Data (Use and Access) Bill [HL]

Baroness Kidron Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I too will speak to Motions 32A and 52A. Just to follow on from the noble Baroness, Lady Ludford, I really appreciated that the Minister understood the concerns of those who moved these amendments. But, as the noble Baroness pointed out, reassurances have been given in this House, over many debates, that there was nothing to worry about in terms of confusion in relation to sex and gender. We have now ascertained via the Supreme Court that we needed some clarity and we have now got it. I do not want us to make the same mistake again.

I ask the Minister to clarify one thing he said in his opening remarks: that it would be overreach to ask the Secretary of State to declare biological sex as a material reality in all instances. I think that is what he said. I point out that biological sex is a material reality in all instances. Despite the comments of the noble Viscount, Lord Hailsham, in relation to his friend, it is not, to clarify, about passing or appearances; it is about biological material reality. In that instance, the Minister called on us to have kindness. Of course, we should all have kindness all the time, in every instance. However, nobody here is trying to be unkind; the intent is to clarify. I liked something the Minister said in the past when he stated that

“we must have a single version of the truth on this. There needs to be a way to verify it consistently and there need to be rules”.—[Official Report, 21/1/25; col. 1620.]

I agree. It is not about kindness or unkindness; it is about clarification.

In addition to what has already been argued, this surely has to be about trust. I can tell the House that quite a lot of people I have spoken to are rather distrustful of digital ID of any sort. They are already cynical and anxious about what is going on with this data collection. I do not raise that point other than to say that the one thing you would want in order to counter such worries is that this particular measure should be trustworthy. Yet, to quote an article by Joan Smith in UnHerd, we are talking about “an officially sanctioned app” that will allow the falsification of sex, even if that is not its intent.

It would be a form of self-ID that appears to be endorsed by a government TrustMark based on documents that could be based on gender identity rather than sex. A government TrustMark ought to be trustworthy. It is supposed to guarantee that the data it contains is accurate, and that includes sex.

Something important happened with the Supreme Court’s clarification, but, of course, this is an ongoing discussion of the implications it has on a wide range of public policy. I understand that, but I fear that there are times when people suggest we should leave the Supreme Court to some kind of relativistic mishmash. People keep saying to me, “What’s your reading of it?” It is not about a reading; it is a clarification of the law. If this Bill inadvertently adds to that relativised muddle or is used as an excuse to dismiss the Supreme Court, that would be an unintended consequence of what the Government are doing. It could be simply sorted out by the Government themselves.

[Baroness Kidron (CB)]

My Lords, I want briefly to add my voice to that of my noble friend Lord Colville, to say that in Committee I asked a number of times whether the science of conditioning—that is, the science of persuasive design that would extend the use of children—could be considered science under the current definition, and I never got an answer. So, although I am very sympathetic to the idea that science must be possible, whatever we do with the Bill, I would like to ensure that it is not, as the noble Viscount says, an excuse for any kind of commercial activity that could be perpetrated on the user.

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[Viscount Camrose (Con)]

My Lords, I thank the Minister for setting out the Government’s case so clearly. I will speak to my Amendment 46A, which seeks to improve the report that the Government brought forward in the other place. This issue is causing real concern for copyright owners and so many others in the creative industries. Let us remind ourselves that the creative industries contributed £124 billion in gross value added to the UK economy in 2023 and outperformed the UK economy between 2010 and 2023 in terms of growth. The Government are, wisely and rightly, prioritising growth over other concerns, and the creative industries will have to be an essential part of this—but only to the extent that they have a trusted and efficient marketplace for intellectual property.

Our amendment would improve the Government’s proposed report by adding consideration of extra territorial use of creators’ copyright works by operators of web crawlers and AI systems, as well as consideration of establishing a digital watermark for the purposes of identifying licensed content. I very much take on board the Minister’s point that this must be international to work, but few countries, if any, would have better or greater convening power to initiate the process of creating such digital standards. I urge the Government to pursue that avenue.

I pay tribute to all noble Lords who have raised the issue of copyright during the passage of this Bill. I am sure that I will be joining many others in thanking the noble Baroness, Lady Kidron, who has led such a powerful and successful campaign on this issue. Throughout the passage of the Bill, we have recognised the serious concerns raised by the creative sector and, on Report, we tabled an amendment seeking to create a digital watermark to identify this content and to protect copyright owners. I am very pleased that the Government have taken the first step by amending the Bill in the other place to put a report in it. That being said, the report needs to go further. If the Government are unwilling to accept our changes, I will test the opinion of the House when my amendment is called.

I turn briefly to Motion 49A, I the name of the noble Baroness, Lady Kidron. I once again pay tribute to the work that she has done to make progress on this. While we had concerns about the drafting of her amendment on Report, I am very pleased that she has tabled her Amendment 49B today. With the additional parts of it targeted at supporting small businesses and micro-entities, we are delighted to support it. It is increasingly clear that the Government must do the right thing for our creative industries, and we are delighted to offer our support to Motoin 49A. I intend to test the opinion of the House on Amendment 46A when it is called.

[Baroness Kidron (CB)]

My Lords, I will speak to my Motion 49A and offer my support to Amendment 46A in the name of the noble Viscount, Lord Camrose. It is a sensible amendment and I hope that the Government find a way to accept it without challenge.

I start by rebutting three assertions that have been circling over the past few weeks. First, I reject the notion that those of us who have raised our voices against government plans are against technology. I quote the Secretary of State, Peter Kyle, who I am delighted to see is below Bar this afternoon. He said to the FT that:

“Just as in every other time there is change in society, there will be some people who will either resist change or try to make change too difficult to deliver”.


Well, creative people are early adopters of technology. Their minds are curious and their practices innovative. In my former career as a film director, I watched the UK film industry transform from working on celluloid to being a world-leading centre of digital production. For the past five years at Oxford’s Institute for Ethics in AI, where I am an advisor, I have been delighted to watch the leaps and bounds of AI development. Those at the frontier of AI development are creative thinkers, and creative people are natural innovators. The Government’s attempt to divide us is wrong.

The transformational impact of technology is something that all the signatories of this weekend’s letter to the Prime Minister understand. Creators do not deny the creative and economic value of AI, but we do deny the assertion that we should have to build AI for free with our work and then rent it back from those who stole it. Ours is not an argument about progress but about value. The AI companies fiercely defend their own IP but deny the value of our work. Not everything new is progress, not everything that already exists is without value, but we, the creative industries, embody both change and tradition, and we reject the assertion that we are standing in the way of change. We are merely asserting our right to continue to exist and play our part in the UK’s future growth.

Secondly, there is no confusion about copyright law in relation to AI, nor does the phenomenal number of submissions to the consultation prove anything other than the widespread outrage of the creative industries that the Government sought to redefine theft rather than uphold their property rights. In our last debate, my noble and learned friend Lady Butler-Sloss made an unequivocal statement to that effect which has been widely supported by other legal opinion. The Government’s spokesman, who has greeted every press inquiry of the last few weeks by saying that the Government are consulting to sort out the confusion in copyright in relation to AI is, at best, misinformed. Let me be clear: the amendment would not change copyright. We do not need to change copyright law. We need transparency so that we can enforce copyright law, because what you cannot see you cannot enforce.

Thirdly, I rebut the idea that this is the wrong Bill and the wrong time. AI did not exist in the public realm until the early 2020s. The speed and scale at which copyright works are being stolen is eye-watering. Property that people have invested in, have created, have traded and that they rely on for their livelihood is being stolen at all parts of the value chain. It is an assault on the British economy, happening at scale to a sector worth £120 billion to the UK, an industry that is central to the industrial strategy and of enormous cultural import. It is happening now, and we have not even begun to catch up with the devastating consequences. The Government have taken our amendments out of the Bill and replaced them with a couple of toothless reports. Whatever these reports bring forward and whatever the consultation offers, we need the amendment in front of us today now. If this Bill does not protect copyright then, by the time that the Government work out their policy, there will be little to save.

The language of AI—scraping, training, data modules, LLMs—does not evoke the full picture of what is being done. AI corporations, many of which are seeking to entrench their existing information monopolies, are not stealing nameless data. They are stealing some of the UK’s most valuable cultural and economic assets—Harry Potter, the entire back catalogue of every music publisher in the UK, the voice of Hugh Grant, the design of an iconic handbag and the IP of our universities, great museums and library collections. Even the news is stolen in real time, all without payment, with economic benefits being taken offshore. It costs UK corporations and individuals their hard-earned wealth and the Treasury much needed revenue. It also denudes the opportunities of the next generation because, whether you are a corporation or an individual, if work is stolen at every turn, you cannot survive. The time is now, and this Bill is the vehicle.

Motion 49A replaces the previous package of Lords amendments. I pay tribute to the noble Lord, Lord Stevenson, who wishes he could be with us; the noble Lord, Lord Clement-Jones, and his colleagues, who have been uncompromising in their support; and my noble friend Lord Freyberg, who were all co-sponsors of the original amendment.

Amendment 49B would simply provide that a copyright holder be able to see who took their work, what was taken, when and why, allowing them a reasonable route to assert their moral right to determine whether they wish to have their work used, and if so, on what terms. It is a slimmer version of the previous package of amendments, but it covers the same ground and, importantly, it puts a timeline of 12 months on bringing forward these provisions and makes specific provision for SMEs and micro-entities and for UK-headquartered AI companies.

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Moved by

[Baroness Kidron]

49A: At end insert “, and do propose Amendment 49B instead of the words so left out of the Bill—

49B: Before Clause 138, insert the following new Clause—
“Requirement to make provision in relation to transparency of business data used in relation to AI models
(1) The Secretary of State or the Treasury must by regulations make provision as set out in this section in relation to a trader which operates a service which—
(a) includes the making available of an artificial intelligence (AI) model, and
(b) has links with the United Kingdom within the meaning of subsection (2), and in relation to a data holder for the business data of such a trader.
(2) The service has links with the United Kingdom if—
(a) it has a significant number of United Kingdom users, or
(b) United Kingdom users form one of the target markets for the service (or the only target market).
(3) A “data holder” for the business data of such a trader means—
(a) the trader, or
(b) a person who, in the course of a business, processes that data.
(4) The regulations must require specified business data to be published by the trader or the data holder so as to provide copyright owners with information regarding the text and data used in the pre-training, training, fine-tuning and retrieval-augmented generation in the AI model, or any other data input to the AI model.
(5) The regulations must require the business data to be published by the trader or the data holder in such form, at such intervals and in such manner as the regulations may prescribe, in particular so as to ensure that it is accessible to copyright owners upon request.
(6) The regulations must require the trader or the data holder, when publishing the business data as required under subsections (4) and (5), to provide an effective mechanism to allow copyright owners to identify all individual works that they own that are used in the pre-training, training, fine-tuning and retrieval-augmented generation in the AI model, or any other data input to the AI model.
(7) The regulations may provide that the regulations apply in modified form in order that they apply proportionately to small companies and micro-entities within the meaning of the Companies Act 2006, or apply differently to UK-registered companies within the meaning of the Companies Act 2006 as opposed to companies which are not UK-registered.
(8) The regulations must require the trader, if bots are used in the making available of its AI model, to disclose information regarding the identity of such bots used by them or by third parties on their behalf, including but not limited to—
(a) the name of the bot,
(b) the legal entity responsible for the bot, and
(c) the specific purposes for which each bot is used.
(9) In this section “bot” means an autonomous software application that can interact with systems or users (including crawlers and fetchers) and which obtains data from websites in accordance with instructions.
(10) The regulations must make provision for enforcement of the regulations made under this section in accordance with sections 8 (enforcement of regulations under this Part), 9 (restrictions on powers of investigation etc) and 10 (financial penalties) of this Act as if this section were in Part 1 of this Act.
(11) The Secretary of State or the Treasury must lay before Parliament a draft of the statutory instrument containing regulations under this section within 12 months of the day on which this Act is passed and the regulations are subject to the affirmative procedure.””

[Baroness Kidron (CB)]

My Lords, I thank everyone for their fantastic contributions from all sides of the House. I say simply to the Government: I understand that they are trying to collect evidence, but the evidence is in front of their eyes that the wholesale stealing of UK copyright has gone on, is going on and will go on until we take action. I am afraid that a task force, a consultation, a review and listening is not adequate to the moment.

I will just push back on one thing: the Government did pick a side. They have forgotten that they had a preferred option for many months until this House spoke. So I ask all noble Lords, please, on whatever side of the House they sit, to show the creative industries that this House has their back. I wish to divide the House.

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[Baroness Chakrabarti (Lab)]

My Lords, I will speak primarily to pay tribute to the noble Baroness, Lady Owen of Alderley Edge. We need to be crystal clear that we would not be here and we would not have come as far as we have—notwithstanding residual concerns—but for her work. Her entry into your Lordships’ House was greeted by the most shocking barrage of misogynistic innuendo and abuse, including from a septuagenarian, privileged veteran of progressive journalism who really ought to have known better. It was pretty ghastly to watch.

However, it has been a joy of equal measure to witness the noble Baroness’s response to her critics, and this has been the best kind of response. With her campaign—backed by supporters across the House, including the noble Lord, Lord Clement-Jones, and supporters in civil society and the academy—she has made, in less than two years, a greater contribution to the most vital part of the legislative work of this House than many make in decades. Perhaps the young have something to teach their elders, after all, particularly about the new and all-too-lawless continent of the internet, which we have been discussing for some time today.

After nearly 30 years at the interface between criminal policy and the ECHR, I share the analysis of the harm caused by this 21st-century cybersex offence that has been offered by the noble Baroness, Lady Owen, and the noble Lord, Lord Pannick. By contrast, I fear that Whitehall has displayed a breathtaking lack of empathy for the mostly women and girl victims of this conduct—a lack of empathy that, at times, verges on the obtuse. That has gone on for some years, as the noble Baroness indicated. It accounts for the time taken by the Government to agree to the offence being imprisonable, but I am glad that we finally got there.

Now, at the 11th hour, I too fear the sheer breadth of the Government’s reasonable excuse defence, which might drive a coach and horses through the protection. This kind of degrading conduct is no light-hearted matter. The creation of deepfake intimate image without a person’s consent is capable of destroying their dignity, mental health and life. More broadly, it is capable of changing the whole flavour of our society: in the classroom, in the workplace and wherever men and women rub along together. That is what is at stake.

“Reasonable excuse” defences are appropriate and necessary in the context of broad, strict liability offences capable of catching otherwise innocent behaviour. The classic example is the strict liability offence of being in possession of a blade in a public place. Without that “reasonable excuse” defence, any of us could be criminalised on the way back from the kitchen department at John Lewis, so there is an obvious reason for a reasonable excuse defence to that strict liability offence.

I put it to the House that we would not dream of a “reasonable excuse” defence for sexual assault. The offence requires intention, action and the sexualised aspect. Once these are established, there simply is no reasonable excuse. I believe that the creation of a deepfake intimate image is equivalent to sexual assault if it is without consent. I learn that the Government are concerned about freedom of expression in the context of creating deepfake intimate images without someone’s consent. Let us please remember that freedom of expression is not an absolute; it must be balanced with proportionate interference to protect the rights of others, hence laws against breach of copyright, child pornography and so on all over the world, including in the United States—famously, the land of the First Amendment.

I really must press my noble friend the Minister to explain in some detail—more than we have heard so far—why the tighter “reasonable excuse” defences from the noble Baroness, Lady Owen, of red teaming and political satire do not do the trick? In other words, what are these other reasonable excuses for pernicious conduct of this kind? Why should there be any reasonable excuse for the solicitation offence? Where is the freedom of expression in soliciting that someone else creates the deepfake image?

I noticed the introduction of the concern about covert policing—I think my noble friend the Minister raised it—but surely he recalls the covert human intelligence Act, a very controversial Act of 2020 that I am still very concerned about, which allows the authorities to grant advanced immunity to people committing criminal conduct in the course of their covert surveillance. I am a bit concerned about that suddenly popping up as a reasonable excuse of government at the 11th hour on this offence.

Without further specifics, I am really concerned about the impression that the Government just do not get it, that they do not totally understand what is being perpetrated online and that they are not properly taking the protection of women and girls sufficiently seriously. I would really regret that. This is the coalface of human rights at this moment in the 21st century. I really hope there is still time for the Government to listen further to the compelling arguments of the noble Baroness, Lady Owen, and think again.

[Baroness Kidron (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has said everything I was going to say and more and better, so I want just to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, and to say that I too have witnessed her forensic fight over the last few months. I hugely admire her for it, and I congratulate her on getting this far. I absolutely share all the concerns that both noble Baronesses have expressed. Just in case I do not have the opportunity again, I congratulate the noble Baroness on her extraordinary work and campaigning.

[Lord Clement-Jones (LD)]

My Lords, it is a pleasure to follow the three noble Baronesses, and I too congratulate the noble Baroness, Lady Owen, on her magnificent and successful campaign to outlaw the making and requesting of non-consensual images, first with her Private Member’s Bill and then with amendments to this Bill. She has fought it with huge skill and determination, and, rightly, she has pushed it to the wire in wanting the most robust offence and tightest defences possible. I thank the Minister for his flexibility that he has shown so far—with the emphasis on “so far”.

The amendments that the noble Baroness has put forward represent a compromise, given the strong and rather extraordinary opinion of the Attorney-General that the defence of “reasonable excuse” is needed for the defence to be compliant with the ECHR and that, therefore, the whole Bill risks being non-compliant if that is not contained in the defence for these offences. That is the equivalent of a legal brick wall, despite an excellent opinion from Professor Clare McGlynn, which in my view demolished the Attorney-General’s case, which seems to be based on ensuring the ability of big tech companies to red team their models on images used without consent. That is a rather peculiar basis. Why cannot the big tech companies use images with consent? They would then be red teaming in a rather different and more compliant way.