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

Baroness Owen of Alderley Edge Excerpts

2nd reading
Friday 13th December 2024 Lords Chamber

Moved by

[Baroness Owen of Alderley Edge]

That the Bill be now read a second time.

[Baroness Owen of Alderley Edge (Con)]

My Lords, I believe in a woman’s right to choose; the right to choose what she does with her own body and who owns her naked image. With the dawn of AI technology, women have lost this ability. A woman can no longer choose who owns an intimate image of her. Technology has made it possible for intimate images to be created by anyone, anywhere, at any time, regardless of whether a woman consents. The Bill will return power to where it belongs, in the hands of each individual woman. Each clause represents the lived experience of a survivor of image-based sexual abuse. Make no mistake, deepfake abuse is the new frontier of violence against women, and the non-consensual creation of a woman’s naked image is an act of abuse.

Since this technology emerged around 2017, we have seen a rapid proliferation in the content created. It is now near impossible to accurately describe the quantity of these images and videos being made every single day. Research by #MyImageMyChoice found that one app, new to the market, processed 600,000 images in its first three weeks. The largest site dedicated to deepfake abuse has 13.4 million hits every single month.

It is a disproportionately sexist form of abuse, with 99% of all sexually explicit deepfakes being of women. Women are sick and tired of their images being used without their consent to misrepresent, degrade and humiliate them. One survivor, Sophie, who I am honoured to say has joined us today, recalled, “After discovering these images, I questioned, ‘Why me?’. Why had he targeted me in such a way? I stopped making an effort, stopped wearing make-up and didn’t wear my hair down, because maybe, just maybe, if I hadn’t done that before, maybe he wouldn’t have looked at me twice, and maybe it would prevent it happening again”. This abuse causes untold trauma, anxiety and distress.

All women are now forced to live under the ever-present threat than anyone can own sexually explicit content of them. The current law is a patchwork of legislation that cannot keep pace, meaning that we are for ever playing catch-up, while the abuse of women races ahead in a technological revolution of degradation. Meanwhile, victims face a challenging legal situation during a time that one survivor described as leaving her “at the brink of survival”.

The Bill has been written with victim/survivor experience at its heart. This legislation is for Sophie, for Jodie and for every single other woman who has been violated by intimate image abuse: may their experience guide us in creating solid law that criminalises those who seek to minimise and hurt others in this way. The Bill aims to be comprehensive and future-proof against the evolution of these harms. I am grateful for the thoughtful and unwavering counsel of Professor Clare McGlynn, KC, and to the charities and organisations backing the Bill: Refuge, the Revenge Porn Helpline, #MyImageMyChoice, #NotYourPorn, the End Violence Against Women coalition and Jodie Campaigns. I declare my interest as a guest of Google at its future forum, a policy conference where we discussed the vital importance of clear legislation to tackle image-based abuse.

The Bill should be seen as a piece of the puzzle of the much wider Sexual Offences Act. It is designed to complement the pre-existing offences within the Act in order to keep consistency and make the current law more comprehensive by closing the gaps that abusers slip through. The taking, creating and solicitation offences in the Bill are, importantly, consent-based, aligning with existing offences and removing the need for victims to prove the motivation of the perpetrator, a hugely unnecessary and re-traumatising burden on victims. Proposed new section 66E, the taking offence, follows the Law Commission recommendation that the current voyeurism and upskirting offences needed updating with a single taking offence. The new section defines “taking” by including the words “otherwise capturing”, in order to future-proof for the ways in which the taking of a photo will evolve over time. In this way, vitally, it brings screenshotting into the scope of the Bill.

Proposed new section 66F makes it an offence to create or solicit the creation of sexually explicit content without a person’s consent. The solicitation offence is inspired by my work with Jodie, who I had the privilege of introducing to many noble Lords at the briefing last week. In the course of five years, Jodie found that her images were being stolen from her private Instagram page and posted on forums, with requests to use her image to create sexually explicit content. The images, which were of her fully clothed and were uploaded by someone she counted as her best friend, were accompanied by degrading captions and incitations, asking others on the forum what they would like to do to “little Jodie” and to deepfake her into pornographic situations on his behalf. One depicted Jodie as a schoolgirl being raped by her teacher.

Jodie’s experience emphasises to us that it is not enough simply to make a creation offence; we must also make it an offence to solicit the creation from others. The borderless nature of the internet means that any creation law can be circumvented by asking others in different jurisdictions to create the content for you. I would like a firm commitment from the Government today that they will make the solicitation of sexually explicit content an offence, for Jodie’s sake.

The Bill would introduce a clause on forced deletion to make the law clearer for survivors to navigate. The brilliant Revenge Porn Helpline, which offers essential support to those who are victims of image-based abuse, shared the case of a woman who, after a long fight for justice, managed to bring charges against her ex-boyfriend for the non-consensual sharing of her intimate images—only to be contacted by the police, telling her that they now had to hand back all the devices to the perpetrator, with the content remaining on them.

That is yet another example of the abuse of women not being treated on a par with other crimes. I am sure we would all struggle to imagine a convicted criminal being handed back contraband. That survivor has to live under the ever-present threat that her ex-partner is still in possession of those photos of her. My Bill would give the court the right to enforce the deletion and destruction of those images, both physical and digital, so that survivors do not have to suffer the trauma of that content being in the hands of their abuser and living in fear that the content may be republished at any given moment. Will the Minister make a commitment today to legislate for forced deletion?

The Bill works with the pre-existing definition of “an intimate state” in the Sexual Offences Act in order to have consistency. I have added to the definition as follows:

“something else depicting the person that a reasonable person would consider to be sexual because of its nature”.

In that way, it brings into scope the victims of semen images, rather sickeningly referred to in the online community as a “cum tribute”. This is where men physically masturbate over a woman’s image and share the image online, or artificially use AI to put semen on to the images.

At present, if the victim depicted in the image is not nude or participating in a sexual act, they are afforded legal recourse only by way of a communication or harassment offence. The new wording would bring semen images into scope for not only the creation offence but the pre-existing sharing offence. Critically, the wording would also future-proof against the evolution of these harms. Does the Minister agree with me that this degradation is clearly sexual in nature and that women should be afforded greater protection from this sickening violation?

Most importantly, the Bill would be implemented as soon as it reached Royal Assent. The victims of intimate image abuse have waited long enough. Given the rapid proliferation of that abuse, every day that we delay is another day when women have to live under this ever-present threat. It would simply be unconscionable to make them wait any longer.

I put on record my gratitude to all noble Lords across the House and to those in the other place for their unwavering support for the Bill. I am grateful to the Government, the Minister, the noble Lord, Lord Ponsonby, and the Minister, Alex Davies-Jones, for taking the time to meet me and discuss this legislation. I am disappointed by their response, suggesting that they will not support this vital Bill, and by their apparent willingness to delay on legislating on image-based abuse.

The Government should be in no doubt that image-based abuse is the new frontier of violence against women. If they value legislation with victim survivor experience at its heart, if they want to fulfil their own manifesto commitment as quickly as possible, and if they are serious in their pledge to tackle violence against women and girls, they must change their minds and back the Bill. The Home Secretary committed to using every tool available to take power from abusers and hand it to victims, so I ask the Minister: why not this one? I beg to move.

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[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.

--- Later in debate ---

[Baroness Owen of Alderley Edge (Con)]

My Lords, I thank all noble Lords who participated in this debate, as well as those who could not be here but offered their support and advice. I thank again the wonderful charities that have fought so hard for so long on this issue. I pay tribute to the women who found out, in the worst possible way, where the gaps in the law are failing victims.

I am devastated by the Government’s refusal to back this Bill, and I know that survivors will feel let down. I will continue to fight using every legislative vehicle available to me, because we cannot afford any more delays in getting these protections enshrined in law. This was about offering a clear pathway to justice for victims.

When speaking to Jodie about the possible government response, she said that deepfake abuse made her feel like her autonomy had been ripped away, leaving her terrified, isolated and questioning everyone around her. She added that

“every day this abuse goes unaddressed is another day women are left to suffer in silence, abandoned by the very systems that are meant to protect them. Time is of the essence. The longer we wait, the more women will find themselves isolated, afraid, and desperate, just as I was. This bill will save lives, and delaying action is a betrayal of those who need our protection the most”.

I urge the Minister and the Government: please do not let women like Jodie down.

Bill read a second time and committed to a Committee of the Whole House.