Online Safety Bill

Lord Garnier Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

Moved by

[Lord Garnier]

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.

[Lord Garnier (Con)]

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”.

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[Lord Parkinson of Whitley Bay (Con)]

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.

[Lord Garnier (Con)]

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.

[Lord Parkinson of Whitley Bay (Con)]

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.

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[Lord Parkinson of Whitley Bay (Con)]

The issue the noble Baroness has highlighted will protect all victims against people trying to evade the law, and I am grateful to her. We will bring forward an amendment at Third Reading.

[Lord Garnier (Con)]

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.