Data (Use and Access) Bill [HL]

Lord Pannick Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

We know that the march of technology and the feeling of anonymity and impunity afforded by the internet have conspired to make this problem epidemic. The amendments that I have put my name to, as well as others in this group, engage this challenge. They are proportionate and they could not be more timely. Although it may not be today, I hope to see them pass, clear the remaining stages in the other place and arrive on the statute book as quickly as possible.

[Lord Pannick (CB)]

My Lords, I add my congratulations to the noble Baroness, Lady Owen, for her skill and persistence in persuading the Government to address this noxious practice, which is causing so many women so much distress and humiliation. It is outrageous that this is still not unlawful.

I very much welcome what the Minister said, and I will press him on four matters. I hope that I understood him correctly when he said that the criminal offence will include solicitation in this country of the creation of these images abroad. I see that he is nodding—I am grateful. This is vital for this provision because, unless the criminal offence in this country covers such matters, the mischief will continue, as the Minister recognises. I can see no difficulty in terms of constitutional theory or practice or international law, because there are many offences in the criminal calendar where what is criminalised is conduct in this country, even though part of the matter that causes concern occurs abroad. I am very grateful to the Minister.

Secondly—and I hope I understood the Minister correctly—he said that the Government’s amendments will contain no intent element other than intent to create the image. That is very important. If the prosecution has to establish some other intent, that will enable defendants to come up with all sorts of spurious explanations such as, “It was not my intent” and “I didn’t realise that it would have this effect”, which would frustrate the purpose. I think that is what the Minister said, and I would welcome confirmation on that important point.

I would also welcome confirmation on another point. Another “intent”—intent to cause alarm, distress or humiliation—is in his Amendment 56A, which I of course appreciate will not be pursued in due course. Does the Minister’s statement that no other intent than intent to create the image will be required also covers the other element, which is in Amendment 56A? That also requires the prosecution to prove, as an alternative, the purpose for which these images are created. It has to be proved under Amendment 56A that the purpose is to obtain sexual gratification. The defendant will inevitably say that it is not their purpose. Could the Minister confirm that that will not be replicated in the amendment that will eventually be brought forward? I see the Minister nodding, and I am grateful to him.

Thirdly, the Minister referred to what will be in the amendment that will eventually be brought forward. If I understood him correctly, there will be a defence of reasonable excuse. The Minister confirms that that is what he said. I have great difficulty in understanding in what circumstances a defendant could have a reasonable excuse for creating or soliciting a fake image of a sexual nature without either the consent of the victim or, at the very least, a reasonable belief by the defendant that the victim had consented. Can the Minister give us an example of where the image has been created or solicited and the defendant does not believe that the woman has consented, or does not have a reasonable belief that the woman has consented, but there is nevertheless a reasonable excuse for this conduct? I cannot think of one. I am not expecting an answer from the Minister today, but if his amendment contains the reasonable excuse defence, I for one will be pressing him on it.

Fourthly and finally, I understood the Minister to give a commitment, not that the amendment will be ready in time necessarily for Third Reading, but that it will be ready and introduced during the passage of this Bill through Parliament. My understanding is that there is no question of this being kicked into the long grass. We have a commitment that the Government will propose legislation in the course of parliamentary consideration of this Bill. If I am right on that—again, I saw the Minister nodding—I very much hope that the noble Baroness, Lady Owen, will not feel it necessary to press her amendment this evening. She has made enormous progress on this, which is much welcomed around the House. It would be much better, would it not, to preserve and reserve her position for Third Reading, if she needs to bring the matter back then?

[Baroness Kidron (CB)]

My Lords, it is such a pleasure briefly to follow my noble friend Lord Pannick; not for the first time I thought that, if I ever get in trouble, I know who I will go to.

I record my admiration for the noble Baroness, Lady Owen. She has fought a just and forensic fight and she has mastered the gift of the House of Lords very rapidly. I also thank the Minister, Sarah Sackman, for the meeting on this subject and for agreeing to look again and again at the issue of intent and consent, which is something that those of us who have been in the world of sexual offences really must insist on, so I was delighted to hear from the noble Baroness and the Minister that that is somewhat resolved.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, including the noble Baronesses, Lady Owen and Lady Gohir. The Government of course share the concerns that have been expressed by noble Lords across the House. That is why we committed in our manifesto to criminalising the creation of sexually explicit deepfakes, and why we have been listening carefully to the issues and evidence that noble Lords and campaign groups have put forward on the best way to achieve our shared target of deterring people from creating these images and delivering justice to victims where this deterrent does not work.

As I made clear in my opening speech, the Government will not press Amendments 56A, 74A and 77. Instead, as I have set out, we intend to bring forward new amendments at Third Reading based on Amendment 69 tabled by the noble Baroness, Lady Owen, and drawing on aspects of Amendment 70. These will incorporate and address the issues raised during this debate. The new amendments will criminalise the intentional creation of an intimate image deepfake without consent or a reasonable belief of consent. This will not require any additional motivation. They will use the same definition of an “intimate state” as in the sharing intimate images offence. They will amend the Sentencing Code to ensure that the courts can deprive offenders of the relevant images if convicted of this offence, as well as any hardware on which they are stored.

We have agreed that we want to make it criminal to ask someone to create a sexual deepfake on your behalf, regardless of where they are in the world and regardless of whether the image is created. I remind the House that the Government are making a firm commitment that this will be done quickly. However, this is a complex area of law and any responsible Government should want to ensure that criminal law will function as intended.

I repeat my earlier commitment to provide an update on the specific issue of solicitation at Third Reading. The Government have not only heard the case put forward by noble Lords; they are acting to respond to those concerns and deliver these important changes. We must do this in a way that works alongside existing offences and will be effective in securing convictions, to make sure that victims will be protected and perpetrators brought to justice. I hope that the noble Baroness will bear this in mind as she considers whether to work with the Government ahead of Third Reading or press her amendments later this evening.

I will pick up some of the points made by noble Lords, starting with one made by the noble Baroness, Lady Morgan. I agree wholeheartedly with her point that it does not matter where the good ideas come from; we need to work across this House to try to implement the measures that the noble Baroness, Lady Owen, has inspired this House to support, if I can put it like that.

The noble Baroness, Lady Gohir, asked about audio. I am advised that this is a very novel and difficult aspect of law. While I will do absolutely everything I can in my current role as a Minister to move this forward, I am not in a position to give a more fulsome commitment to the amendment she seeks at this stage. However, I absolutely undertake that we will pursue this matter.

As I said, we commit to addressing solicitation at Third Reading, but the amendments will come back at whatever necessary stage in the House of Commons—so within this Bill. Of course, if any amendment is made there, this House can consider the matter again.

In summary, I hear the concerns that have been raised in this debate and it is my intention to act on those concerns, as far as possible. I hope the noble Baroness will not feel it is necessary to press her amendment, but, whether she presses it or not, I look forward to working with her on these issues in the weeks to come.

[Lord Pannick (CB)]

I just ask the Minister, before he sits down, whether he will address the point that the noble Lord, Lord Stevenson, raised. The Minister said that he will address matters at Third Reading, but of course he can address matters only if an amendment is brought forward. Is he accepting, as I hope he is, that if the Government do not bring forward some form of amendment for debate purposes at Third Reading, it would be entirely appropriate, and the Government would support the idea, that the noble Baroness, Lady Owen, could bring forward her own amendment at Third Reading for the purposes of further of further debate? Is he accepting that?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the opening amendment in this group is a government amendment that we are withdrawing, so we are setting up the debate. There could be a similar mechanism at Third Reading. I do not know how it will actually be worked out, but there is an undertaking on behalf of the Government to say how far we have got on the solicitation issue, with a view to moving amendments in the other place.

Data (Use and Access) Bill [HL]

Lord Pannick Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

[Baroness Owen of Alderley Edge (Con)]

My Lords, I rise to speak to government Amendments 2, 8 and 9 and to my Amendments 3, 4, 5, 6, 7 and 10, which are tabled in my name and those of the noble Lords, Lord Pannick, Lord Browne of Ladyton and Lord Clement- Jones. In doing so, I declare my interest as a guest of Google at its Future Forum, an AI policy conference.

First, I thank the noble Lord, Lord Ponsonby, who has taken so much time in the past few weeks to meet me and discuss my concerns. I am very grateful for his patience and work in getting the new government amendment to a much stronger position than the original one. I am grateful for the undertaking to amend the time limit for prosecuting cases so that prosecution can take place even after six months have elapsed from the commission of an offence.

Amendments 3, 7 and 10 relate to my substantive amendment, Amendment 4, on soliciting sexually explicit content. I thank the Minister for his commitment to ensuring that solicitation will be included in the Bill when it reaches the Commons after scrutiny by parliamentary counsel. However, noble Lords will know that I have been urging the Government to tackle solicitation and that I am entirely inspired by the experience of Jodie, whom many noble Lords have met, and many women like her.

I echo the words of the noble Baroness, Lady Morgan, that my concern about solicitation is not new. In fact, I first flagged the issue to your Lordships’ House in July last year, so I cannot help but feel disappointed that, after all this time, the Government are still asking for longer. Solicitation is an integral part of the amendment, and I believe we cannot risk the amendment going to the Commons without its inclusion. I know so many of us, and the survivors watching, will feel far more reassured to send this Bill to the Commons with the wording clearly stating that the offence is committed irrespective of the location of the person or persons solicited, whether or not they are identified and whether or not the creation occurs.

I turn now to Amendment 5, which would remove reasonable excuse. This was an issue first highlighted to me by the noble Lord, Lord Pannick, on Report. The amendment speaks to our concern that reasonable excuse may be interpreted in a way that Parliament has not intended and may allow abusers to escape justice, leaving victims traumatised.

Finally, Amendment 6 gives judges the option of imprisonment as well as a fine. It is vital that the Government take a strong position in standing up to those who abuse women in this appalling way. I am sure that noble Lords will agree that there is no expectation that every perpetrator will end up in prison, but it is vital that the option is open to judges so that, in the most extreme of cases, there is a deterrent to show how seriously, as a society, we take this form of digital violence against women. Campaigners agree, saying that if you do not have prison, abusers will think they are untouchable. There is an attitude of being emboldened. Jodie and Sophie, both survivors, have independently described the Government's proposal of a fine as simply insulting. Jodie said:

“for the most serious cases of deepfake abuse, prison sentences must be an option for judges. The effect of this abuse is devastating, and the sentencing must reflect that”.

Sophie agreed that a fine would not have deterred her perpetrator and described the proposal as an insult to those whose lives are turned upside down.

My understanding is that the Government’s proposed non-consensual taking offence will rightly have the option of a prison sentence. I would be interested to know the Government’s reason for deeming that non-consensual taking can result in prison but non-consensual creation cannot. Internet Matters found that teenagers saw sexually explicit deepfakes as worse than real image-based abuse, for reasons such as lack of autonomy and awareness of the image, anonymity of the perpetrator and the ways in which the images may be manipulated to make the victim appear. I am sure that, like many young women, I am struggling to comprehend a legal system that offers a heavier punishment for fly-tipping than for the violation of my consent. How many more women must suffer before we finally treat VAWG offences on a par with other crimes?

I asked campaigners to share with me some of the language used to solicit this content when men posted clothed images with requests to put women in sexually explicit content. It gives an insight into the mind of the people who inflict this abuse on women. A milder one stated, “I want her done for two reasons. One, she is hot. Two, she has a huge ego and this will humble her”. Another said, “Do whatever you want to this woman. Degrade her”.

The vast majority of the language was far more extreme and left me feeling physically sick. I implore the Government to listen to the voices of survivors and to not close off the option of prison when prosecuting the people who inflict this appalling abuse, ripping away a woman’s consent to degrade her. I urge noble Lords across this House: think of the women in your lives—your daughters, granddaughters, nieces, wives. If someone had abused them in this appalling manner, would we still be saying that prison should not be an option?

For too long, women have had their pain minimised and their experiences belittled. We are at the precipice of a new age of extreme misogyny and I urge noble Lords to please strengthen the hands of the judges to tackle this abuse. I beg to move.

[Lord Pannick (CB)]

The skill and determination of the noble Baroness, Lady Owen, have persuaded the Government to address this important topic in the Bill. She has performed a great service to this House. I thank the Minister, most sincerely, and the Bill team for bringing forward their Amendment 2, and for the amount of time and trouble they have taken on this subject and their patience in discussions on this matter.

The Government have come a long way in their Amendment 2, but I agree with the noble Baroness, Lady Owen, that there are three improvements that this House can and should make to the Bill before it travels to the House of Commons. The first is to add an offence of soliciting a purported intimate image. That is the subject of Amendments 3 and 4 from the noble Baroness, Lady Owen. The people who create the purported intimate image are often outside the jurisdiction, so the law needs to penalise and deter those in this country who solicit such images from people abroad. There is no dispute from the Government. The Minister made it very clear on Report and again today that such solicitation should be an offence. The Government accept that it should be an offence whether the person solicited to create the image is here or abroad. The Government also accept that solicitation should be an offence whether or not the image is, in fact, created. All of that is agreed and Amendments 3 and 4 from the noble Baroness, Lady Owen, do the job.

The Government’s position, as the Minister has said, is that the solicitation offence will be added—he gave this commitment—in the House of Commons. I simply do not understand why a solicitation offence cannot be added in this House, to make it clear to the House of Commons that noble Lords believe that this is of fundamental importance.