Data (Use and Access) Bill [HL]

Lord Markham Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[Baroness Cash (Con)]

My Lords, first, I declare my interest as a commissioner at the EHRC, and I have also been a lifelong campaigner for and defender of free speech, so I do not approach this subject lightly at all. I have some sympathy with the Government’s position that a reasonable excuse is required to be compatible with Article 10. However, I think the definition being as broad as it is reinforces the worries of my noble friend Lady Owen and the noble Baroness, Lady Chakrabarti.

I was not really clear, and am concerned to know, as noble colleagues have already alluded to, on why the defence is drafted so widely. I was not sure whether this was coming from EU law and, if that were the case, I wanted to draw the House’s attention to the most recent EU directive on preventing violence against women and girls. If we look at that directive, in section 19, it has unequivocally decided that deepfakes should be criminalised and:

“Such production, manipulation or altering should include the fabrication of ‘deepfakes’, where the material appreciably resembles an existing person, objects, places”


and so on. I appreciate, of course, that we are no longer bound by EU law, but given that it will be applied by the ECHR, under which we still operate, it is interesting to note that in section 20 it has acknowledged the Article 10 obligation but has narrowly defined it.

I draw attention to this and ask the Government to take it into account and reassure this House that they will urge guidance to be issued, if this defence has to go forward as it is currently drafted, so that any reasonable excuse defence maintained in this clause is clearly confined by guidance issued as soon as possible by the CPS.

[Lord Markham (Con)]

My Lords, I rise to speak to the Motion standing in the name of my noble friend Lady Owen of Alderley Edge. Her amendments fall into two categories, and we support her in all of them. I start by joining the noble Baroness, Lady Chakrabarti, and others in paying tribute to her tenacity in pursuing this issue by standing up for women who should not have to live in the fear of becoming victims of sexually explicitly deepfakes. As mentioned, she has won the deep respect of this House and, at the same time won many, many friends from her action. The cross-party support that she has managed to gain from this shows this House at its best—a House of which I am proud to be a Member.

First, my noble friend has tabled reviews to ensure that the offence that is being created as a result of her tireless campaigning is effective. We support her in her Motion and agree with her that we must do everything we can to ensure that the law is robust and effective in protecting women. Secondly, like many others, I have been puzzled by the ECHR reasonable excuse approach being used by the Government. It was very helpful, as ever, to have experts on hand in this matter and my noble friend Lady Cash to bring her expertise and agree with the basic position that, while we understand it, it is very widely drawn as it is currently set up.

I think it is very sensible what my noble friend is trying to do in seeking to tighten those definitions of reasonable excuse and remove reasonable excuse in the case of requesting sexually explicit deepfakes in her Motion 55A and Amendment 56A. I completely understand why she has brought them, and, while they would appear to be instead of the reviews, which we also support, we feel that my noble friend is right to challenge the inclusion of reasonable excuse as a defence to these offences. On that, she has our complete support.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I have listened carefully to the arguments, particularly those in favour of the noble Baroness’s Amendment 55, the creating offence, which seeks to replace the “reasonable excuse” defence with the creating offence, with a targeted defence for red-team software testing and reasonable political satire. We share the noble Baroness’s desire to ensure that any defence to the creating offence functions tightly and share her belief that only in narrow and limited circumstances would a person have a reasonable excuse for the creation of such images without consent. That is how our reasonable excuse defence will apply in practice, which is why the Government believe that the defence is the right way forward.

However, we are unable to agree to these targeted defences that the noble Baroness proposes to the creating offence in place of a reasonable excuse defence. This is a novel offence, tackling behaviour that is changing rapidly along with the technology itself. We cannot anticipate all the ways in which people will use technology as it develops. A defence of reasonable excuse which, as I have said, we believe will be interpreted very carefully by the courts, will ensure that the offence can be used effectively to target culpable perpetrators, even as technology and its uses change. The targeted defences proposed by the noble Baroness would also, crucially, not eliminate the risk of successful legal challenge, which I explained in my opening speech. Even with such targeted defences, the creating offence risks successful challenge in the courts, leading to uncertainty and reduced protection for victims.

I turn briefly to Amendment 56A on the requesting offence. As I have set out, the reasonable excuse defence to the requesting offence will only apply in an extremely narrow set of circumstances, such as covert law enforcement operations. The legal issue which applies to the creating offence does not apply to the requesting offence. However, we always aim for consistency and parity across similar offences and so urge this House not to pass Amendment 56A to the requesting offence. Also, without the defence that the Commons included for the requesting offence, law enforcement and intelligence officials may be unable to effectively carry out their functions.

We made a manifesto commitment to ban the creation of sexually explicit deepfakes. This legislation, as amended in the Commons, does just that. For the first time, there will be protection for victims and punishment for the perpetrators who create, or ask other people to create, intimate deepfakes of adults without consent or a reasonable belief of consent. These provisions represent an important and necessary response to intimate image deepfakes. The Government are clear that these offenses are comprehensive and robust. While a defence of reasonable excuse to both offences is necessary, it does not provide a get-out clause for the many perpetrators creating intimate deepfakes, especially sexual deepfakes, without consent. We remain firmly of a view that this is the most effective way to protect victims from this appalling abuse. It is our duty to act decisively. For those reasons, I urge your Lordships to support, with confidence, Motion 55C, containing as amendments in lieu Amendments 55D and 55E, and Amendment 56B. I urge the noble Baroness, Lady Owen, to withdraw her Motion 55A and Amendment 56A.

The noble Baroness asked about deprivation orders. We share her frustration with this. The ability for courts to apply deprivation orders has been in place but these have not been used as extensively as they could be, so the judges are looking at sentencing guidelines to see how that lack of implementation of deprivation orders can be remedied. My noble friend Lady Chakrabarti asked whether offenders of the requesting offence would also be deprived of images by the court. Yes, they would be. We want to ensure parity across the creating and the requesting offence, so that includes their computers and any images that are stored anywhere.

A number of noble Lords have expressed scepticism about whether the courts would adequately apply the reasonable excuse defence, which really is the nub of the issue which we are debating now. I have had this discussion many times with the noble Baroness, Lady Owen, in private. I must say, as a magistrate for nearly 20 years, that we often hear completely ridiculous defences. It is certainly not unusual in magistrates’ court—or, I am sure, in Crown Court—and magistrates and judges are well able to deal with those types of defences. I know that the noble Baroness is sceptical of that, which is one of the prime reasons why we have put the review in the Bill. She will know it is very unusual for Governments to commit in a Bill to have a review, but it is because we understand that this is a new area of law and that the way we are defining “reasonable excuse” is a politically contentious area. I urge her to continue to work with us, which I am sure she will do in any event, and I urge her not to move her amendments to a vote. I beg to move.