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

Lord Clement-Jones Excerpts

2nd reading
Friday 13th December 2024 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I congratulate the noble Baroness, Lady Owen, on bringing this important Bill forward and on her totally persuasive introduction. In the words of the noble Baroness, Lady Kidron, she made an “unimpeachable” case. We have heard some very powerful speeches today and not a dissenting voice. I hope that the Minister takes note of that.

It was particularly interesting to hear from my noble friend Lady Grender that it can be done. She campaigned to make revenge porn a criminal offence and she emphasised the importance not only of getting it through but of the enforcement process afterwards. I also totally agreed with the noble Baroness, Lady Morgan, that, when you pass legislation, you have to make sure that it absolutely fulfils its intent. Many of us are very unhappy about the way that the categorisation process is being carried out at the moment with the Online Safety Act.

The noble Lord, Lord Stevenson, reminded us that we have some form in campaigning on these issues in this House. There is now a formidable supporters’ club for this Bill, honed through quite a few years’ experience. Again, I hope that the Minister takes note of that.

An extraordinary one in 14 adults have experienced threats to share intimate images in England and Wales, rising to one in seven among young women. We need to ensure effective prevention of image-based abuse, while supporting the victims. It would take too long to read out the names of all the noble Baronesses and noble Lords who have described in some detail the impact on the victims.

As technology develops, so does the risk, not only to high-profile figures in public life—I pay tribute to the resilience of the noble Baroness, Lady Owen, in that respect, as did the noble Lord, Lord Knight, and the noble Baroness, Lady Foster—but to people going about their daily lives as well.

There is a clear link between gender-based violence and image-based abuse. The Government pledged to halve violence against women and girls, explore how future legislation can safeguard victims, improve prosecutions and deter potential perpetrators from committing image-based abuse crimes. I would have thought that that very much covers what we are talking about today. Sharing intimate images without consent has, I grant you, been designated a “priority offence” under the Online Safety Act, but the Government need to go further, as the noble Baroness, Lady Owen, and every other speaker in this debate, has urged.

As we have heard, current UK law clearly does not effectively address non-consensual intimate image creation. Although it is currently illegal to share or threaten to share non-consensual intimate images, including deepfakes, creating them is not yet illegal. This means that someone could create a deepfake image of another person without their consent and not face legal consequences, so long as they do not share or threaten to share it.

The Online Safety Act added new offences to the Sexual Offences Act 2003, making it illegal to share or threaten to share intimate images. However, the Law Commission, which advises the UK Government on legal reform, believed that there was not enough evidence of harm to criminalise creating deepfakes if they were not shared, which many of us think was too timid. We have heard quite the contrary today. The very welcome Bill brought forward by the noble Baroness, Lady Owen, fills that gap in the law by criminalising the creation of non-consensual intimate images, including deepfakes.

It is welcome that the Bill does not require intention. As the noble Baroness, Lady Kidron, said, requiring intention would make it virtually unenforceable. The use of the term “strict liability” by the noble Baroness, Lady Foster, was absolutely correct.

The Bill specifically, and rightly, targets deepfakes due to their rising prevalence, as we have heard, and their potential for harm, particularly towards women. I agree with the noble Lord, Lord St John, that none of us anticipated the power of AI when we looked at it back in 2017 and 2018. We have heard some of the figures. An Internet Matters study in 2023 revealed that 13% of teenage children in the UK aged 13 to 17 have encountered a nude deepfake image, equating to over 500,000 young people. Security Hero research showed that 98% of deepfake videos online were pornographic, with 99% of those featuring women and girls, making it a problem that is, to quote the noble Baroness, Lady Owen, “inherently sexist” and

“the new frontier of violence against women”.

I entirely agree with the noble Lord, Lord Russell, that this is a problem created by men.

The ease with which these videos can be created using readily available apps and online platforms further exacerbates the issue. In a welcome way, the Bill expands the definition of taking an image to encompass digital creation. This explicitly includes the creation of deepfakes under the umbrella of illegal activities relating to intimate images. It also rightly criminalises, as we have heard, soliciting the creation of non-consensual intimate images, including deepfakes.

I hope the Government, in considering their position, acknowledge the severe impact that intimate image deepfakes can have on victims, even if the images are not shared, and that the psychological distress, violation of privacy and potential for reputational damage caused by deepfakes will be taken into consideration. I very much hope that, despite signs to the contrary so far, they will adopt the Bill and redeem their manifesto pledge to ban the creation of sexually explicit deepfakes.

There have been a number of takeaways from almost every speaker. The right reverend Prelate and the noble Baroness, Lady Donaghy, urged speed. The noble Baroness, Lady Smith, asked who we would be protecting in not passing this Bill. The noble Lord, Lord Russell, said that if South Korea can do it, so can we. The noble Lord, Lord Browne, noted that this tool is available now and the noble Baroness, Lady Penn, said that the Government should use Private Members’ Bills and the tool provided by this Bill. The noble Lord, Lord Bethell, said that this will become a bigger issue if we do not act now and my noble friend Lady Featherstone that women cannot wait. I very much hope the Minister is mindful of that.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, the whole purpose of the discussion today has been, to use the words of the noble Baroness, Lady Foster, that there should be strict liability and not intent. Surely we are not talking about mens rea in this at all.

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely heard what the noble Baroness said about strict liability offences. The Government’s position is as I just said. However, I listened very carefully to what the noble Baroness said.

Property (Digital Assets etc) Bill

Lord Clement-Jones Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I remind the Committee of my interests in the register. I add my thanks to the Minister for his clear introduction. I am an admirer of the work of the Law Commission, so it is intriguing to be debating the merits of this one-clause Bill with such a distinguished group of digital aficionados. Despite the brevity of the Bill, as the Minister has described, it has seen quite a careful run-up through consultation, response, report and draft Bill to help inform us. We have heard some great speeches today explaining why digital assets are important because of their impact, both negative and positive, on society and the economy.

The Law Commission has essentially recommended that we legislate to confirm that the outcome of the 1885 case Colonial Bank v Whinney, which decided that all personal things are either in possession or in action, is clearly superseded. Effectively, we are confirming that the common law of England and Wales has, over the last 10 years, clearly moved towards explicit recognition of a third category of things to which personal property rights can relate. In the words of the Law Commission, the courts have recognised that those things are

“capable of being objects of personal property rights at law”.

It was interesting to be reminded, while preparing for this debate, of the traditional forms of personal property. In the dim and distant past, I remember my supervising partner when I was an articled clerk—in the quill pen era—being very surprised when I had no idea how to draft an assignment of a chose in action. Actually, I had no idea what a chose in action was, despite two years of law at university. Anyway, young lawyers will now have to learn how to assign a digital asset as well.

The Electronic Trade Documents Act, mentioned by the noble Lord, Lord Holmes—it is also good to see the noble and learned Lord, Lord Thomas of Cwmgiedd—and which I was pleased to help on its way recently, was an exception in that it provided that electronic, or digital, trade documents could be treated as things in possession. Sadly, the Centre for Digital Trade and Innovation, soon to become an international centre, recently said that, while there are some signs of adoption, particularly among large commodity traders using e-bills of lading, the dial has yet to move on more general usage of the Act to make international trade faster, cheaper and simpler—as suggested in the impact assessment—especially for the SME sector. So, sadly, not all Law Commission efforts bear fruit quickly.

However, as the Law Commission discusses in its consultation paper, it did not think that the arguments for using possession as the operative concept for electronic trade documents were as persuasive in respect of other forms of digital asset. It concluded that

“it is not necessary or appropriate for legislation to define the boundaries of such a third category”.

We are essentially being asked to take an act of faith in the adaptability of the common law and to accept that

“the common law remains best placed to describe the parameters of third category things that are capable of being objects of personal property rights”.

This is in line with the first two of the principles that the Law Commission has explicitly and rightly adopted. The first is:

“Championing and supporting the inherent flexibility of the common law and making clear that, in general, it is sufficiently flexible, and already able, to accommodate digital assets”.


The second is:

“Statutory reform only to confirm the existing common law position or where the common law cannot develop the legal certainty the market requires”.


So we see reflected in this short Bill the Law Commission’s recommended legislation confirming the simple proposition that the fact that a thing is neither a thing in possession nor a thing in action does not prevent it being a thing to which personal property rights can relate. As we have heard today from a number of noble Lords—including the noble Lords, Lord Vaizey and Lord Holmes, and the noble Viscount, Lord Stansgate—this is designed to cover crypto tokens, such as bitcoin, ether and stablecoins, NFTs and carbon credits, which may not have rights or claims attached to them so they may not qualify as things in action.

Some lawyers say that there is already a high degree of legal certainty and that there exist certain types of intangible property that are already recognised by the law of England and Wales. In essence, the Law Commission says that the recommendation for statutory intervention seeks merely to confirm and support what it considers the existing position in law. It goes further in its belief that the common law can do the necessary job in further defining digital assets, saying that

“it is not necessary, appropriate or helpful for the law of England and Wales to adopt statutory definitions of digital things for the purposes of answering the question as to whether such things are capable of being objects of personal property rights”.

It continues:

“We think that this logic applies equally to defining hard boundaries of a category of thing to which personal property rights can relate, distinct from things in possession and things in action”.


So, broadly speaking, the Law Commission leaves detailed implications to be fleshed out through future judicial decisions and ongoing common-law development, perhaps with the expert panel.

This includes the important aspect of remedies. The commission concludes that

“the vitiating factors of mistake, misrepresentation, duress and undue influence apply similarly to contracts involving third category things as they do to contracts involving things in possession and things in action”.

We are taking quite a lot on faith here. However, when it comes to certain other aspects, such as the entry into operation and enforcement of collateral arrangements for crypto tokens and crypto assets, the Law Commission concludes that

“it is not possible for the common law alone to develop a legal framework”

and that

“such a regime would be beneficial for the law of England and Wales and would provide market participants with important legal tools that do not exist today”.

Some questions arise. What next steps are proposed for this? Is this another case for the expert panel to look at? Is the common law adequate to deal with transfers and intermediate holding arrangements?

There are a number of additional questions, to which I hope we will get the answers in the course of our Committee proceedings when we take evidence. For instance, the report touches on general consequences, such as clearer rules for inheritance, bankruptcy and insolvency proceedings. The noble Lord, Lord Meston, touched on the vexed issue of digital assets in wills, while the noble Viscount, Lord Stansgate, mentioned it in the context of divorce—happy days. What are the potential legal consequences of the Bill’s approach for the parties involved in digital asset transactions? How will this impact issues such as ownership disputes, inheritance, bankruptcy and insolvency?

The Bill leaves detailed implications to be fleshed out through future judicial decisions and ongoing common-law development. The report clearly states that the courts will play a critical role in shaping the contours of this new category. Are they fully equipped to do so? Is that the best way forward, rather than providing more granular definitions in the Bill itself? Is there any transition of existing digital assets required from their current legal status to their status as a result of the Bill? What are the potential risks or unintended consequences of the proposed legislation? Will the explicit recognition of digital assets as personal property have an impact on the financial, technological and legal sectors? How do stakeholders from those sectors view the proposed Bill?

While the Law Commission in its reports acknowledges the possibility of unintended consequences, it argues that the flexibility of the common law approach will allow for adjustments and refinements as necessary, rather than detailing specific risks, and I am certain that the Committee will want to explore that approach.

Finally, I have two questions that the Minister may be able to answer today. The report discusses potential impacts, such as increased legal certainty and more straightforward asset management, but it does not provide an in-depth analysis of sector-specific impacts. Do the Government propose to produce an assessment of the impact that the recognition of digital assets as personal property will have on various sectors, or do they believe that because of the confirmatory nature of the Bill, that is already baked in?

Then, on a matter that a number of other noble Lords raised today—the noble and learned Lord, Lord Thomas, and the noble Lords, Lord Vaizey and Lord Holmes—there is the whole question of how the proposed legislation aligns with existing international models. We heard mention of MiCA in the EU, while Dubai has digital asset legislation and a regulator, VARA, and the US will probably become more bullish about crypto assets under its new Administration. The noble and learned Lord, Lord Thomas, was also very clear about the importance of the competitive aspect in terms of choice of jurisdiction. This question remains largely unanswered in the report, with the Law Commission not detailing how the Bill will align with international legal frameworks or affect international transactions. What are the potential risks or unintended consequences of any of the proposed legislation in this respect?

Other questions were rightly raised about the future regulation of crypto assets and cryptocurrencies. On whether we are going as far as we should in this respect, the noble Lord, Lord Vaizey, and the noble Baroness, Lady Bennett, are pretty much on opposite sides of the equation. The noble Lord, Lord Meston, rightly made the point that the criminal law is ahead of the civil law—I see we are debating a statutory instrument on this subject on Monday. It may be beyond the Minister’s brief to be talking about the digital Michael Parkinson, but perhaps he could shine some light and give us a glimpse of the regulatory future as regards some of these digital assets.

There are many unanswered questions. I look forward to Committee, when I hope that we will get some more answers.