Online Safety Bill (Fourteenth sitting)

Dean Russell Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Kim Leadbeater]

I move the amendment in my name and will speak to amendment 113, which is in the name of the hon. Member for Blackpool North and Cleveleys (Paul Maynard).

The amendment would put into effect Zach’s law in full. Zach, as many Members know, is an amazing, energetic and bright young boy from my constituency. I had the absolute pleasure of visiting Zach and his mum Clare at their home in Hartshead a few weeks ago. We chatted about school and his forthcoming holiday, and he even invited me to the pub. However, Zach also has epilepsy.

Disgustingly, he was trolled online a few years ago and sent flashing images by bullies, designed to trigger his condition and give him an epileptic seizure, a seizure that not only would cause him and his family great distress, but can be extremely dangerous and cause Zach significant psychological and physical harm. I know that we are all united in our disgust at such despicable actions and committed to ensuring that this type of unbelievable online bullying is against the law under the Bill.

On Second Reading, I raised the matter directly with the Minister and I am glad that he pointed to clause 150 and stated very explicitly that subsection (4) will cover the type of online harm that Zach has encountered. However, we need more than just a commitment at the Dispatch Box by the Minister, or verbal reassurances, to protect Zach and the 600,000 other people in the UK with epilepsy.

The form of online harm that Zach and others with epilepsy have suffered causes more than just “serious distress”. Members know that the Bill as drafted lists

“psychological harm amounting to at least serious distress”

as a qualifying criterion of the offence. However, I believe that does not accurately and fully reflect the harm that epilepsy trolling causes, and that it leaves a significant loophole that none of us here wish to see exploited

For many people with epilepsy, the harm caused by this vicious online trolling is not only psychological but physical too. Seizures are not benign events. They can result in broken bones, concussion, bruises and cuts, and in extreme cases can be fatal. It is simply not right to argue that physical harm is intrinsically intertwined with psychological harm. They are different harms with different symptoms. While victims may experience both, that is not always the case.

Professor Sander, medical director of the Epilepsy Society and professor of neurology at University College London Hospitals NHS Foundation Trust, who is widely considered one of the world’s leading experts on epilepsy, has said:

“Everyone experiences seizures differently. Some people may be psychologically distressed by a seizure and not physically harmed. Others may be physically harmed but not psychologically distressed. This will vary from person to person, and sometimes from seizure to seizure depending on individual circumstances.”

Amendment 112 will therefore expand the scope of clause 150 and insert on the face of the Bill that an offence will also be committed under the harmful communications clause when physical harm has occurred as a consequence of receiving a message sent online with malicious intent. In practical terms, if a person with epilepsy were to receive a harmful message online that triggers their epilepsy and they subsequently fall off their chair and hit their head, that physical harm will be proof of a harmful communication offence, without the need to prove any serious psychological distress that may have been caused.

This simple but effective amendment, supported by the Epilepsy Society, will ensure that the horrific trolling that Zach and others with epilepsy have had to endure will be covered in full by the Bill. That will mean that the total impact that such trolling has on the victims is reflected beyond solely psychological distress, so there can be no ambiguity and nowhere for those responsible for sending these images and videos to hide.

I am aware that the Minister has previously pointed to the possibility of a standalone Bill—a proposal that is under discussion in the Ministry of Justice. That is all well and good, but that should not delay our action when the Bill before us is a perfectly fit legislative vehicle to end epilepsy trolling, as the Law Commission report recommended.

I thank colleagues from across the House for the work they have done on this important issue. I sincerely hope that the amendment is one instance where we can be united in this Committee. I urge the Minister to adopt amendment 112, to implement Zach’s law in full and to provide the hundreds of thousands of people across the UK living with epilepsy the legal protections they need to keep them safe online. It would give me no greater pleasure than to call at Zach’s house next time I am in the area and tell him that this is the case.

[Dean Russell (Watford) (Con)]

May I praise the hon. Member for Batley and Spen for such an eloquent and heartfelt explanation of the reason why this amendment to the Bill is so important?

I have been campaigning on Zach’s law for the past nine months. I have spoken to Zach multiple times and have worked closely with my hon. Friend the Member for Stourbridge (Suzanne Webb) in engaging directly with Facebook, Twitter and the big platforms to try to get them to do something, because we should not need to have a law to stop them sending flashing images. We had got quite far a few months ago, but now that seems to have stalled, which is very frustrating.

I am stuck between my heart and my head on this amendment. My heart says we need to include the amendment right now, sort it out and get it finalised. However, my head says we have got to get it right. During the Joint Committee for Online Safety before Christmas and in the evidence sessions for this Bill, we heard that if the platforms want to use a loophole and get around things they will. I have even seen that with regard to the engagements and the promises we have had.

[Kirsty Blackman]

I wonder whether the hon. Gentleman would consider a belt and braces approach as the best way forward? We could have it in the Bill and have the other legislation, in order that this will definitely protect people and companies will not be able to wriggle out of it.

[Dean Russell]

That is an excellent point. I have yet to make up my mind which way to vote if the amendment is pressed to a vote; I do not know whether this is a probing amendment. Having spoken to the Epilepsy Society and having been very close to this issue for many months, for me to feel comfortable, I want the Minister not just to say, as he has said on the Floor of the House, to me personally, in meetings and recently here, that the clause should cover epilepsy, and does seem to, and that he is very confident of that, but to give some assurance that we will change the law in some form.

[Kim Leadbeater]

I am incredibly grateful for the hon. Member’s comments and contribution. I agree wholeheartedly. We need more than a belief and an intention. There is absolutely no reason why we cannot have this in black and white in the Bill. I hope he can find a way to do the right thing today and vote for the amendment.

[Dean Russell]

The phrase “Do the right thing” is at the heart of this. My hon. Friend the Member for Ipswich (Tom Hunt) presented the Flashing Images Bill yesterday. A big part of this is about justice. I am conscious that we have got to get the balance right; stopping this happening has an impact for the people who choose to do this. I am keen to hear what the Minister says. We have got to get this right. I am keen to get some assurances, which will very much sway my decision on the vote today.

[Caroline Ansell (Eastbourne) (Con)]

At the risk of following my earlier voting pattern, I am also very much with the hon. Member for Batley and Spen in spirit. I could not do the subject any more justice than she has, describing this appalling online behaviour and just how damaging it is. I am a member of the all-party parliamentary group on epilepsy and have lived experience myself.

I want to highlight the comments of the Epilepsy Society, which I am sure is following our work this afternoon. It welcomes many of the introductions to the Bill, but highlights something of a legislative no man’s land. Clause 187 mentions physical harm, but does not apply to clause 150. Clause 150 only covers psychological harm when, as we have heard described, many seizures result in physical harm and some of that is very serious. I know the Minister is equally committed to see this measure come about and recognises the points we have demonstrated. The hon. Lady is right that we are united. I suspect the only point on which there might be some difference is around timing. I will be looking to support the introduction and the honouring in full of Zach’s law before the Bill is passed. There are many other stages.

My understanding is that many others wish to contribute, not least the Ministry of Justice. My hope, and my request to the Minister, is that those expert stakeholder voices will be part of the drafting, should it not be the case that supporting the amendment presented today is the very best and strongest way forward. I want to see recognition in law.

--- Later in debate ---

[Chris Philp]

No, it is not a bonus, because we cannot have two different laws that criminalise the same thing. We want to have laws that are, essentially, mutually exclusive. If a person commits a particular act, it should be clear which Act the offence is being committed under. Imagine that there were two different offences for the same act with different sentences—one is two years and one is 10 years. Which sentence does the judge then apply? We do not want to have law that overlaps, where the same act is basically a clear offence under two different laws. Just by using the term “physical harm”, amendment 112 creates that. I accept that it would cover epilepsy, but it would also cover a whole load of other things, which would then create duplication.

That is why the right way to do this is essentially through a better drafted version of amendment 113, which specifically targets epilepsy. However, it should be done with drafting that has been done properly—with respect to my hon. Friend the Member for Blackpool North and Cleveleys, who drafted the amendment—with definitions that are done properly, and so on. That is what we want to do.

[Dean Russell]

Having been involved on this Bill for quite a while now and having met Zach, I know the concerns that the Epilepsy Society have had. For me, we just need the Minister to tell us, which I think he has, that this will become law, whatever the vehicle for that is. If we know that this will be an offence by the end of this year—hopefully by summer, if not sooner—so that people cannot send flashing images to people with epilepsy, like Zach, then I will feel comfortable in not backing the amendment, on the premise that the Government will do something, moving forward. Am I correct in that understanding?

[Chris Philp]

Yes. Just to be clear, in no world will a new law pass by the summer recess. However, I can say that the Government are committed, unequivocally, to there being a new offence in law that will criminalise epilepsy trolling specifically. That commitment is categoric. The only matter on which I need to come back to the House, which I will try to do on Report, is to confirm specifically which Bill that offence will go in. The commitment to legislate is made unequivocally today.

--- Later in debate ---

[Chris Philp]

The progress that the campaign has made, with the clear commitment from the Government that we are going to legislate for a specific epilepsy trolling offence, is a huge step forward. I entirely understand the hon. Lady’s impatience. I have tried to be as forthcoming as I can be about likely times, in answer to the question from the hon. Member for Aberdeen North, within the constraints of what is currently collectively agreed, beyond which I cannot step.

Amendment 112 will sort out the epilepsy, but unfortunately it will create duplicative criminal law. We cannot let our understandable sense of urgency end up creating a slightly dysfunctional criminal statute book. There is a path that is as clear as it reasonably can be. Members of the Committee will probably have inferred the plan from what I said earlier. This is a huge step forward. I suggest that we bank the win and get on with implementing it.

[Dean Russell]

I appreciate that there will be differences of opinion, but I feel that Zach should be smiling today whatever the outcome—if there is a vote, or if this is a probing amendment. When I have chatted about this previously over many months, it has been a real challenge. The Minister quite rightly said that the Bill already covered epilepsy. I felt that to be true. This is a firming up of the agreement we had. This is the first time I have heard this officially in any form. My message to Zach and the Epilepsy Society, who may well be watching the Committee, is that I hope they will see this as a win. With my head and my heart together, I feel that it is a win, but I forewarn the Minister that I will continue to be like a dog with a bone and make sure that those promises are delivered upon.

[Chris Philp]

I think that is probably a good place to leave my comments. I can offer public testimony of my hon. Friend’s tenacity in pursuing this issue.

I ask the hon. Member for Batley and Spen to withdraw the amendment. I have given the reasons why: because it would create duplicative criminal law. I have been clear about the path forward, so I hope that on that basis we can work together to get this legislated for as a new offence, which is what she, her constituent and my hon. Friends the Members for Watford and for Eastbourne and others have been calling for.