Online Safety Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Thursday 22nd June 2023 Lords Chamber

The core question that motivates the second amendment is that of what the Government think we might do if there are individuals who are not user-to-user or search services and are therefore outside the regulated bucket, who persistently and deliberately breach this new offence of encouragement to self-harm and yet are outside the UK jurisdiction. I hope the Minister agrees that something should be done about that scenario, and I look forward to hearing his suggestion about what may be done.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have two amendments in this grouping. I am afraid that I did not have time to get others to put their names to them, but I hope that they will find some support in this Committee.

For almost the whole of 2021, I chaired an inquiry in Scotland into misogyny. It was about the fact that many complaints were being made to the devolved Government in Scotland about women’s experiences not just of online harassment but of the disinhibition that the internet and social media have given people to be abusive online now also visiting the public square. Many people described the ways in which they are publicly harassed. I know that concerns people in this House too.

When I came to the Bill, I was concerned about something that became part of the evidence we heard. It is no different down here from in Scotland. As we know, many women—I say women, but men receive harassment online too—are sent really vicious, vile things. We all know of parliamentarians and journalists who have received them, their lives made a misery by threats to rape and kill and people saying, “Go and kill yourself”. There are also threats of disfigurement—“Somebody should take that smile off your face”—and suggestions that an acid attack be carried out on someone.

In hearing that evidence, it was interesting that some of the forms of threat are not direct in the way that criminal law normally works; they are indirect. They are not saying, “I’m going to come and rape you”. Sometimes they say that, but a lot of the time they say, “Somebody should rape you”; “You should be raped”; “You deserve to be raped”; “You should be dead”; “Somebody should take you out”; “You should be disfigured”; “Somebody should take that smile off your face, and a bit of acid will do it”. They are not saying, “I’m going to come and do it”, in which case the police go round and, if the person is identifiable, make an arrest—as happened with Joanna Cherry, the Scottish MP, for example, who had a direct threat of rape, and the person was ultimately charged under the Communications Act.

Our review of the kinds of threat taking place showed that it was increasingly this indirect form of threat, which has a hugely chilling effect on women. It creates fear and life changes, because women think that some follower of this person might come and do what is suggested and throw acid at them as they are coming out of their house, and they start rearranging their lives because of it—because they live in constant anxiety about it. It was shocking to hear the extent to which this is going on.

In the course of the past year, we have all become much more familiar with Andrew Tate. What happens with these things is that, because of the nature of social media and people having big followings, you get the pile-on: an expression with which I was not that familiar in the past but now understand only too well. The pile-on is where, algorithmically, many different commentaries are brought together and suddenly the recipient receives not just one, or five, but thousands of negative and nasty threats and comments. Of course, as a public person in Parliament, or a councillor, you are expected to open up your social media, because that is how people will get in touch with you or comment on the things you are doing, but then you receive thousands of these things. This affects journalists, Members of Parliament, councillors and the leaders of campaigns. For example, it was interesting to hear that people involved in the Covid matters received threats. It affects both men and women, but the sexual nature of the threats to women is horrifying.

The Andrew Tate thing is interesting because only yesterday I saw in the newspapers that part of the charging in Romania is about the way in which, because of his enormous following, and his encouragement of violence towards women, he is being charged, among many other things that are directly about violence to and the rape of women, for his incitement to these behaviours in many of his young male followers. In the report of the inquiry that I conducted, there are a number of recommendations around offences of that sort.

To specifically deal with this business of online threats, my amendments seek to address their indirect nature—not the ones that say, “I’m going to do it”, but the encouragement to others to do it or to create the fear that it will happen—and to look at how the criminal law addresses that.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this has been a broad and mixed group of amendments. I will be moving the amendments in my name, which are part of it. These introduce the new offence of encouraging or assisting serious self-harm and make technical changes to the communications offences. If there can be a statement covering the group and the debate we have had, which I agree has been well informed and useful, it is that this Bill will modernise criminal law for communications online and offline. The new offences will criminalise the most damaging communications while protecting freedom of expression.

Amendments 264A, 266 and 267, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Buscombe, would expand the scope of the false communications offence to add identity theft and financial harm to third parties. I am very grateful to them for raising these issues, and in particular to my noble friend Lady Buscombe for raising the importance of financial harm from fake reviews. This will be addressed through the Digital Markets, Competition and Consumers Bill, which was recently introduced to Parliament. That Bill proposes new powers to address fake and misleading reviews. This will provide greater legal clarity to businesses and consumers. Where fake reviews are posted, it will allow the regulator to take action quickly. The noble Baroness is right to point out the specific scenarios about which she has concern. I hope she will look at that Bill and return to this issue in that context if she feels it does not address her points to her satisfaction.

Identity theft is dealt with by the Fraud Act 2006, which captures those using false identities for their own benefit. It also covers people selling or using stolen personal information, such as banking information and national insurance numbers. Adding identity theft to the communications offences here would duplicate existing law and expand the scope of the offences too broadly. Identity theft, as the noble Lord, Lord Clement-Jones, noted, is better covered by targeted offences rather than communications offences designed to protect victims from psychological and physical harm. The Fraud Act is more targeted and therefore more appropriate for tackling these issues. If we were to add identity theft to Clause 160, we would risk creating confusion for the courts when interpreting the law in these areas—so I hope the noble Lord will be inclined to side with clarity and simplicity.

Amendment 265, tabled by my noble friend Lord Moylan, gives me a second chance to consider his concerns about Clause 160. The Government believe that the clause is necessary and that the threshold of harm strikes the right balance, robustly protecting victims of false communications while maintaining people’s freedom of expression. Removing “psychological” harm from Clause 160 would make the offence too narrow and risk excluding communications that can have a lasting and serious effect on people’s mental well-being.

But psychological harm is only one aspect of Clause 160; all elements of the offence must be met. This includes a person sending a knowingly false message with an intention to cause non-trivial harm, and without reasonable excuse. It has also been tested extensively as part of the Law Commission’s report Modernising Communications Offences, when determining what the threshold of harm should be for this offence. It thus sets a high bar for prosecution, whereby a person cannot be prosecuted solely on the basis of a message causing psychological harm.

The noble Lord, Lord Allan, rightly recalled Section 127 of the Communications Act and the importance of probing issues such as this. I am glad he mentioned the Twitter joke trial—a good friend of mine acted as junior counsel in that case, so I remember it well. I shall spare the blushes of the noble Baroness, Lady Merron, in recalling who the Director of Public Prosecutions was at the time. But it is important that we look at these issues, and I am happy to speak further with my noble friend Lord Moylan and the noble Baroness, Lady Fox, about this and their broader concerns about freedom of expression between now and Report, if they would welcome that.

My noble friend Lord Moylan said that it would be unusual, or novel, to criminalise lying. The offence of fraud by false representation already makes it an offence dishonestly to make a false representation—to breach the ninth commandment—with the intention of making a gain or causing someone else a loss. So, as my noble and learned friend Lord Garnier pointed out, there is a precedent for lies with malicious and harmful intent being criminalised.

Amendments 267AA, 267AB and 268, tabled my noble friend Lady Buscombe and the noble Baroness, Lady Kennedy of The Shaws, take the opposite approach to those I have just discussed, as they significantly lower and expand the threshold of harm in the false and threatening communications offences. The first of these would specify that a threatening communications offence is committed even if someone encountering the message did not fear that the sender specifically would carry out the threat. I am grateful to the noble Baroness for her correspondence on this issue, informed by her work in Scotland. The test here is not whether a message makes a direct threat but whether it conveys a threat—which can certainly cover indirect or implied threats.

I reassure the noble Baroness and other noble Lords that Clause 162 already captures threats of “death or serious harm”, including rape and disfigurement, as well as messages that convey a threat of serious harm, including rape and death threats, or threats of serious injury amounting to grievous bodily harm. If a sender has the relevant intention or recklessness, the message will meet the required threshold. But I was grateful to see my right honourable friend Edward Argar watching our debates earlier, in his capacity as Justice Minister. I mentioned the matter to him and will ensure that his officials have the opportunity to speak to officials in Scotland to look at the work being done with regard to Scots law, and to follow the points that the noble Baroness, Lady Bennett, made about pictures—

[Baroness Kennedy of The Shaws (Lab)]

I am grateful to the Minister. I was not imagining that the formulations that I played with fulfilled all of the requirements. Of course, as a practising lawyer, I am anxious that we do not diminish standards. I thank the noble Baroness, Lady Fox, for raising concerns about freedom of speech, but this is not about telling people that they are unattractive or ugly, which is hurtful enough to many women and can have very deleterious effects on their self-confidence and willingness to be public figures. Actually, I put the bar reasonably high in describing the acts that I was talking about: threats that somebody would kill, rape, bugger or disfigure you, or do whatever to you. That was the shocking thing: the evidence showed that it was often at that high level. It is happening not just to well-known public figures, who can become somewhat inured to this because they can find a way to deal with it; it is happening to schoolgirls and young women in universities, who get these pile-ons as well. We should reckon with the fact that it is happening on a much wider basis than many people understand.

[Lord Parkinson of Whitley Bay (Con)]

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. 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, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.