Digital Images and Consent

Liz Saville Roberts Excerpts

Wednesday 25th April 2018 Commons Chamber

[Meg Hillier]

Absolutely. I will go on to highlight some of the expert advice we have had about where there may be possibility for change or interpretation of the law as it stands. Currently, the law does not appear to recognise the difference between viewing someone naked, and filming or photographing someone naked without their consent. I put it to Members: should it be legal for someone, whether a stranger, partner, spouse or friend, to film another person naked without their consent when they are in a private situation? Most people would say no. None of us would want bad law made in hurry, so I understand the Government may not want to rush into this, and although the initial response may have been disappointing, I get where they are coming from. However, they do need to tackle this issue. This may not be affecting that many people now, although we do not know the full extent of it, but this issue is not likely to go away while people have mobile phones in their pockets. It causes great distress, so the Government do need to think about the impact on the individuals concerned and they have to consider a way forward.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I congratulate the hon. Lady on securing this debate. Does she share my concern that the sheer plethora of legislation—30-plus pieces, one of which dates back to 1861—to deal with digital abuse is unsuitable for the 21st century? Does she agree that criminal justice professionals need training in this area, as well as our needing to consider new powers?

[Meg Hillier]

I thank the hon. Lady very much for that. She rightly highlights the fact that there is law in this area but it does not fit modern purposes and it is very complicated for people to navigate their way through. It is not beyond the wit of Government to pull some of that together, perhaps under a future legislative vehicle, if not a law in its own right.

Everybody has a camera in their pocket and everyone has a laptop with a tiny camera in their bedroom. The Government responded to me, saying that:

“we would not necessarily want to criminalise all photographic images depicting naked people without consent because there might be legitimate use for that data in some circumstances.”

I asked the Minister what circumstances those might be, and I am going to go on to talk about some of that in a moment. The Government also say it would be unreasonable to seek consent in all cases, and they give the examples of a streaker at a sports event or a public event that involves nudity. I am sure, Mr Speaker, that you are so busy in the House that you may not have noticed that there are sometimes naked bike rides around Parliament Square. There is a big difference between what we are discussing and someone choosing to get on a bicycle naked in Parliament Square—I do not think anybody would say that there is a reasonable expectation of privacy in those circumstances.

The reasonable expectation of privacy is used to define a “private act” under section 67 of the Sexual Offences Act 2003. It states that a person commits an offence of voyeurism if

“(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and

(b) he knows that the other person does not consent to being observed for his sexual gratification.”

The Act goes on to state that:

“For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy”.

Those words are important in this context. It goes on to say

“and—

(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

(c) the person is doing a sexual act that is not of a kind ordinarily done in public.”

The Crown Prosecution Service appears to have dismissed Emily’s complaint about the video as the circumstances were such that there was no reasonable expectation of privacy. Even if she had been in the room consensually with another person, there is not a reasonable expectation that the other person would not “observe” her sleeping naked in bed. However, the law does not appear to recognise the difference between “observing” and, crucially, recording for posterity, regardless of intent to distribute or publish. Had the image been published or distributed, we would have been having a different debate today.

The 2003 law appears to address a “peeping Tom” scenario—that is, someone secretly viewing or observing a private act. The issue I am raising today is the situation of someone being photographed or filmed without consent when doing a private act—surreptitious filming of a private act—when they would reasonably expect not to be filmed without giving their consent. That is what happened to my constituent.

I should also make a very clear divide between this issue and revenge porn. If things are published or distributed, that is a very different area. That is not what I am talking about today, although it is of course a very serious issue.

I am also grateful to the hon. Member for Shipley (Philip Davies), who has also been pursuing this matter. A response to him from the CPS gives me some hope, and I hope that the Minister will take heed of these words. It states that

“the conclusion could be reached that there is a reasonable expectation of privacy in respect of being filmed naked whilst asleep. However, the law is far from settled but this is certainly an argument which could be reasonably advanced.”

It is often the case that when there is more than one lawyer, there is more than one opinion, and I suspect that Government lawyers have come down on one side at the moment but will, I hope, take those words away and consider them.

If we asked most people whether they would be happy to be filmed or photographed doing a private act without having consented, by any other person—a partner, a spouse or a stranger—despite that other person having been present in the room, most would say no. I am not just assuming that. An opinion survey helpfully carried out by Opinium found that three in four—76%—of UK adults think that it is currently illegal in the UK to video without their consent someone over 18 who is naked. That is the general expectation of the public, and is way out when it comes to the law. Four in five UK adults would support a change in the law so that videoing someone over 18 who is naked, without their consent, becomes illegal in all circumstances. Of course, that latter point is from an answer to an opinion survey, and I recognise that for the Government to legislate they would have to consider carefully whether they wanted to cover all circumstances and how it would be defined, but the Government are here to legislate. They have drafters. They could work through how this could be delivered.

To highlight the distress, when I was researching this matter in preparation for today, I came across a debate on a Mumsnet forum from 2013—this is not new, sadly. This demonstrates the hurt and damage that this does. The person writing was a married woman checking emails on her husband’s phone, and she writes that

“something made me look at his photos. I found some taken of me, asleep on the sofa, photos of my cleavage. There was also video footage of me getting undressed in the bedroom the night before. Disgusted, I challenged him that night…We had a big row, he promised the photos were not posted on the Internet, and that he didn’t know why he’d done it.”

She goes on

“fast forwarded to now and I’ve just found some photos of me taken on our recent holiday, me asleep on the sunbed, photos of my bottom, and my breasts. I feel sick. I can’t trust him anymore”.

That underlines the human hurt in a situation such as this.

If we look at the criteria under which the media have to operate, we can see that although the use of photography in the press is self-regulatory, the editors’ code of practice for the Independent Press Standards Organisation states:

“It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy”.

Many Members of this House are very well aware of that. However, nowadays everyone is a photojournalist in respect of their own, and others’, life story. Many young people, in particular, record their lives online and it is time for better regulation in this area.

Since I wrote to the Government, there has been some progress. The Secretary of State for Justice said yesterday that he is reviewing the law to make sure that it is fit for purpose in relation to upskirting. He has indicated that he is looking at the matter, and I urge the Minister, who I know is a very reasonable and thoughtful woman, to take away what I have said, talk to the Ministry of Justice, because I recognise that this issue falls between the two Departments, and urge the Secretary of State to consider taking forward this issue in the review of upskirting and in the review of the use of digital photography. There are many victims out there who have not come forward, but even if there is only one, it is one too many to have this distress. It is time for the Government seriously to consider proper legislation.