Online Safety Bill

Lord Allan of Hallam Excerpts

Report stage
Thursday 6th July 2023 Lords Chamber

That, in essence, is the long and the short of it. I look forward to the Government coming forward in short order with some positive proposals about what they want to do, and how they propose to do it, to protect this group of people who have had their lives and their businesses damaged and who will continue to be at risk until Parliament does something about it. I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I will speak to Amendment 5B in my name and that of my noble friend Lord Clement-Jones. I am reminded that this is a new stage of the Bill, so I should declare my interests. I have no current financial interests in the tech sector, but until 2019 I worked for one of the large technology companies that will be regulated, doing the kind of censorship job that the noble Lord, Lord Moylan, is concerned about. We clearly did not do it very well or we would not be here today replacing people like me with Ofcom.

Amendment 5B concerns an issue that we raised in Committee: the offence of encouragement of self-harm. That new offence was broadly welcomed, including on these Benches. We believe that there is scope, in some circumstances, to seek criminal prosecution of individuals who, online or otherwise, maliciously seek to encourage other people to harm themselves. The concern we raised in Committee, which we come back to today, is that we want the offence to be used in a way that we would all agree is sensible. We do not want people who are trying to help individuals at risk of self-harm to become concerned about and afraid of it, and to feel that they need to limit activities that would otherwise be positive and helpful.

In Committee we suggested that one way to do this would be to have a filter where the Director of Public Prosecutions looked at potential prosecutions under the new offence. We take a different approach with the amendment, which would in some senses be more effective, which is to explicitly list in the Bill the three categories of activity that would not render an individual liable to prosecution.

The first is people who provide an educational resource. We should be clear that some educational resources that are intended to help people recognise self-harm and turn away from it can contain quite explicit material. Those people are concerned that they might, in publishing that material with good intent, accidentally fall foul of the offence.

The second category is those who provide support—individuals providing peer support networks, such as an online forum where people discuss their experience of self-harm and seek to turn away from it. They should not be inadvertently caught up in the offence.

The third category is people posting information about their own experience of self-harm. Again, that could be people sharing quite graphic material about what they have been doing to themselves. I hope that there would be general agreement that we would not interpret, for example, a distressed teenager sharing material about their own self-harm, with the intent of seeking advice and support from others, as in some way encouraging or assisting others to commit self-harm themselves.

There is a genuine effort here to try to find a way through so that we can provide assurances to others. If the Minister cannot accept the amendment as it is, I hope he will reaffirm that the categories of people that I described are not the target of the offence and that he will be able to offer some kind of assurance as to how they can feel confident that they would not fall foul of prosecution.

Additionally, some of these groups feel with some conviction that their voices have not been as prominent in the debate as those of other organisations. The work they do is quite sensitive, and they are often quite small organisations. Between Report and the Bill becoming law, I hope that those who will be responsible for doing the detailed work around guidance on prosecutions will meet with those people on the front line—again, specificity is all—and that those who are trying to work out how to make this legislation work will meet with the people doing that work, running those fora and engaging with the young people who seek help around self-harm to look in detail at what they are doing. That would be extraordinarily helpful.

Those are my two asks. Ideally, the Government would accept the amendment that we have tabled, but if not I hope that they can give the assurance that the three groups I listed are not the target and that they will commit to having relevant officials meet with individuals working on the front line, so that we can make sure that we do not end up prosecuting individuals without intending to.

[Baroness Burt of Solihull (LD)]

My Lords, I support all the amendments in this group. However, what I have to say on my own amendments will take up enough time without straying on to the territory of others. I ask noble colleagues to please accept my support as read. I thank the Minister for meeting me and giving context and explanation regarding all the amendments standing in my name. I also welcome the government amendments on intimate image abuse in another group and on digitally altered images, which impinge directly on the cyberflashing amendments.

It is clear that the Government’s heart is in the right place, even if their acceptance of a consent-based law is not. I also thank the Law Commission for meeting me and explaining the thinking behind and practicalities of how the new law in relation to cyberflashing will work, and how the existing court system can help, such as juries deciding whether or not they believe the defendant. Last but definitely not least, I acknowledge the help that I have received from Professor Clare McGlynn, and Morgane Taylor from Bumble—both immensely knowledgeable and practical people who have inspired, informed and helped throughout.

I start with Amendments 5C and 7A in my name and that of the noble Baroness, Lady Finlay. I understand that the Government are following the advice of the Law Commission in refusing to accept consent-based defence, but I point out gently that this is something that the Government choose, and sometimes choose not, to do. Although the Law Commission consulted widely, that consultation did not show support for its proposals from victims and victims’ organisations. I am still of the view that a consent-based requirement would have prevented many unsolicited images being received by women and girls. I still worry that young girls may be socialised and sexualised by their peers who say that they are sending these images for a laugh. These girls do not have the maturity to say that they do not find it funny, but pretend it is okay while cringing with humiliation inside. Consent-based legislation would afford them the best protection and educate young girls and men that not only are women and girls frequently not interested in seeing a picture of a man’s willy, but girls think differently from boys about this. Who knew?

I also believe that a consent-based law would provide the most suitable foundation for education and prevention initiatives. However, I have listened to the Minister and the Law Commission. I have been told that, if it got to court, the complainant would not be humiliated all over again by having to give evidence in court and admit the distress and humiliation they felt. But according to the Minister, like the new intimate image amendment tabled by the Government themselves, it is up to the Crown Prosecution Service to follow it up and, after making their statement of complaint, my understanding is that the complainant does not have to take part further—more of that later. However, given the current success rate of only 4% of even charging alleged perpetrators in intimate image abuse cases, I worry that not only will victims continue to be reluctant to come forward but the chances of prosecution will be so slim that it will not act as a deterrent. We know from experience of sharing sexual images without consent, that the motivation thresholds have limited police investigations and prosecutions due to the evidential challenges. That is what the Law Commission has recommended as regards the introduction of a consent-based image offence.

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[Baroness Kidron (CB)]

My comments will be rather shorter. I want to make a detailed comment about Amendment 5B, which I strongly support and which is in the name of the noble Lord, Lord Allan. It refers to,

“a genuine medical, scientific or educational purpose, … the purposes of peer support”

I would urge him to put “genuine peer support”. That is very important because there is a lot of dog whistling that goes on in this area. So if the noble Lord—

[Lord Allan of Hallam (LD)]

My working assumption would be that that would be contestable. If somebody claimed the peer support defence and it was not genuine, that would lead to them becoming liable. So I entirely agree with the noble Baroness. It is a very helpful suggestion.

[Baroness Kidron (CB)]

I also want to support the noble Baroness, Lady Kennedy. The level of abuse to women online and the gendered nature of it has been minimised; the perpetrators have clearly felt immune to the consequences of law enforcement. What worries me a little in this discussion is the idea or conflation that anything said to a woman is an act of violence. I believe that the noble Baroness was being very specific about the sorts of language that could be caught under her suggestions. I understand from what she said that she has been having conversations with the Minister. I very much hope that something is done in this area, and that it is explored more fully, as the noble Baroness, Lady Morgan, said, in the guidance. However, I just want to make the point that online abuse is also gamified: people make arrangements to abuse people in groups in particular ways that are not direct. If they threaten violence, that is quite different to a pile-in saying that you are a marvellous human being.

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We expect these tight parameters and the usual prosecutorial discretion to provide sufficient safeguards against inappropriate prosecutions. The defence of necessity may also serve to ensure that actions undertaken in extraordinary circumstances to mitigate more serious harm should not be criminal. The offence of encouraging or assisting suicide has not led to the prosecution of vulnerable people who talk about suicidal feelings online or those who offer them support, and there is no reason to suppose that this offence will criminalise those whom this amendment seeks to protect. However, the noble Lords raise an important issue and I assure them that we will keep the operation of the offence under review. The Government have committed to expanding it to cover all ways of encouraging or assisting self-harm so there will be an opportunity to revisit it in due course.

[Lord Allan of Hallam (LD)]

I appreciate the Minister’s response. Could he also respond to my suggestion that it would be helpful for some of the people working on the front line to meet officials to go through their concerns in more detail?

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to make that commitment. It would be useful to have their continued engagement, as we have had throughout the drafting of the Bill.

The noble Baroness, Lady Burt of Solihull, has tabled a number of amendments related to the new offence of cyberflashing. I will start with her Amendment 6. We believe that this amendment reduces the threshold of the new offence to too great an extent. It could, for example, criminalise a person sending a picture of naked performance art to a group of people, where one person might be alarmed by the image but the sender sends it anyway because he or she believes that it would be well received. That may be incorrect, unwise and insensitive, but we do not think it should carry the risk of being convicted of a serious sexual offence.

Crucially, the noble Baroness’s amendment requires that the harm against the victim be proven in court. Not only does this add an extra step for the prosecution to prove in order for the perpetrator to be convicted, it creates an undue burden on the victim, who would be cross-examined about his or her—usually her—experience of harm. For example, she might have to explain why she felt humiliated; this in itself could be retraumatising and humiliating for the victim. By contrast, Clause 170 as drafted means that the prosecution has only to prove and focus on the perpetrator’s intent.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful for the opportunity to continue some of the themes we touched on in the last group and the debate we have had throughout the passage of the Bill on the importance of tackling intimate image abuse. I shall introduce the government amendments in this group that will make a real difference to victims of this abhorrent behaviour.

Before starting, I take the opportunity again to thank the Law Commission for the work it has done in its review of the criminal law relating to the non-consensual taking, making and sharing of intimate images. I also thank my right honourable friend Dame Maria Miller, who has long campaigned for and championed the victims of online abuse. Her sterling efforts have contributed greatly to the Government’s approach and to the formulation of policy in this sensitive area, as well as to the reform of criminal law.

As we announced last November, we intend to bring forward a more expansive package of measures based on the Law Commission’s recommendations as soon as parliamentary time allows, but the Government agree with the need to take swift action. That is why we are bringing forward these amendments now, to deliver on the recommendations which fall within the scope of the Bill, thereby ensuring justice for victims sooner.

These amendments repeal the offence of disclosing private sexual photographs and films with intent to cause distress and replace it with four new sexual offences in the Sexual Offences Act 2003. The first is a base offence of sharing an intimate photograph or film without consent or reasonable belief in consent. This recognises that the sharing of such images, whatever the intent of the perpetrator, should be considered a criminal violation of the victim’s bodily autonomy.

The amendments create two more serious offences of sharing an intimate photograph or film without consent with intent to cause alarm, distress or humiliation, or for the purpose of obtaining sexual gratification. Offenders committing the latter offence may also be subject to notification requirements, commonly referred to as being on the sex-offenders register. The amendments create an offence of threatening to share an intimate image. These new sharing offences are based on the Law Commission’s recommended approach to the idea of intimate photographs or films to include images which show or appear to show a person nude or partially nude, or which depict sexual or toileting activity. This will protect more victims than the current Section 33 offence, which protects only images of a private and sexual nature.

Finally, these clauses will, for the first time, make it a criminal offence to share a manufactured or so-called deepfake image of another person without his or her consent. This form of intimate image abuse is becoming more prevalent, and we want to send a clear message that it will not be tolerated.

By virtue of placing these offences in the Sexual Offences Act 2003, we are extending to these offences also the current special measures, so that victims can benefit from them in court, and from anonymity provisions, which are so important when something so intimate has been shared without consent. This is only the first stage in our reform of the law in this area. We are committed to introducing additional changes, giving effect to further recommendations of the Law Commission’s report which are beyond the scope of the Bill, when parliamentary time allows.

I hope that noble Lords from across your Lordships’ House will agree that these amendments represent an important step forward in tackling intimate image abuse and protecting victims. I commend them to the House, and I beg to move.

[Lord Allan of Hallam (LD)]

My Lords, I welcome these new offences. From my professional experience, I know that what came to be known as “sextortion” created some of the most distressing cases you could experience, where an individual would obtain intimate images, often by deception, and then use them to make threats. This is where a social network is particularly challenging; it enables people to access a network of all the family and friends of an individual whose photo they now hold and to threaten to distribute it to their nearest and dearest. This affects men and women; many of the victims were men who were honey-potted into sharing intimate images and in the worst cases it led to suicide. It was not uncommon that people would feel that there was no way out; the threat was so severe that they would take their own lives. It is extremely welcome that we are doing something about it, and making it more obvious to anyone who is thinking about committing this kind of offence that they run the risk of criminal prosecution.

I have a few specific questions. The first is on the definitions in proposed new Section 66D, inserted by government Amendment 8, where the Government are trying to define what “intimate” or “nudity” represents. This takes me back again to my professional experience of going through slide decks and trying to decide what was on the right or wrong side of a nudity policy line. I will not go into the detail of everything it said, not least because I keep noticing younger people in the audience here, but I will leave you with the thought that you ended up looking at images that involved typically fishnets, in the case of women, and socks, in the case of men—I will leave the rest to your Lordships’ imaginations to determine at what point someone has gone from being clothed to nude. I can see in this amendment that the courts are going to have to deal with the same issues.

The serious point is that, where there is alignment between platform policies, definitions and what we do not want to be distributed, that is extremely helpful, because it then means that if someone does try to put an intimate image out across one of the major platforms, the platform does not have to ask whether there was consent. They can just say that it is in breach of their policy and take it down. It actually has quite a beneficial effect on slowing transmission.

The other point that comes out of that is that some of these questions of intimacy are quite culturally subjective. In some cultures, even a swimsuit photo could be used to cause humiliation and distress. I know this is extremely difficult; we do not want to be overly censorious but, at the same time, we do not want to leave people exposed to threats, and if you come from a culture where a swimsuit photo would be a threat, the definitions may not work for you. So I hope that, as we go through this, there will be a continued dialogue between experts in the platforms who have to deal with these questions and people working on the criminal offence side. To the extent that we can achieve it, there should be alignment and the message should go out that if you are thinking of distributing an image like this, you run the risk of being censored by the platforms but also of running into a criminal prosecution. That is on the mechanics of making it work.