, Lady Fox, clearly recognises that—but the big difference is whether or not we believe that these particular amendments should be made. We very much welcome what the Law Commission proposed and what the Government have put into effect, but the question at the end of day is whether we truly are making illegal online what is illegal offline. That has always been the Government’s test. We must be mindful of that in trying to equate online behaviour with offline behaviour. I do not believe that we are there yet, however much moral leadership we are exhorted to display. I very much take the point of the noble Baroness, Lady Morgan, about the violence against women and girls amendment that the Government are coming forward with. I hope that will have a cultural change impact as well.
As regards the amendments of the noble Baroness, Lady Kennedy, I very much take the point she made, both at Committee and on Report. She was very specific, as the noble Baroness, Lady Kidron, said, and was very clear about the impact, which as men we severely underestimate if we do not listen to what she said. I was slightly surprised that the noble Baroness, Lady Fox, really underestimates the impact of that kind of abuse—particularly that kind of indirect abuse.
I was interested in what the Minister had to say in Committee:
“In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007”.—[Official Report, 22/6/23; col. 424.]
Is that still the Government's position? Has that been explained to the noble Baroness, Lady Kennedy, who I would have thought was pretty expert in the 2007 Act? If she does not agree with the Minister, that is a matter of some concern.
Finally, I agree that we need to consider the points raised at the outset by the noble and learned Lord, Lord Garnier, and I very much hope that the Government will keep that under review.
My Lords, this has been an interesting debate that in a curious way moves us from the debate on the first group, which was about the high level of aspiration for this Bill, for the work of those involved in it and indeed for Parliament as a whole, down to some of the nitty-gritty points that emerge from some of the Bill’s proposals. I am very much looking forward to the Minister’s response.
In a sense, where the noble Lord, Lord Clement-Jones, ends, I want to start. The noble and learned Lord, Lord Garnier, did a good job of introducing the points made previously by his colleague, the noble Baroness, Lady Buscombe, in relation to those unfortunate exercises of public comment on businesses, and indeed individuals, that have no reason to receive them. There does not seem to be a satisfactory sanction for that. In a sense he was drawn by the overarching nature of Clause 1, but I think we have established between us that Clause 1 does not have legal effect in the way that he would like, so we would probably need to move further forward. The Government probably need to pick up his points in relation to some of the issues that are raised further down, because they are in fact not dissimilar and could be dealt with.
The key issue is the one that my noble friend Lady Kennedy ended on, in the sense that the law online and the law offline, as mentioned by the noble Lord, Lord Clement-Jones, seem to be at variance about what you can and cannot do in relation to threats issued, whether or not they are general, to a group or groups in society. This is a complex area that needs further thought of the nature that has been suggested, and may well refer back to the points made by the noble Baroness, Lady Morgan. There is something here that we are not tackling correctly. I look forward to the Government’s response. We would support movement in that area should that agreement be made.
Unfortunately, the noble Lord, Lord Russell, whom I am tempted to call my noble friend because he is a friend, has just moved out of his seat—I do not need to give him a namecheck any more—but he and I went to a meeting yesterday, I think, although I have lost track of time. It was called by Luke Pollard MP and related to the incel movement or, as the meeting concluded, what we should call the alleged incel movement, because by giving it a name we somehow give it a position. I wanted to make that point because a lot of what we are talking about here is in the same territory. It was an informal research-focused meeting to hear all the latest research being done on the group of activities going under the name of the alleged incel movement.
I mention that because it plays into a lot of the discussion here. The way in which those who organise it do so—the name Andrew Tate has already been mentioned—was drawn into the debate in a much broader context by that research, particularly because representatives from the Home Office made the interesting point that the process by which the young men who are involved in this type of activity are groomed to join groups and are told that by doing so they are establishing a position that has been denied to them by society in general, and allegedly by women in particular, is very similar to the methods used by those who are cultivating terrorism activity. That may seem to be a big stretch but it was convincing, and the argument and debate around that certainly said to me that there are things operating within the world of social media, with its ability to reach out to those who often feel alone, even if they are not, and who feel ignored, and to reach them in a way that causes them to overreact in the way they deal with the issues they face.
That point was picked up by others, including my noble friend Lady Kennedy and the noble Baroness, Lady Burt, in relation to the way in which the internet itself is in some way gendered against women. I do not in any sense want to apportion blame anywhere for that; it is a much more complex issue than single words can possibly address, but it needs to be addressed. As was said in the meeting and has been said today, there are cultural, educational and holistic aspects here. We really do not tackle the symptoms or the effects of it, but we should also look at what causes people to act in the way they have because of, or through the agency of, the internet.
Having said that, I support the amendments from the noble Lord, Lord Allan, and I look forward to the Government’s response to them. Amendment 5B raises the issue that it will be detrimental to society if people stop posting and commenting on things because they fear that they will be prosecuted—or not even prosecuted but attacked. The messages that they want to share will be lost as a result, and that is a danger that we do not want to encourage. It will be interesting to hear the Minister’s response to that.
The noble Baroness, Lady Burt, made powerful points about the way in which the offence of cyberflashing is going to be dealt with, and the differences between that and the intimate image abuse that we are coming on to in the next group. It may well be that this is the right way forward, and indeed we support the Government in the way that they are going, but it is important to recognise her point that we need a test of whether it is working. The Government may well review the impact of the Bill in the normal way of things, but this aspect needs particular attention; we need to know whether there are prosecutions and convictions and whether people understand the implication of the change in practice. We need publicity, as has been said, otherwise it will not be effective in any case. These issues, mentioned by the noble Baroness, Lady Burt, and picked up by the noble Baroness, Lady Morgan, are important. We will have other opportunities to discuss them, but at this stage we should at least get a response to that.
If it is true that in Northern Ireland there is now a different standard for the way in which cyberflashing offences are to be undertaken—taking into account the points made very well by the noble Baroness, Lady Fox, and the worry about encouraging more offences for which crimes may not necessarily be appropriate at this stage, particularly the one about recklessness—do the Government not have a slight problem here? In the first case, do we really accept that we want differences between the various regions and nations of our country in these important issues? We support devolution but we also need to have a sense of what the United Kingdom as a whole stands for in its relationship with these types of criminal offence, if they are criminal. If that happens, do we need a better understanding of why one part of the country has moved in a particular way, and is that something that we are missing in picking up action that is perhaps necessary in other areas? As my noble friend Lady Kennedy has also said, some of the work she has been doing in Scotland is ahead of the work that we have been doing in this part of the United Kingdom, and we need to pick up the lessons from that as well.
As I said at the beginning, this is an interesting range of amendments. They are not as similar as the grouping might suggest, but they point in a direction that needs government attention, and I very much look forward to the Minister’s comments on them.
I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.
I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.
I reassure my noble friends that, as we have discussed, the Digital Markets, Competition and Consumers Bill will address these issues by including a power to take stronger action against fake and misleading reviews. Schedule 18 to that Bill sets out a power for the Secretary of State to that effect. While that Bill does not place duties on private individuals acting in a personal capacity, the proposals are likely to require traders hosting reviews to take reasonable and proportionate steps to ensure that they represent a genuine consumer experience.
The Government will also consult on what is reasonable and proportionate for businesses to do to ensure that reviews are genuine and do not unduly harm businesses or the people who own them. My noble friends’ Amendment 5A would represent a significant expansion of the communications offences in the Bill. It would criminalise a wide range of conduct other than sending messages. Criminalising conduct which is merely capable of encouraging someone else to send a message would represent a significant risk to freedom of expression and is beyond the scope of the offence we have drafted. While I remain sympathetic to my noble friends about the malignant behaviour they have highlighted and the impact on the people who own the businesses affected, I continue to agree to disagree with my noble and learned friend Lord Garnier about whether this is a matter for this Bill. I continue to point him and my noble friends in the direction of the Digital Markets, Competition and Consumers Bill, which my noble friend Lord Camrose will take through; he has heard the points my noble friends have raised today and in earlier stages of the Online Safety Bill.
Amendment 3, tabled by the noble Baroness, Lady Kennedy of The Shaws, seeks to amend the definition of the offence in Clause 164(1) to add the threats of “rape” and “disfigurement” to the existing description, which includes “a threat of death”. Her Amendment 5 is consequential. I am very grateful to the noble Baroness for her time yesterday to discuss her amendments. The Government agree that threats of rape and disfigurement are truly abhorrent—she set out some harrowing examples—and should be captured in criminal law, which is why the offence, as drafted, already covers these threats. Rape is included in the definition of “serious harm”. As I discussed with the noble Baroness yesterday, disfigurement would also be captured under the definition of “serious harm”, as it would constitute grievous bodily harm.
I know that the noble Baroness has come across some very distressing examples of threats to disfigure in her work on tackling misogyny, including the review she mentioned that she chaired for the Scottish Government, but if disfigurement were specified separately in this offence, it could introduce ambiguity about the ambit of serious harm. Grievous bodily harm is an established and well-understood legal concept; singling out disfigurement could lead to uncertainty in the law about other harms which amount to grievous bodily harm.
The noble Baroness’s Amendment 4 seeks to clarify that a person who sends a threatening message would meet the threshold of this offence, even if the threat were carried out by “another individual”. The offence, as drafted, does not require the threat to be carried out by a particular person, but following the helpful discussions with the noble Baroness yesterday, I am happy to acknowledge the need for greater clarity here. While her amendment would make it clearer that the offence will capture scenarios where the recipient feared that the threat would be carried out by the sender or a different individual, it could restrict this to specific or identifiable individuals. This would apply only where there was an intention, and not where a sender is reckless as to causing the recipient to fear the threat being carried out. As the noble Baroness knows, while we cannot accept the amendment as she has drafted it, we are happy to commit to bringing forward a government amendment at Third Reading to clarify that the offence is committed whether or not the threat would be carried out by the person who sent the message. I am very grateful to her for pressing this issue.
Amendment 5B, tabled by the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, seeks to ensure that the new serious self-harm offence does not lead to the prosecution of people sharing content to support people at risk of self-harm. I fully understand the concern which has prompted their amendment, and I reassure them that the offence has been developed with the aim of ensuring that it does not criminalise the sorts of people that they mentioned. The Law Commission addressed this issue and was confident that the inclusion of the two key elements it recommended—an intention to encourage or assist another person to harm themselves, and a threshold of harm consistent with grievous bodily harm—will constrain the offence to only the most culpable offending.
We expect these tight parameters and the usual prosecutorial discretion to provide sufficient safeguards against inappropriate prosecutions. The defence of necessity may also serve to ensure that actions undertaken in extraordinary circumstances to mitigate more serious harm should not be criminal. The offence of encouraging or assisting suicide has not led to the prosecution of vulnerable people who talk about suicidal feelings online or those who offer them support, and there is no reason to suppose that this offence will criminalise those whom this amendment seeks to protect. However, the noble Lords raise an important issue and I assure them that we will keep the operation of the offence under review. The Government have committed to expanding it to cover all ways of encouraging or assisting self-harm so there will be an opportunity to revisit it in due course.
I am very happy to make that commitment. It would be useful to have their continued engagement, as we have had throughout the drafting of the Bill.
The noble Baroness, Lady Burt of Solihull, has tabled a number of amendments related to the new offence of cyberflashing. I will start with her Amendment 6. We believe that this amendment reduces the threshold of the new offence to too great an extent. It could, for example, criminalise a person sending a picture of naked performance art to a group of people, where one person might be alarmed by the image but the sender sends it anyway because he or she believes that it would be well received. That may be incorrect, unwise and insensitive, but we do not think it should carry the risk of being convicted of a serious sexual offence.
Crucially, the noble Baroness’s amendment requires that the harm against the victim be proven in court. Not only does this add an extra step for the prosecution to prove in order for the perpetrator to be convicted, it creates an undue burden on the victim, who would be cross-examined about his or her—usually her—experience of harm. For example, she might have to explain why she felt humiliated; this in itself could be retraumatising and humiliating for the victim. By contrast, Clause 170 as drafted means that the prosecution has only to prove and focus on the perpetrator’s intent.
I am very grateful for the Minister’s comments. This is the crux of my confusion: I am not entirely sure why it is necessary for the victim to appear in court. In intimate image abuse, is it not the case that the victim does not have to make an appearance in court? What is the difference between intimate image abuse and cyberflashing abuse? I do not get why one attracts a physical court appearance and the other does not. They seem to be different sides of the same coin to me.
If a defendant said that he—usually he—had sent an image believing that the consent of the recipient was implied, the person making the complaint would be cross-examined on whether or not she had indeed given that consent. If an offence predicated on proof of non-consent or proof of harm were made out, the victim could be called to give evidence and be cross-examined in court. The defence would be likely to lead evidence challenging the victim’s characteristics and credibility. We do not want that to be a concern for victims; we do not want that to be a barrier to victims coming forward and reporting abuse for fear of having their sexual history or intentions cross-examined.
It is—and I shall explain more in that group why we take that approach. But the offence of cyberflashing matches the existing offence of flashing, which is not a consent-based offence. If somebody flashes at someone in public, it does not matter whether the person who sees that flashing has consented to it—it is the intent of the flasher that is the focus of the court. That is why the Law Commission and we have brought the cyberflashing offence forward in the same way, whereas the sharing of intimate images without somebody’s consent relies on the consent to sharing. But I shall say a bit more when we get to that group, if the noble Lord will allow.
I am sure that the noble and learned Lord, Lord Garnier, is going to come in, and he knows a great deal more about this than I do. But we are getting into the territory where we talk about whether or not somebody needs to appear in court in order to show consent. That was all that I was trying to point out, in a way—that, if the Minister accepted the amendment on behalf of my noble friend, and then the complainant had to appear in court, why is that not the case with intimate abuse?
If the defendant said that they had sent an image because they thought that consent had been obtained, the person whose consent was under question would find themselves cross-examined on it in a way that we do not want to see. We do not want that to be a barrier to people reporting this, in the same way that it is not for people who report flashing on the streets.
My Lords, I do not want to interfere in private grief, but the courts have powers to protect witnesses, particularly in cases where they are vulnerable or will suffer acute distress, by placing screens in the way and controlling the sorts of cross-examinations that go on. I accept the concern expressed by the noble Baroness, Lady Burt, but I think that my noble friend the Minister will be advised that there are protective measures in place already for the courts to look after people of the sort that she is worried about.
There are indeed but, as my noble and learned friend’s interjection makes clear, those are still means for people to be cross-examined and give their account in court, even with those mitigations and protections. That is really the crux of the issue here.
We have already debated the risk that the approach that the noble Baroness sets out in her Amendments 5C and 7A criminalises sending messages, and people whom we would not deem to be criminal. I want to reassure her and your Lordships’ House that the intent-based offence, as drafted at Clause 170, provides the comprehensive protections for victims that we all want to see, including situations where the perpetrator claims it was “just for a joke”. The offence is committed if a perpetrator intended to cause humiliation, and that captures many supposed “joke” motives, as the perverted form of humour in this instance is often derived from the victim’s humiliation, alarm or distress.
Indeed, it was following consultation with victims’ groups and others that the Law Commission added humiliation as a form of intent to the offence to address those very concerns. Any assertions made by a defendant in this regard would not be taken at face value but would be considered and tested by the police and courts in the usual way, alongside the evidence. The Crown Prosecution Service and others are practised in prosecuting intent, and juries and magistrates may infer intention from the context of the behaviour and its foreseeable consequences.
The addition of defences, as the noble Baroness suggests in her Amendment 7A, is unfortunately still not sufficient to ensure that we are not overcriminalising here. Even with the proposed defences, sending a picture of genitalia without consent for medical reasons would still risk being considered a criminal Act and potentially compel a medical professional to justify that he or she has an adequate defence.
It is about the burden on the medical professionals and the question of whether it comes to court when the police investigate it and the prosecution make out. We do not want to see that sort of behaviour being overly criminalised or the risk of prosecution hanging over people for reasons where it is not needed. We want to make sure that the offence is focused on the behaviour that we all want to tackle here.
The Law Commission has looked at this extensively—and I am glad the noble Baroness has had the opportunity to speak to it directly—and brought forward these proposals, which mirror the offence of flashing that already exists in criminal law. We think that is the right way of doing it and not risking the overcriminalisation of those whom noble Lords would not want to capture.
Contrary to some concerns that have been expressed, the onus is never on the victim to marshal evidence or prove the intent of the perpetrator. It is for the police and the Crown Prosecution Service when investigating the alleged offence or prosecuting the case in court. That is why we and the Law Commission consulted the police and the CPS extensively in bringing the offence forward.
By contrast, as I say, the consent-based approach is more likely to put onerous pressure on the victim by focusing the case on his or her behaviour and sexual history instead of the behaviour of the perpetrator. I know and can tell from the interjections that noble Lords still have some concerns or questions about this offence as drafted. I reassure them, as my noble friend Lady Morgan of Cotes urged, that we will be actively monitoring and reviewing the implementation of this offence, along with the Crown Prosecution Service and the police, to ensure that it is working effectively and bringing perpetrators to justice.
The noble Baroness, Lady Burt, also raised the importance of public engagement and education in this regard. As she may know, the Government have a long-term campaign to tackle violence against women and girls. The Enough campaign covers a range of online and offline forms of abuse, including cyberflashing. The campaign includes engaging with the public to deepen understanding of this offence. It focuses on educating young people about healthy relationships, on targeting perpetrators and on ensuring that victims of violence against women and girls can access support. Future phases of the Enough campaign will continue to highlight the abusive nature and unacceptability of these behaviours, and methods for people safely to challenge them.
In addition, in our tackling violence against women and girls strategy the Government have committed to invest £3 million better to understand what works to prevent violence against women and girls, to invest in high-quality, evidence-informed prevention projects, including in schools, aiming to educate and inform children and young people about violence against women and girls, healthy relationships and the consequences of abuse.
With that commitment to keep this under review—to ensure that it is working in the way that the Law Commission and the Government hope and expect it to—and with that explanation of the way we will be encouraging the public to know about the protections that are there through the law and more broadly, I hope noble Lords will be reassured and will not press their amendments.
Before the Minister sits down, I express my gratitude that he has indicated that my amendment would have some serious impact. I thank the noble Lord, Lord Clement-Jones, for saying that there should be some learning among men in the House and in wider society about what puts real fear in the hearts of women and how it affects how women conduct their lives. I thank those who said that some change is necessary.
We have to remember that this clause covers a threatening communications offence. I know that something is going to be said about the particular vulnerability of women and girls—the noble Baroness, Lady Morgan, mentioned it, and I am grateful for that—but this offence is not specific to one gender. It is a general offence that someone commits if a message they send conveys a threat of death or serious harm.
I reassure the noble Baroness, Lady Fox, that we are not talking about a slight—saying to a woman that she is ugly or something. This is not about insults but about serious threats. The business about it being reckless as to whether or not it is going to be carried out is vital. Clause 164(1)(c)(i) says an offence is committed if it is intended that an individual encountering the message would fear that the threat would be carried out. I would like to see added the words, “whether or not by the person sending the message”.
Just think of this in the Irish context of years gone by. If someone sent a message saying, “You should be kneecapped”, it is very clear that we would be talking about something that would put someone in terror and fear. It is a serious fear, so I am glad that this is supported by the Minister, and I hope we will progress it to the next stage.
My Lords, I will be incredibly brief because everything that needs to be said has been said at least twice. I am grateful to those who have taken the trouble to listen to what I had to say, and I am grateful to the Minister for his response. I beg leave to withdraw my amendment.
Amendment 2A withdrawn.
Amendment 2B not moved.
Clause 164: Threatening communications offence
Amendments 3 to 5 not moved.
Clause 165: Interpretation of sections 162 to 164
Amendment 5A not moved.
Clause 167: Offence of encouraging or assisting serious self-harm
Amendment 5B not moved.
Clause 170: Sending etc photograph or film of genitals
Amendments 5C and 6 not moved.
7: Clause 170, page 149, line 25, after “made” insert “or altered”
Member’s explanatory statement
This amendment provides that “photograph” and “film” in the new offence of sending a photograph or film of genitals (and, by extension the new offences of sharing an intimate photograph or film) includes an image which has been altered and which appears to be a photograph or film.
My Lords, I am grateful for the opportunity to continue some of the themes we touched on in the last group and the debate we have had throughout the passage of the Bill on the importance of tackling intimate image abuse. I shall introduce the government amendments in this group that will make a real difference to victims of this abhorrent behaviour.
Before starting, I take the opportunity again to thank the Law Commission for the work it has done in its review of the criminal law relating to the non-consensual taking, making and sharing of intimate images. I also thank my right honourable friend Dame Maria Miller, who has long campaigned for and championed the victims of online abuse. Her sterling efforts have contributed greatly to the Government’s approach and to the formulation of policy in this sensitive area, as well as to the reform of criminal law.
As we announced last November, we intend to bring forward a more expansive package of measures based on the Law Commission’s recommendations as soon as parliamentary time allows, but the Government agree with the need to take swift action. That is why we are bringing forward these amendments now, to deliver on the recommendations which fall within the scope of the Bill, thereby ensuring justice for victims sooner.
These amendments repeal the offence of disclosing private sexual photographs and films with intent to cause distress and replace it with four new sexual offences in the Sexual Offences Act 2003. The first is a base offence of sharing an intimate photograph or film without consent or reasonable belief in consent. This recognises that the sharing of such images, whatever the intent of the perpetrator, should be considered a criminal violation of the victim’s bodily autonomy.
The amendments create two more serious offences of sharing an intimate photograph or film without consent with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification. Offenders committing the latter offence may also be subject to notification requirements, commonly referred to as being on the sex-offenders register. The amendments create an offence of threatening to share an intimate image. These new sharing offences are based on the Law Commission’s recommended approach to the idea of intimate photographs or films to include images which show or appear to show a person nude or partially nude, or which depict sexual or toileting activity. This will protect more victims than the current Section 33 offence, which protects only images of a private and sexual nature.
Finally, these clauses will, for the first time, make it a criminal offence to share a manufactured or so-called deepfake image of another person without his or her consent. This form of intimate image abuse is becoming more prevalent, and we want to send a clear message that it will not be tolerated.
By virtue of placing these offences in the Sexual Offences Act 2003, we are extending to these offences also the current special measures, so that victims can benefit from them in court, and from anonymity provisions, which are so important when something so intimate has been shared without consent. This is only the first stage in our reform of the law in this area. We are committed to introducing additional changes, giving effect to further recommendations of the Law Commission’s report which are beyond the scope of the Bill, when parliamentary time allows.
I hope that noble Lords from across your Lordships’ House will agree that these amendments represent an important step forward in tackling intimate image abuse and protecting victims. I commend them to the House, and I beg to move.
My Lords, I welcome these new offences. From my professional experience, I know that what came to be known as “sextortion” created some of the most distressing cases you could experience, where an individual would obtain intimate images, often by deception, and then use them to make threats. This is where a social network is particularly challenging; it enables people to access a network of all the family and friends of an individual whose photo they now hold and to threaten to distribute it to their nearest and dearest. This affects men and women; many of the victims were men who were honey-potted into sharing intimate images and in the worst cases it led to suicide. It was not uncommon that people would feel that there was no way out; the threat was so severe that they would take their own lives. It is extremely welcome that we are doing something about it, and making it more obvious to anyone who is thinking about committing this kind of offence that they run the risk of criminal prosecution.
I have a few specific questions. The first is on the definitions in proposed new Section 66D, inserted by government Amendment 8, where the Government are trying to define what “intimate” or “nudity” represents. This takes me back again to my professional experience of going through slide decks and trying to decide what was on the right or wrong side of a nudity policy line. I will not go into the detail of everything it said, not least because I keep noticing younger people in the audience here, but I will leave you with the thought that you ended up looking at images that involved typically fishnets, in the case of women, and socks, in the case of men—I will leave the rest to your Lordships’ imaginations to determine at what point someone has gone from being clothed to nude. I can see in this amendment that the courts are going to have to deal with the same issues.
The serious point is that, where there is alignment between platform policies, definitions and what we do not want to be distributed, that is extremely helpful, because it then means that if someone does try to put an intimate image out across one of the major platforms, the platform does not have to ask whether there was consent. They can just say that it is in breach of their policy and take it down. It actually has quite a beneficial effect on slowing transmission.
The other point that comes out of that is that some of these questions of intimacy are quite culturally subjective. In some cultures, even a swimsuit photo could be used to cause humiliation and distress. I know this is extremely difficult; we do not want to be overly censorious but, at the same time, we do not want to leave people exposed to threats, and if you come from a culture where a swimsuit photo would be a threat, the definitions may not work for you. So I hope that, as we go through this, there will be a continued dialogue between experts in the platforms who have to deal with these questions and people working on the criminal offence side. To the extent that we can achieve it, there should be alignment and the message should go out that if you are thinking of distributing an image like this, you run the risk of being censored by the platforms but also of running into a criminal prosecution. That is on the mechanics of making it work.
I have two questions on the specifics of implementation. I am sure the Minister is going to confirm this, but will our definitions of photographs and films stretch to novel settings such as virtual reality? This is where somebody takes an image of an individual and creates a virtual reality avatar. Our expectation is that that is still within the definition of a photograph and will not escape the threat of prosecution. I hope he can confirm that.
Secondly, on the cross-jurisdictional questions that regularly come up, from experience, many of these sextortion cases occur cross-border. There are rings in particular countries that are well known, and law enforcement will be able to share information on those. It is well known where these rings are. If this offence is going to be effective, we have to make sure there is that cross-border co-operation between law enforcement agencies in each country. Otherwise, the problem we have today, which is that people feel they can do this with impunity, continues. If there is that cross-border co-operation, some of the regimes within which some of the perpetrators live will not treat them as nicely as we would if those convictions happen. Having created this offence, let us make sure it is effective, whether or not the perpetrator is in the United Kingdom. I hope that on those points the Minister can give some additional assurances.
I also welcome these amendments and want to pay tribute to Maria Miller in the other place for her work on this issue. It has been extraordinary. I too was going to raise the issue of the definition of “photograph”, so perhaps the Minister could say or, even better, put it in the Bill. It does extend to those other contexts.
My main point is about children. We do not want to criminalise children, but this is pervasive among under-18s. I do want to make the distinction between those under-18s who intentionally harm another under-18 and have to be responsible for what they have done in the meaning of the law as the Minister set it out, and those who are under the incredible pressure—I do not mean coercion, because that is another out-clause—of oversharing that is inherent in the design of many of these services. That is an issue I am sure we are going to come back to later today. I would love to hear the Minister say something about the Government’s intention from the Dispatch Box: that it is preventive first and there is a balance between education and punishment for under-18s who find themselves unavoidably in this situation.
Very briefly, before I speak to these amendments, I want to welcome them. Having spoken to and introduced some of the threats of sharing intimate images under the Domestic Abuse Act 2021, I think it is really welcome that everything has been brought together in one place. Again, I pay tribute to the work of Dame Maria Miller and many others outside who have raised these as issues. I also want to pay tribute to the Ministry of Justice Minister Edward Argar, who has also worked with my noble friend the Minister on this.
I have one specific question. The Minister did mention this in his remarks, but could he be absolutely clear that these amendments do not mention specifically the lifetime anonymity of claimants and the special measures in relation to giving evidence that apply to witnesses. That came up in the last group of amendments as well. Because they are not actually in this drafting, it would be helpful if he could put on record the relationship with the provisions in the Sexual Offences Act 2003. I know that would be appreciated by campaigners.
My Lords, I have very little to add to the wise words that we have heard from my noble friend and from the noble Baronesses, Lady Kidron and Lady Morgan. We should thank all those who have got us to this place, including the Law Commission. It was a separate report. In that context, I would be very interested to hear a little more from the Minister about the programme of further offences that he mentioned. The communication offences that we have talked about so far are either the intimate images offences, which there was a separate report on, or other communications offences, which are also being dealt with as part of the Bill. I am not clear what other offences are in the programme.
Finally, the Minister himself raised the question of deepfakes. I have rustled through the amendments to see exactly how they are caught. The question asked by the noble Baroness, Lady Kidron, is more or less the same but put a different way. How are these deepfakes caught in the wording that is now being included in the Bill? This is becoming a big issue and we must be absolutely certain that it is captured.
My Lords, I am grateful to the Minister for introducing this suite of government amendments. From these Benches we welcome them. From the nature of the debate, this seems to be very much a work in progress. I wish the Minister well as he and the Justice Minister continue to pick their way through a route to get us to where we need to be. I too thank the Law Commission, Dame Maria Miller MP and so many other campaigners who, as noble Lords have said, have got us to this important point.
However, as I am sure is recognised, with the best of intentions, the government amendments still leave some areas that are as yet unresolved, particularly on sharing images with others: matters such as revenge porn and sending unwanted pictures on dating apps. There are areas still to be explored. The Minister and the Justice Minister said in a letter that, when parliamentary time allows, there will be a broader package of offences being brought forward. I realise that the Minister cannot be precise, but I would appreciate some sense of urgency or otherwise in terms of parliamentary time and when that might be.
We are only just starting to understand the impact of, for example, artificial intelligence, which we are about to come on to. That will be relevant in this regard too. We all understand that this is a bit of a moveable feast. The test will be whether this works. Can the Minister say a bit more about how this suite of measures will be kept under review and, in so doing, will the Government be looking at keeping an eye on the number of charges that are brought? How will this be reported to the House?
In line with this, will there be some consideration of the points that were raised in the previous group? I refer particularly to the issues raised in the amendments tabled by the noble Baroness, Lady Burt, especially where there may not be the intent, or the means, to obtain sexual gratification. They might be about “having a bit of a laugh”, as the noble Baroness said—which might be funny to some but really not funny to others.
In welcoming this, I hope that the Minister will indicate that this is just one step along the way and when we will see further steps.
I am happy to respond clearly to that. As my right honourable friend Edward Argar MP and I said in our letter, this is just the first step towards implementing the changes which the Law Commission has recommended and which we agree are needed. We will implement a broader package of offences, covering, for instance, the taking of intimate images without consent, which were also part of the Law Commission’s report. The parameters of this Bill limit what we can do now. As I said in my opening remarks, we want to bring those forward now so that we can provide protections for victims in all the ways that the Bill gives us scope to do. We will bring forward further provisions when parliamentary time allows. The noble Baroness will understand that I cannot pre-empt when that is, although if we make good progress on the Bill, parliamentary time may allow for it sooner.
The noble Baroness also asked about our review. We will certainly take into account the number of prosecutions and charges that are brought. That is always part of our consideration of criminal law, but I am happy to reassure her that this will be the case here. These are new offences, and we want to make sure that they are leading to prosecutions to deter people from doing it.
The noble Lord, Lord Allan of Hallam, asked whether images will include those shared on virtual reality platforms and in other novel ways. As he knows, the Bill is written in a technologically neutral way to try to be future-proof and capture those technologies which have not yet been invented. I mentioned deepfakes in my opening remarks, which we can envisage. An image will be included on whatever platform it is shared, if it appears to be a photograph or film—that is to say, if it is photo-real. I hope that reassures him.
In the amendments, if I can, I will. In the meantime, I reassure my noble friend Lady Morgan of Cotes that, as I said in opening, placing these offences in the Sexual Offences Act means that we are also extending the current special measures provisions to these offences, as we heard in our debate on the last group, so that victims can benefit from those in court. The same applies to anonymity provisions, which are so important when something so intimate has been shared without someone’s consent.
I promised in the previous group to outline the difference in the consent basis between this offence and the cyberflashing offence. Both are abhorrent behaviours which need to be addressed in criminal law. Although the levels of harm and distress may be the same in each case, the Law Commission recommended different approaches to take into account the different actions of the perpetrator in each offence. Sharing an intimate image of somebody without their consent is, in and of itself, wrongful, and a violation of their bodily privacy and sexual autonomy. Sending a genital image without the consent of the recipient is not, in and of itself, wrongful; for instance, the example I gave in the previous debate about an artistic performance, or a photograph which depicts a naked protester. If that was sent without the consent of the recipient, it is not always or necessarily harmful. This is an issue which the Law Commission looked at in some detail.
The criminal law must take the culpability of the perpetrator into account. I reassure noble Lords that both we and the Law Commission have looked at these offences considerably, working with the police and prosecutors in doing so. We are confident that the Bill provides the comprehensive protection for victims that we all want to see, including in situations where a perpetrator may claim that it was just a joke.
The terms “photograph” and “film” are defined in proposed new Section 66D(5). That refers to the definition in new Section 66A, which refers to an image which is made or altered in any way
“which appears to be a photograph or film”.
That is where the point I make about photo-reality is captured.
The noble Baroness, Lady Kidron, is right to highlight that this is a matter not just for the criminal law. As we discussed on the previous group, it is also a matter for public education, so that young people and users of any age are aware of the legal boundaries and legal issues at stake here. That is why we have the public education campaigns to which I alluded in the previous group.
Amendment 7 agreed.
Amendment 7A not moved.
8: After Clause 170, insert the following new Clause—
“Sharing or threatening to share intimate photograph or film
In the Sexual Offences Act 2003, after section 66A (inserted by section 170), insert—“66B Sharing or threatening to share intimate photograph or film(1) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) B does not consent to the sharing of the photograph or film, and(c) A does not reasonably believe that B consents.(2) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state,(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the sharing of the photograph or film.(3) A person (A) commits an offence if—(a) A intentionally shares a photograph or film which shows, or appears to show, another person (B) in an intimate state, (b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the sharing of the photograph or film, and(d) A does not reasonably believe that B consents.(4) A person (A) commits an offence if—(a) A threatens to share a photograph or film which shows, or appears to show, another person (B) in an intimate state, and(b) A does so—(i) with the intention that B or another person who knows B will fear that the threat will be carried out, or(ii) being reckless as to whether B or another person who knows B will fear that the threat will be carried out.(5) Subsections (1) to (4) are subject to section 66C (exemptions).(6) For the purposes of subsections (1) to (3) and section 66C(3)(b)—(a) “consent” to the sharing of a photograph or film includes general consent covering the particular act of sharing as well as specific consent to the particular act of sharing, and(b) whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents.(7) Where a person is charged with an offence under subsection (4), it is not necessary for the prosecution to prove—(a) that the photograph or film mentioned in the threat exists, or(b) if it does exist, that it is in fact a photograph or film which shows or appears to show a person in an intimate state.(8) It is a defence for a person charged with an offence under subsection (1) to prove that the person had a reasonable excuse for sharing the photograph or film.(9) A person who commits an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine (or both).(10) A person who commits an offence under subsection (2), (3) or (4) is liable—(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.(11) In subsection (9) “the maximum term for summary offences” means—(a) if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;(b) if the offence is committed after that time, 51 weeks.(12) If on the trial of a person charged with an offence under subsection (2) or (3) a magistrates’ court or jury finds the person not guilty of the offence charged, the magistrates’ court or jury may find the person guilty of an offence under subsection (1).(13) The Crown Court has the same powers and duties in relation to a person who is by virtue of subsection (12) convicted before it of an offence under subsection (1) as a magistrates’ court would have on convicting the person of the offence. 66C Sharing or threatening to share intimate photograph or film: exemptions(1) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film was taken in a place to which the public or a section of the public had or were permitted to have access (whether on payment or otherwise),(b) B had no reasonable expectation of privacy from the photograph or film being taken, and(c) B was, or A reasonably believes that B was, in the intimate state voluntarily.(2) For the purposes of subsection (1)(b), whether a person had a reasonable expectation of privacy from a photograph or film being taken is to be determined by reference to the circumstances that the person sharing the photograph or film reasonably believes to have existed at the time the photograph or film was taken.(3) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1), (2) or (3) if—(a) the photograph or film had, or A reasonably believes that the photograph or film had, been previously publicly shared, and(b) B had, or A reasonably believes that B had, consented to the previous sharing.(4) A person (A) who shares a photograph or film which shows, or appears to show, another person (B) in an intimate state does not commit an offence under section 66B(1) if—(a) B is a person under 16,(b) B lacks, or A reasonably believes that B lacks, capacity to consent to the sharing of the photograph or film, and(c) the photograph or film is shared—(i) with a healthcare professional acting in that capacity, or(ii) otherwise in connection with the care or treatment of B by a healthcare professional.(5) A person who shares a photograph or film which shows, or appears to show, a child in an intimate state does not commit an offence under section 66B(1) if the photograph or film is of a kind ordinarily shared between family and friends.(6) A person who threatens to share a photograph or film which shows, or appears to show, another person in an intimate state does not commit an offence under section 66B(4) if, by reason of this section, the person would not commit an offence under section 66B(1), (2) or (3) by sharing the photograph or film in the circumstances conveyed by the threat.66D Sharing or threatening to share intimate photograph or film: interpretation(1) This section applies for the purposes of sections 66B and 66C.(2) A person “shares” something if the person, by any means, gives or shows it to another person or makes it available to another person.(3) But a provider of an internet service by means of which a photograph or film is shared is not to be regarded as a person who shares it.(4) “Photograph” and “film” have the same meaning as in section 66A (see subsections (3) to (5) of that section). (5) Except where a photograph or film falls within subsection (8), a photograph or film “shows, or appears to show, another person in an intimate state” if it shows or appears to show—(a) the person participating or engaging in an act which a reasonable person would consider to be a sexual act,(b) the person doing a thing which a reasonable person would consider to be sexual,(c) all or part of the person’s exposed genitals, buttocks or breasts,(d) the person in an act of urination or defecation, or(e) the person carrying out an act of personal care associated with the person’s urination, defecation or genital or anal discharge.(6) For the purposes of subsection (5)(c) the reference to all or part of a person’s “exposed” genitals, buttocks or breasts includes—(a) a reference to all or part of the person’s genitals, buttocks or breasts visible through wet or otherwise transparent clothing,(b) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are covered only with underwear, and(c) the case where all or part of the person’s genitals, buttocks or breasts would be exposed but for the fact that they are obscured, provided that the area obscured is similar to or smaller than an area that would typically be covered by underwear worn to cover a person’s genitals, buttocks or breasts (as the case may be).(7) In subsection (6)(c) “obscured” means obscured by any means, other than by clothing that a person is wearing, including, in particular, by an object, by part of a person’s body or by digital alteration.(8) A photograph or film falls within this subsection if (so far as it shows or appears to show a person in an intimate state) it shows or appears to show something, other than breastfeeding, that is of a kind ordinarily seen in public.(9) For the purposes of subsection (8) “breastfeeding” includes the rearranging of clothing in the course of preparing to breastfeed or having just finished breastfeeding.””Member’s explanatory statement
This amendment provides for new offences of sharing or threatening to share intimate photographs or films.
Amendment 8 agreed.
9: After Clause 171, insert the following new Clause—
“Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)
Sections 33 to 35 of the Criminal Justice and Courts Act 2015 (disclosing or threatening to disclose private sexual photographs and films with intent to cause distress) are repealed.”Member’s explanatory statement
This amendment is consequential on the new Clause creating offences of sharing or threatening to share intimate photographs or films.
Amendment 9 agreed.
Clause 172: Consequential amendments
Amendments 10 and 11
10: Clause 172, page 150, line 15, leave out “section 170” and insert “sections 170 and (Sharing or threatening to share intimate photograph or film)”
Member’s explanatory statement
This amendment provides that Part 3 of Schedule 14 also makes consequential amendments on the new Clause creating offences of sharing and threatening to share intimate photographs or films.
11: Clause 172, page 150, line 15, at end insert—
“(4) Part 4 of Schedule 14 contains amendments consequential on section (Repeals in connection with offences under section (Sharing or threatening to share intimate photograph or film)).”Member’s explanatory statement
This amendment introduces a new Part of Schedule 14 which makes consequential amendments on the new Clause in my name repealing sections 33 to 35 of the Criminal Justice and Courts Act 2015.
Amendments 10 and 11 agreed.
Schedule 14: Amendments consequential on offences in Part 10 of this Act
Amendments 12 to 26
12: Schedule 14, page 240, line 24, after first “the” insert “first”
Member’s explanatory statement
This is a technical amendment ensuring that the amendments made under Schedule 14 to Schedule 1 to the Children and Young Persons Act 1933 are inserted in the correct place in that Act.
13: Schedule 14, page 240, line 25, after “66A” insert “, 66B”
Member’s explanatory statement
This amendment adds a reference to the new offences of sharing and threatening to share an intimate photograph or film to Schedule 1 to the Children and Young Persons Act 1933 (offences to which certain provisions of that Act apply).
14: Schedule 14, page 240, line 25, at end insert—
“13A_ In section 65A of the Police and Criminal Evidence Act 1984 (“qualifying offences” for the purposes of Part 5 of that Act), in subsection (2)(p) after “61 to” insert “66A, 66B(2) and (3),”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 65A(2) of the Police and Criminal Evidence Act 1984 (meaning of “qualifying offence” for the purposes of Part 5 of that Act).
15: Schedule 14, page 240, line 25, at end insert—
“13A_ In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), after subsection (2A) insert—“(2B) For the purposes of this Act, where it is alleged or there is an accusation that an offence under section 66B(4) of the Sexual Offences Act 2003 (threatening to share intimate photograph or film) has been committed, the person against whom the offence is alleged to have been committed is to be regarded as— (a) the person to whom the threat mentioned in that subsection is alleged to have been made, and(b) (if different) the person shown, or who appears to be shown, in an intimate state in the photograph or film that is the subject of the threat.””Member’s explanatory statement
This amendment has the effect of applying the provisions of the Sexual Offences (Amendment) Act 1992 to the person shown or who appears to be shown in an intimate photograph or film where a threat to share the photograph or film is made to a person other than that person.
16: Schedule 14, page 240, line 27, at end insert—
“(1A) In section 78 (meaning of “sexual”), after “15A” insert “, 66B to 66D ”.”Member’s explanatory statement
This amendment provides that the existing definition of “sexual” in section 78 of the Sexual Offences Act 2003 does not apply to the new offences of sharing and threatening to share an intimate photograph or film (on account of a separate definition applying to those offences).
17: Schedule 14, page 240, line 29, after “66A” insert “, 66B(2) and (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 136A(3A) of the Sexual Offences Act 2003 (offences specified as child sex offences for the purposes of Part 2A of that Act when committed against a person under 18).
18: Schedule 14, page 241, line 4, at end insert—
“33B_ An offence under section 66B(3) of this Act (sharing intimate photograph or film for purpose of obtaining sexual gratification) if—(a) where the offender was under 18, the offender is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months;(b) in any other case—(i) the victim was under 18, or(ii) the offender, in respect of the offence or finding, is or has been—(a) sentenced to a term of imprisonment,(b) detained in a hospital, or(c) made the subject of a community sentence of at least 12 months.””Member’s explanatory statement
This amendment adds a reference to the new offence of sharing an intimate photograph or film for the purpose of obtaining sexual gratification to Schedule 3 to the Sexual Offences Act 2003 (offences to which certain provisions of that Act apply).
19: Schedule 14, page 241, line 10, at end insert—
“149B_ An offence under section 66B(2) or (3) of that Act (sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification).””Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Schedule 15 to the Criminal Justice Act 2003 (specified sexual offences for the purposes of section 325 of that Act).
20: Schedule 14, page 241, line 12, after “66A” insert “, 66B(2) or (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Schedule 34A to the Criminal Justice Act 2003 (child sex offences for the purposes of section 327A of that Act).
21: Schedule 14, page 241, line 12, at end insert “, and
(b) after “exposure” insert “, sending etc photograph or film of genitals, sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification”.”Member’s explanatory statement
This amendment is consequential on the other amendment to Schedule 34A to the Criminal Justice Act 2003 made in my name.
22: Schedule 14, page 241, line 17, after “66A” insert “, 66B(2) and (3)”
Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 (conduct constituting offence amounting to “child sexual exploitation” when committed against a person under 18 for the purposes of that section).
23: Schedule 14, page 241, line 17, at end insert “, and
(b) after “exposure” insert “, sending etc photograph or film of genitals, sharing intimate photograph or film with intent to cause alarm, distress or humiliation or for purpose of obtaining sexual gratification”.”Member’s explanatory statement
This amendment is consequential on the other amendment to section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 made in my name.
24: Schedule 14, page 241, line 22, at end insert—
“section 66B(2) (sharing intimate photograph or film with intent to cause alarm, distress or humiliation)section 66B(3) (sharing intimate photograph or film for purpose of obtaining sexual gratification)”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to paragraph 33 of Schedule 4 to the Modern Slavery Act 2015 (offences to which the defence in section 45 does not apply).
25: Schedule 14, page 241, line 27, at end insert—
“(axb) section 66B(2) (sharing intimate photograph or film with intent to cause alarm, distress or humiliation);(axc) section 66B(3) (sharing intimate photograph or film for purpose of obtaining sexual gratification);”.”Member’s explanatory statement
This amendment adds a reference to certain of the new offences of sharing an intimate photograph or film to Part 2 of Schedule 18 to the Sentencing Act 2020 (specified sexual offences for the purposes of section 306 of that Act).
26: Schedule 14, page 241, line 32, at end insert—
“PART 4AMENDMENTS CONSEQUENTIAL ON SECTION (REPEALS IN CONNECTION WITH OFFENCES UNDER SECTION (SHARING OR THREATENING TO SHARE INTIMATE PHOTOGRAPH OR FILM))Criminal Justice and Courts Act 2015
20_(1) The Criminal Justice and Courts Act 2015 is amended as follows.(2) In section 96 (extent), in subsection (6), omit paragraphs (c) and (g).(3) Omit Schedule 8 (disclosing or threatening to disclose private sexual photographs or films: providers of information society services).Domestic Abuse Act 2021
21_(1) The Domestic Abuse Act 2021 is amended as follows. (2) Omit section 69 (threats to disclose private sexual photographs and films with intent to cause distress) and the italic heading before it.(3) In section 85 (power to make consequential provision), in subsection (1)(b), omit “69,”.(4) In section 86 (power to make transitional or saving provision), in subsection (1)(b), omit “69,”.Overseas Operations (Service Personnel and Veterans) Act 2021
22_ In Part 1 of Schedule 1 to the Overseas Operations (Service Personnel and Veterans) Act 2021 (“excluded offences” for the purposes of section 6 of that Act), omit paragraph 11.Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021 (S.I. 2021/835)
23_ In the Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021, omit regulation 8 (amendment of the Criminal Justice and Courts Act 2015).”Member’s explanatory statement
This amendment inserts a new Part into Schedule 14 consequential on the new Clause in my name repealing sections 33 to 35 of the Criminal Justice and Courts Act 2015.
Amendments 12 to 26 agreed.
Consideration on Report adjourned until not before 2.48 pm.