Data (Use and Access) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Baroness Owen of Alderley Edge

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

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, with the leave of the House, I will also speak to Amendments 54 to 74 and 79.

We all agree that tackling the abuse of intimate image deepfakes is incredibly important. I am delighted that these provisions are returning to this House, having been strengthened in the other place, enabling us once again to discuss this key issue. I extend my heartfelt thanks to the noble Baroness, Lady Owen, for her dedication on this issue. I am also grateful to the noble Lords, Lord Pannick—who unfortunately is not in his place—and Lord Clement-Jones, and others who have generously given much of their time to discussing this issue with me. Their engagement with me and my ministerial colleagues has been instrumental as we have refined our approach to this important topic. It has been a fantastic example of parliamentarians working across the House to get policy in the strongest possible position.

At Third Reading I committed that the Government would bring forward further amendments in the Commons, including on solicitation and time limits. We have delivered on those commitments. I will begin with Commons Amendment 56, which introduces the requesting offence. This addresses the commitment made on solicitation. It replaces, but builds on and delivers the same intent as, the amendment that your Lordships made to the Bill. It comprehensively criminalises asking someone to create a deepfake intimate image for you without the consent of the person in the image or the reasonable belief in their consent. This is an offence regardless of where the person you are asking is based or whether the image was in fact created.

I turn to the commitment on time limits. Commons Amendment 63 was passed to extend the statutory time limit so that prosecutions can be brought at any date that is both within six months of when sufficient evidence comes to the prosecutor’s knowledge and within three years of when the offence was committed. This means that perpetrators will not get away with creating or requesting the creation of a deepfake just because no one knew about it at the time.

A further change was made in the Commons through Commons Amendment 55, to add a defence of reasonable excuse to both the creating and requesting offences. I know that this is likely to be the subject of much debate today, so I will spend some time setting out the Government’s position.

First, I want to reassure the House that the Government’s priority is to create comprehensive, robust defences which ensure that perpetrators cannot evade justice. It is not our intention that the defences provide defendants with a get-out clause, and we do not believe that they do so. This is especially important to stress for the creation of sexual deepfakes, which are so extraordinarily harmful. In our view, it is extremely unlikely that there will ever be a situation where someone creating a sexually explicit deepfake will be able to prove that they had a reasonable excuse. Indeed, we anticipate that the defences would apply only in an extremely narrow set of circumstances, such as for covert law enforcement operations.

It is also our view that, for a very small minority of cases, such as the creation of genuinely satirical images that are not sexually explicit, the defence to the creating offence is legally necessary for it to be compatible with Article 10 of the European Convention on Human Rights. Without the “reasonable excuse” defence, we consider that the creating offence will not be legally robust, and that any legal challenge to its compatibility with Article 10 is likely to be successful. This will not provide the best protection for the victims. Let me labour this very important point: our intention is to create comprehensive, robust offences that will ensure that those who create or request intimate deepfake images without consent, particularly sexual deepfake images, face grave consequences.

I also want to stress that abusers will not be able to evade justice by using spurious excuses. The defendant must provide enough evidence to prove that the creation, or that particular request, without consent was reasonable. They cannot just say it is art or satire without sufficient compelling evidence. It will be for the court, not the defendant, to decide whether something is in fact art or satire. From my many years as a magistrate, I can also reassure the House that it is simply not the case that a defendant can offer up any excuse and assert that it is reasonable. The CPS will challenge spurious arguments, and the courts are extremely well equipped and used to dealing with such arguments quickly.

The Government share the House’s desire to ensure that criminal law, and these defences in particular, work as well as the Government intend. I therefore speak to support the noble Baroness’s Amendments 55E and 56B, which place a binding obligation on the Government to review the operation of the “reasonable excuse” defence, for both the creating and requesting offences, by putting it in the Bill. As part of this review, we will carry out targeted engagement with external stakeholders and subject matter experts to ensure that we make a broad and informed assessment of the defence.

I hope this addresses the concerns about these defences. The best way to protect victims is to ensure that Parliament passes legally sound and robust offences that can bring perpetrators to justice. I urge the House to do that by supporting Motion 55C and Amendment 56B. I beg to move.

[Baroness Owen of Alderley Edge (Con)]

My Lords, I speak to my amendments in this group. In doing so, I declare my interest as a guest of Google at its AI policy conference.

I start by thanking both the Minister and Minister Davies-Jones for taking the time to engage on this issue and for their endless patience. I know they have worked incredibly hard to secure progress on this and I am very grateful for their efforts.

We are down to the issue of whether we believe a person can have a reasonable excuse to create content that looks like a photograph or film of another person without their consent. Noble Lords will recall that this House overwhelmingly indicated that we did not believe “reasonable excuse” should be included as a defence and highlighted concern that it may be misinterpreted or viewed too widely.

I have concerns over the position the Government outlined in their letter from Minister Bryant to the Joint Committee on Human Rights. Minister Bryant argues that the inclusion of “reasonable excuse” is necessary as, without it, the offence would breach the ECHR due to limiting a person’s freedom to create photorealistic satirical art of scenarios such as a person on the toilet or in boxer shorts. Additionally, the Government argued the need for tech companies to be able to red team against this offence.

I share the Government’s strong desire that we do not want this Bill to have a memorandum on it warning that it may breach the ECHR, however precarious the arguments laid out may be. I do not want those who abuse women in this way to claim the prosecution may contravene their human rights.

With this in mind, I turn to my first amendments, Amendments 55C and 56B, written in conjunction with the Government, which offer a review of the implementation of “reasonable excuse” for both the creation and requesting offences after two years. I am grateful to the Minister for the compromise. He will know the conflicts I feel about this issue and the great concern I have that, without guardrails, “reasonable excuse” may be used to allow those who abuse others in this sickening way to escape justice.

I know the Minister will offer me reassurance that the courts will be used to hearing precarious excuses. However, my concern—as noble Lords know—is that image-based sexual abuse has been consistently misunderstood, with the Law Commission itself only arguing three years ago that the harm from creating non-consensual sexually explicit content was not serious enough to criminalise. In 2023, Refuge found that, despite steady year-on-year increases in recorded offences for image-based abuse, only 4% of offenders were charged. Even when a conviction was achieved, only 3% of cases resulted in the perpetrator being deprived of the images used for the offence.

We have seen consistent failure by prosecutors to understand and tackle the issue. I therefore have a very real concern that, by allowing “reasonable excuse” to sit in this offence, we risk it being misunderstood and the offence being undermined. Further, while I am grateful for the offer of a review, I am worried that if after two years we find “reasonable excuse” is allowing perpetrators to evade justice, there will not be a legislative vehicle in which to correct the issue, and the time it takes to correct may be lengthy. I would be grateful if the Minister could offer me reassurance on this point.

Additionally, I am concerned by the very premise of the argument that legislation without “reasonable excuse” would breach the ECHR. I have sought the legal counsel of the noble Lord, Lord Pannick, KC—who apologises for not being here this evening—and he believes that the inclusion of “reasonable excuse” in the defence is not necessary in order to be compliant with the ECHR.

The noble Lord, Lord Pannick, advised, as the Joint Committee on Human Rights already highlighted in its letter, that

“the Government has stated that prosecutorial discretion is sufficient to ensure that an offence that could violate a qualified right under the ECHR is nevertheless compliant with it”.

Additionally, all legislation must, so far as possible, be read and given effect to in a manner that is compliant with the ECHR, according to Section 3 of the Human Rights Act 1998. So, even if there were to be a prosecution in the sort of circumstances contemplated by the Government, the defendant could rely on their Article 10 rights, which means that an all-encompassing reasonable excuse is not necessary.

Additionally, I would be grateful if the Minister could outline to the House the reasons why tech companies cannot red team by prompting with the images of people who do consent and, therefore, not requiring a reasonable excuse, should their model fail and end up creating the content that it is trying to avoid. I would go as far as to say that testing prompts on a model using the image of a person who does not consent would be deeply unethical. It is my belief—and the view of the noble Lord, Lord Pannick, and the noble Baroness, Lady Chakrabarti—that such specific examples do not justify general reasonable excuse. To quote my friend and human rights advocate, the noble Baroness, Lady Chakrabarti:

“Spurious ECHR arguments for weakening 21st century cyber sex offences do not help the cause of those seeking to defend human rights from its many detractors”.

Data (Use and Access) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Baroness Owen of Alderley Edge

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness makes a fair point. In practice, this offence is very likely to be charged with the threat to share and other offences, which are of course imprisonable in their own right. As I said, there is no limitation to the number of offences that can be charged. We think it more appropriate that this be a fine-only offence, given the plethora of other offences which can be charged in this field.

[Baroness Owen of Alderley Edge (Con)]

It is important to clarify that someone can be in a relationship with a partner who creates a sexually explicit deepfake, which presents a very real threat to that person even if their partner has not actually threatened to share it. That is what campaigners and victims believe: if you are in this kind of relationship and you know that someone has developed these sexually explicit deepfakes without your consent, that presents a very real threat. We believe that should be imprisonable.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in a sense, this will be tested in the courts. If the woman knows that the images have been created, the threat is there; that is what she is worried about. Of course, that is a separate offence, as I have already said. On the offence where there is no threat and it is just the creation of the image, we believe that a fine-only sentence is appropriate.

Data (Use and Access) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Baroness Owen of Alderley Edge

Report stage
Tuesday 28th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

Yes. If the noble Baroness wants to bring back a similar amendment on this issue, that indeed can be debated at Third Reading.

[Baroness Owen of Alderley Edge (Con)]

Before the noble Lord sits down, may I get his assurance that deletion will include cloud-based systems and physical copies? He mentioned hardware, but I would like the assurance on the additional physical copies, those held on any device, cloud-based system, digital, messaging or social media platform that a person controls, because you can post something to a personal account without actually having shared it with other people. I would like clarification around that.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

That is certainly the intention of the legislation, but I am aware that it is extremely complex.

[Baroness Owen of Alderley Edge (Con)]

Before the noble Lord sits down again—forgive me—I am concerned about women being inadvertently timed out by the six-month limitation. Could the noble Lord address this point with a little more clarity please?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I understand the point the noble Baroness makes. but that is also something which we are willing to look at. The noble Baroness’s amendment was on the point at which a woman knows that has been such an intimate image abuse. I would point out to her that there may be many cases where the woman never knows that there has been such a type of abuse. I am thinking of previous legislation on upskirting. There have been successful convictions of people for upskirting where the woman never knew she was a victim and the images were of no particular determinate time. I understand the point the noble Baroness is making and I agree in general terms, but there may be a way of addressing the point, capturing the wider point I am making of women who may not know they are victims.

I beg leave to withdraw Amendment 56A.

Non-Consensual Sexually Explicit Images and Videos (Offences) Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Baroness Owen of Alderley Edge

2nd reading
Friday 13th December 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I start by acknowledging the point made by the noble Lord, Lord Clement-Jones, that there is obviously formidable support for the Bill, as we have heard in today’s debate. It is an important Bill, and one which is bringing this issue to the very top of the political agenda.

Like the noble Lord, Lord Davies of Gower, I too have experienced in my role as a magistrate many cases of domestic abuse and domestic violence. I know the noble Lord had that experience during his time as a police officer. Sadly, it is not unusual; it is just that the perpetrators are finding different ways to extend such misogynistic abuse towards women. That is what underlies the noble Baroness’s Bill today.

I would be happy to meet my noble friend Lord Knight and other noble Lords to discuss the Bill and, if I may say so, the wider context of how within government we are going to try to meet the objectives of the Bill through other legislation. I will write to noble Lords on any specific questions that I fail to answer.

I thank the guests of the noble Baroness, Lady Owen: the victims and survivors who are here today. Their physical presence here adds an additional seriousness to the debate. I reiterate the point of the noble Lord, Lord Parkinson, that this is a very well-attended debate for a Friday afternoon, which again is a testament to the importance of the issue.

The Government and I share your Lordships’ concern that more needs to be done to protect women from this form of abuse and to punish those responsible for it. Advances in technology have meant that intimate images can now easily be taken, created or shared without consent, and all at the click of a button. The technology to create realistic deepfake sexual images is readily available to turn harmless everyday images from a person’s social media profile into pornographic material which can then be shared with millions in milliseconds. This cannot continue unchecked.

First, I will talk about the criminal law. Our police must have a comprehensive suite of offences, so that they can effectively target these behaviours. There is a range of existing offences to tackle intimate image abuse, both online and offline, but it is clear that some gaps in protection remain. That is why the Government made a clear commitment in the manifesto to ban the creation of sexually explicit deepfake images of adults. I appreciate that noble Lords and campaigners want us to act without delay, and may be concerned that we are not seizing the opportunity to support this Bill. Let me reassure the noble Baroness and the whole House that we will deliver our manifesto commitment in this Session of Parliament. However, we must act carefully, so that any new measures work with existing law and, most importantly, effectively protect victims and bring offenders to justice. That is what our legislation later in this Session will do. Our manifesto commitment is just the beginning. We are considering whether further legislation is needed to strengthen the law around taking intimate images without consent. I will update the House in due course on this issue.

Ahead of that, I want to mention briefly a couple of areas that have been discussed today. The first is the question of solicitation, mentioned by a number of noble Lords, including the noble Baronesses, Lady Morgan and Lady Owen. As I am sure the noble Baronesses know, for every offence, except those that are specifically excluded, it is automatically also an offence to encourage or assist that offence. Therefore, as soon as we have made it an offence to create a sexually explicit deepfake, it will also be an offence to encourage or assist someone else to commit that offence.

I want to be clear on this: you cannot get round the law by asking someone else in this country to break the law for you. I know the noble Baroness, Lady Owen, is also concerned about the solicitation of deepfake sexually explicit images from other jurisdictions. The question of the application of the laws of England and Wales to other countries is very complex, particularly in relation to offences where elements are committed in different jurisdictions. I reassure her that we are looking very carefully at that issue.

I next move on to the deletion of images, again raised by various noble Lords. I share the noble Baroness’s desire to ensure that perpetrators who are convicted of an intimate image abuse offence are not given their device back by the police with images of the victim still on it. There is already provision under Section 153 of the Sentencing Act 2020 for the court to deprive a convicted offender of their rights in any property, including images, which has been used for the purpose of either committing or facilitating any criminal offence, or which the offender intends to use for that purpose, by making a deprivation order. The courts already have the power to deprive offenders of devices used to commit a sharing offence and of the images which are shared without consent. While judges’ use of these powers is a matter of judicial independence, we will closely examine what changes may be necessary to make sure that such incidents do not occur.

To talk a little more widely about the work that we are doing, while the criminal law is important, it is just one lever we can use to tackle intimate image abuse. Let me outline for noble Lords some of the other work that the Government are doing in this area. I noted the point made by the noble Lord, Lord St John of Bletso, about how advertising drives so much of revenue, which may well be encouraging the further development of these forms of abuse.

Intimate image abuse rightly has serious criminal consequences, but we are also taking steps to tackle the prevalence of this harmful online content. In November we legislated to make sharing intimate images without consent a priority offence under the Online Safety Act 2023, which we have heard quite a lot about in today’s debate. These images will therefore become “priority illegal content” under the Act, forcing social media firms and search service companies to take action to remove them. I noted the point made by the noble Baroness, Lady Morgan, about how all these platforms, not just the big ones, should be subject to these new provisions in the Online Safety Act. We know there are concerns about the process of getting images removed online. The Government’s priority is getting Ofcom’s codes of practice in place. Then we will assess, based on evidence, how effective those protections are and whether we need to go further.

As I have already mentioned, the internet has opened up new outlets for misogyny, and I know noble Lords share my concern at the rise of certain influencers who make a living by peddling their vile ideologies to our young men and boys. This toxic online culture can all too easily lead on to violence against women in the real world. That was a point made by the noble Baroness, Lady Morris of Bolton, and the noble Lords, Lord Bethell and Lord Clement-Jones, and I agree.

It is also critical that we support the victims. There are, of course, many victims of this form of abuse. I remind noble Lords that my department provides funding for a number of services to help victims cope and recover from the impact of crime, including intimate image abuse.

I am not going to have time to address all the points, but I want to pick up one particular point, which I had not heard before, made by the noble Baroness, Lady Gohir, about audio abuse. I take that point seriously and will make sure it gets fed into the system when we are considering legislation.

I find it difficult to disagree with any of the points made by noble Lords, but I know there will be frustration across the House about the Government pursuing their own legislation within this Session. I hope that noble Lords will understand that we want to make it sustainable and that we want the legislation to be solid, to use the noble Baroness’s word, and future-proof as far as is possible. I know very well that this is a difficult thing to do. We have a lot of work to do, and I am sure that all noble Lords will support the Government’s efforts in this field.

[Baroness Owen of Alderley Edge (Con)]

My Lords, before the Minister sits down, can I get his assurance that any pledge on a creation offence will be consent-based and that intent will not have to be proved? He has pledged to legislate in this Session of Parliament, creating the offence, but I would really like to know what kind of vehicle that is going to be and what the implementation period is. As all noble Lords have said, we cannot afford to wait. Any legislative vehicle that is going to take a year to pass, with a long implementation period, is simply not good enough.

[Lord Ponsonby of Shulbrede (Lab)]

Regarding the noble Baroness’s question about consent, I would like to reassure the House that in a criminal case the onus is never on the victim to marshal evidence or to prove 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 work with the CPS when considering changes to the criminal law, to ensure the offence can be prosecuted effectively.