Online Safety Bill

Baroness Burt of Solihull Excerpts

Thursday 25th May 2023 Lords Chamber

I hope that noble Lords will accept the government amendment, I look forward to the debate, and I beg to move.

[Baroness Burt of Solihull (LD)]

My Lords, I will speak to Amendment 270 in the name of my noble friend Lady Featherstone, who I regret to tell the House is still indisposed, and to support Amendments 269 and 271 respectively in the names of the noble Baronesses, Lady Merron and Lady Berridge, which my noble friend also signed up to.

In the real world, if a man flashed his genitals at a woman or a girl in public, this would constitute a criminal offence punishable by up to two years in prison. Rightly so—she has no choice in the matter. He may do it to cause alarm, distress or humiliation, or to obtain sexual gratification. Apparently, he may hope that the girl or woman he flashes to will be overcome with desire for him, although you would be hard-pressed to find many cases of this pipe dream—pun intended—ever becoming a reality. More seriously, however, this behaviour can be a precursor to more serious offences, as happened with the murder of Sarah Everard.

In the online world, many things are done and said which would be totally unacceptable in real life. Therefore, while the motivation for physical flashing is usually to obtain sexual gratification or cause fear in the victim, in the permissive world of online other motivations are mooted—“for a laugh”, in the hope of reciprocal pictures being flashed back at the flasher, or even in the hope of initiating something physical—although in the online world, as well as in the real world, unsolicited images of male genitalia are rarely welcomed by women or girls.

Indeed, the vast majority of women who receive these unsolicited images are not laughing. Research by Professor Clare McGlynn KC at Durham University found that women report feeling violated, threatened, intimidated and harassed. They experience a loss of control, privacy and sexual autonomy. They feel personally targeted. Some women are bombarded with these images across social media and dating apps, so they are intimidated into changing their behaviour online as a result. This is in no one’s interests; it is something the Bill is intended to prevent. Research from Jessica Ringrose and colleagues at UCL found that 76% of teenage girls had been sent unwanted explicit images by their peers and by strangers. The women-orientated online dating platform Bumble produced a survey finding that 48% of millennial women had been cyberflashed in the last year alone.

The Law Commission recommended a new criminal offence of cyberflashing, and its recommendation has been incorporated in Schedule 7. The inclusion of cyberflashing as a potentially criminal offence is to be warmly welcomed. However, the premise of the Bill as it stands is motive based. This means that the prosecution must prove that the sender had the intention to cause distress, alarm or humiliation to the victim, or that sexual gratification was the motive and the sender was reckless as to any distress that might be caused. This means that many forms of cyberflashing, including when men are doing it to “have a laugh” or to show off to their friends, would not be covered, regardless of the harm caused to the victims. Currently, someone who sends a dick pic to a girl “for a laugh” is unlikely to be prosecuted if he thinks, “She should have found it funny too”. Really? If any noble Lord has evidence that most women enjoy unsolicited cyberflashing, let him bring it forward.

I ask the Minister the rhetorical question: how do you prove motivation? The Minister may have been told that many men send these images in the hope of getting nudes or other favours in return, and as a form of sexual gratification. Proving motive will be well-nigh impossible, and the sheer fact of having to prove it to get a conviction will put off police. They are hardly going to waste precious resources prying into senders’ backgrounds. How would you do that? Check out their porn habits, perhaps? This is the difficulty we have seen with the need to prove intent to cause distress in the distribution of intimate images offence. Under these strictures, very few prosecutions would result and girls and women would continue to suffer.

To my mind, and to the minds of all the women’s organisations that responded to the government consultations, it is all the wrong way around. Ultimately, the motivation of the perpetrator has no bearing on the outcome for the victim. They suffer regardless. If alarm, distress, humiliation, et cetera was caused, would the logical solution not be to take steps to prevent it in the first place? Would it not prevent a lot of suffering if the sender were to check that they were not going to cause those effects before sending the dick pics? It is not hard to do, but it may well cause someone who thinks it is a fun prank to send a picture of his willy to think again.

This amendment would send the clear message to men and boys that you have to have consent before you send your image. This would have an educational value, too. It is about learning how to respect women and girls and appreciate that they are different in their thinking from boys and men.

As it stands, sending unsolicited images could have the effect of bullying, intimidating or sexualising women and girls. This is not good enough, and we would be squandering the opportunity to protect women and girls. It is not difficult to ask whether it is okay before you send.

I do not understand the inconsistency of the Law Commission here. In its 2022 report on intimate image abuse, the Law Commission recommended an offence of taking and sharing intimate images without consent, regardless of motivation. It used the same arguments that Amendment 270 uses today, including difficulty in evidencing the intention of the perpetrator. In November 2022 the Government accepted the Law Commission’s recommendations. Surely the same principle applies to cyberflashing.

Amendment 270 has also addressed any circumstances in which use of legitimate images of genitals might be inadvertently caught in the net. These would, of course, not attract prosecution. I will not list them all here: they are in proposed new subsection (7) in the amendment. Young boys would be appropriately dealt with through the youth justice system: it is in no one’s interest to brand them with a criminal record, unless that would be in the public interest.

The argument boils down to priorities. The Bill as it stands prioritises boys’ and men’s rights to be “funny” over girls’ and women’s rights to live free from harassment and abuse. We must stop making women who receive such images responsible and hold those who commit gendered harms to account. I hope the Minister will agree.

[Baroness Gohir (CB)]

My Lords, I support Amendment 135A in the name of the noble Lord, Lord Parkinson. I also support Amendment 269 in the name of the noble Baroness, Lady Merron, and Amendment 270 in the name of the noble Baroness, Lady Featherstone, and have added my name to both. I wish the noble Baroness, Lady Featherstone, good health and hope to see her back soon.

I welcome adding coercive control to Schedule 7 to ensure that content amounting to this offence counts as priority illegal content. Coercive control has a very damaging and long-term impact on mental health and, increasingly, abusers are maintaining their power and hold over victims through digital coercive control, which is like having invisible chains that you cannot break free from. This will send a clear message to tech companies that they must better understand and tackle online domestic abuse and will mean that perpetrators will be held accountable for their actions.

I also welcome the effort by the Government to criminalise cyberflashing. No one should be forced to see images of genitals. This is a growing form of sexual harassment of girls and women. Of course, I acknowledge that young boys and men can also be sent unwanted images. However, the majority of the cases involve images of male genitals being sent by men to women and girls. Very worryingly—as mentioned by the noble Baroness, Lady Burt—research by Professor Jessica Ringrose from 2020 found that 76% of girls aged 12 to 18 had been sent unsolicited nude images of boys or men.

While I am pleased that concerns raised by women and women’s groups have been heard by the Government, the wording in the Bill does not go far enough to protect women and girls from this type of sexual harassment. With the present wording, an offence is based on motive rather than consent, as mentioned by the noble Baroness, Lady Burt. I also thank Professor Clare McGlynn, Bumble and many others who have made a strong case for a consent-based cyberflashing offence rather than the motive-based approach proposed by the Government.

I put my name to these amendments because the offence in its current form will not be effective. It relies on the victims of cyberflashing, who will mostly be women and girls, to prove that the motive or intention in sending the image of genitals was deliberately to cause distress or for sexual gratification, so I ask: why should the onus be put on the victim to prove the sender’s intent when it comes to reporting cyberflashing? I would be grateful if the Minister could respond to this question.