Online Safety Bill

Baroness Morgan of Cotes Excerpts

Thursday 25th May 2023 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I am grateful to noble Lords who have added their name to my Amendment 271, which arose out of concerns that there are now seemingly several offences that laudably aim to protect women but are not being enforced effectively. The most notable in this category is the low rate of rape cases that are prosecuted and lead to convictions. The amendment is not affected in theory by the definition of cyberflashing, whether it is in the form recommended by the Law Commission, that of specific intent, rather than being based on consent. However, in practice, if it remains in that specific intent form, then the victim will not be required to go to court. Therefore, in practice the amendment would be more effective if the offence remained on that basis. However, even if the victim on that basis does not need to go to court, someone who has been cyberflashed is, as other noble Lords have mentioned, unlikely to go to the police station to report what has happened.

This amendment is designed to put an obligation on the providers of technology to provide a reporting mechanism on phones and to collate that information before passing it to the prosecuting authorities. The Minister said that there are various issues with how the amendment is currently drafted, such as “the Crown Prosecution Service” rather than “the police”, and perhaps the definition of “providers of internet services” as it may be a different part of the tech industry that is required to collate this information.

Drawing on our discussions on the previous group of amendments regarding the criminal law here, I hope that my noble friend can clarify the issues of intent, which is mens rea and different from motive in relation to this matter. The purpose of the amendment is to ensure that there will be resources and expertise from the technology sector to provide these reporting mechanisms for the offences. One can imagine how many people will report cyberflashing if they only have to click on an app, or if their phone is enabled to retain such an image, since some of them disappear after a short while. You should be able to sit on the bus and report it. The tech company would then store and collate that, potentially in a manner that it would become clear. For instance—because this happens so much as we have just heard—if six people on the 27 bus multiple times a week report that they have received the same image, that would prompt the police to get the CCTV from the bus company to identify who this individual is if the tech company data did not provide that specificity. Or, is someone hanging out every Friday night at the A&E department and cyberflashing as they sit there? This is not part of the amendment, but such an app or mechanism could also include a reminder to change the security settings on your phone so that you cannot be AirDropped.

I hope that His Majesty’s Government will look at the purpose of this amendment. It is laudable that we are making cyberflashing an offence, but this amendment is about the enforcement of that offence and will support that. Only with such an easy mechanism to report it can what will be a crime be effectively policed.

[Baroness Morgan of Cotes (Con)]

My Lords, I, too, wish the noble Baroness, Lady Featherstone, a very speedy recovery. Her presence here today is missed, though the amendments were very ably moved by the noble Baroness, Lady Burt. Having worked in government with the noble Baroness, Lady Featherstone, I can imagine how frustrated she is at not being able to speak today on amendments bearing her name.

As my noble friend said, this follows our debate on the wider issues around violence against women and girls in the online world. I do not want to repeat anything that was said there, but I am grateful to him for the discussions that we have had since. I support the Government in their introduction of Amendment 135A and the addition of controlling or coercive behaviour to the priority offences list. I will also speak to the cyberflashing amendments and Amendment 271, introduced by my noble friend Lady Berridge.

I suspect that many of us speaking in this debate today have had briefings from the wonderful organisation Refuge, which has seen a growing number of cases of technology-facilitated domestic abuse in recent years. As a result of this, Refuge pioneered a specialist technology-facilitated domestic abuse team, which uses expertise to support survivors and to identify emerging trends of online domestic abuse.

I draw noble Lords’ attention to a publication released since we debated this last week: the National Police Chiefs’ Council’s violence against women and girls strategic threat risk assessment for 2023, in which a whole page is devoted to tech and online-enabled violence against women and girls. In its conclusions, it says that one of the key threats is tech-enabled VAWG. The fact that we are having to debate these specific offences, but also the whole issue of gendered abuse online, shows how huge an issue this is for women and girls.

I will start with Amendment 271. I entirely agree with my noble friend about the need for specific user reporting and making that as easy as possible. That would support the debate we had last week about the code of practice, which would generally require platforms and search engines to think from the start how they will enable those who have been abused to report that abuse as easily as possible, so that the online platforms and search engines can then gather that data to build up a picture and share it with the regulator and law enforcement as appropriate. So, while I suspect from what the Minister has said that he will not accept this amendment, the points that my noble friend made are absolutely necessary in this debate.

I move on to the cyberflashing amendment. It has been very ably covered already, so I do not want to say too much. It is clear that women and girls experience harms regardless of the motives of the perpetrator. I also point out that, as we have heard, motivations are very difficult to prove, meaning that prosecutions are often extremely unlikely.

I was very proud to introduce the amendments to what became the Domestic Abuse Act 2021. It was one of my first contributions in this House. I remember that, in the face of a lockdown, most of us were working virtually. But we agreed, and the Government introduced, amendments on intimate image abuse and revenge porn. Even as I proposed those amendments and they were accepted, it was clear that they were not quite right and did not go far enough. As we have heard, for the intimate image abuse proposals, the Law Commission is proposing a consent-based image abuse offence. Can my noble friend be even clearer—I am sorry that I was not able to attend the briefing—about the distinction between consent-based intimate image abuse offences and motive-based cyberflashing offences, and why the Government decided to make it?

I also gently point out to him that I know that this is complicated, but we are still waiting for drafting of the intimate image abuse offences. We are potentially running out of time. Perhaps we will see them at the next stage of the Bill—unless he reveals them like a rabbit out of a hat this afternoon, which I suspect is not the case. These are important offences and it will be important for us to see the detail so that we can scrutinise them properly.

Finally, in welcoming the Government’s amendment on coercive control, I say that it is generally poorly understood by technology companies. Overall, the use of the online world to perpetrate abuse on women and girls, particularly in the domestic abuse context, is certainly being understood more quickly, but we are all playing catch-up in how this happens while the perpetrators are running ahead of us. More can be done to recognise the ways that the online world can be used to abuse and intimidate victims, as the Government have recognised with this amendment and as the noble Baroness, Lady Gohir, said. It is very necessary in debating the Bill. I look forward to hearing the Minister’s remarks at the end of this debate.

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I will certainly do so. It requires flicking through a number of amendments and cross-referencing them with provisions in the Bill. I will certainly do that in slower time and respond.

We think that the Law Commission, which looked at all these issues, including, I think, the questions put by the noble Lord, has done that well. We were satisfied with it. I thought its briefing with Professor Penney Lewis was useful in exploring those issues. We are confident that the offence as drafted is the appropriate one.

My noble friend Lady Morgan and others asked why both the Law Commission and the Government are taking a different approach in relation to intimate image abuse and to cyberflashing. We are taking action to criminalise both, but the Law Commission recommended different approaches in how to criminalise that behaviour to take into account the different actions of the perpetrator in each scenario. Sharing an intimate image of a person without their consent is ipso facto wrongful, as it is a violation of their bodily privacy and sexual autonomy. Sending a genital image is not ipso facto wrongful, as it does not always constitute a sexual intrusion, so greater additional culpability is required for that offence. To give an example, sending a photograph of a naked protestor, even without the consent of the recipient, is not always harmful. Although levels of harm resulting from behaviours may be the same and cause the same levels of stress, the criminal law must consider whether the perpetrator’s behaviour was sufficiently culpable for an offence to have been committed. That is why we think the intent approach is best for cyberflashing but have taken a different approach in relation to intimate image abuse.

[Baroness Morgan of Cotes (Con)]

I thank my noble friend for that explanation, which is very helpful and there is a lot in his reply so far that we will have to bottom out. Is he able to shed any light at all on when we might see the drafting of the intimate image abuse wording because that would be helpful in resolving some of the issues we have been debating?

[Lord Parkinson of Whitley Bay (Con)]

I cannot give a precise date. The Committee knows the dates for this Committee are a moveable feast, but we have been having fruitful discussions on some of the issues we have already discussed—we had one yesterday with my noble friend. I appreciate the point she is making about wanting to see the drafting in good time before Report so that we can have a well thought through debate on it. I will certainly reiterate that to the usual channels and to others.

Amendment 271 additionally seeks to require companies in scope to provide systems which enable users to report incidents of cyberflashing to platforms. Clauses 16 and 26 already require companies to set up systems and processes which allow users easily to report illegal content, and this will include cyberflashing. This amendment therefore duplicates the existing requirement set out in the Bill. Amendment 271 also requires in scope companies to report cyberflashing content to the Crown Prosecution Service. The Bill does not place requirements on in scope companies to report discovery of illegal content online, other than in the instances of child exploitation and abuse, reflecting the seriousness of that crime and the less subjective nature of the content that is being reported in those scenarios.

The Bill, which has been developed in consultation with our partners in law enforcement, aims to prevent and reduce the proliferation of illegal content and activity in the first place and the resulting harm this causes to so many. While the Bill does not place any specific responsibilities on policing, our policing partners are considering how best to respond to the growing threat of online offences, as my noble friend Lady Morgan noted, in relation to the publication last week of the Strategic Threat and Risk Assessment on Violence Against Women and Girls. Policing partners will be working closely with Ofcom to explore the operational impact of the Bill and make sure it is protecting women and girls in the way we all want it to.

I hope that helps noble Lords on the issues set out in these amendments. I am grateful for the support for the government amendment in my name and hope that noble Lords will be content not to move theirs at this juncture.