Data (Use and Access) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Report stage
Tuesday 28th January 2025 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

56A: After Clause 132, insert the following new Clause—
“Creating purported sexual image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66A insert—“66AA Creating purported sexual image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the creation of the purported sexual image.(2) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the creation of the purported sexual image, and(d) A does not reasonably believe that B consents.(3) “Purported sexual image” of a person means an image which—(a) appears to be or include a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show—(i) the person participating or engaging in a sexual act which is not of a kind ordinarily done in public,(ii) the person doing a sexual thing which is not of a kind ordinarily done in public,(iii) all or part of the person’s exposed genitals or anus, or (iv) all or part of the person’s exposed breasts, except where what appears to be shown is something of a kind ordinarily seen in public.(4) In this section, a reference to creating a purported sexual image of a person does not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, and(b) does not appear to show something within subsection (3)(c)(i) to (iv) which, or a person who, is not shown in the photograph or film.(5) A person who commits an offence under this section is liable on summary conviction to a fine.66AB Creating purported sexual image of adult: definitions etc(1) This section applies for the purposes of section 66AA.(2) “Consent” to the creation of a purported sexual image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(5) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or(b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).(6) An act or thing is “sexual” if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66AA and 66AB)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported sexual images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66AA(1) or (2) of the Sexual Offences Act 2003 (creating purported sexual image of adult).66AA(1)(2) The purported sexual image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member's explanatory statement
This clause creates offences of creating a purported sexual image of an adult and provides that deprivation orders can be made under the Sentencing Code in connection with the offences.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, as will become clear, although I am moving Amendment 56A, it is not the Government’s intention to insert these provisions into the Bill.

This is an issue on which there has been great and very important debate. I start by thanking the noble Lady Baroness, Lady Owen of Alderley Edge, for her tireless campaigning on this matter. This is a crucial area of law to get right, and the noble Baroness has rightly kept it at the top of the agenda in your Lordships’ House, arguing passionately on behalf of victims of this appalling form of abuse. I also thank other signatories to amendments in this group: the noble Baronesses, Lady Kidron and Lady Gohir, my noble friend Lord Browne of Ladyton and the noble Lord, Lord Clement-Jones. We have valued the engagement that has taken place. It is because we have been listening very carefully to the points made by these noble Lords and, indeed, many others, that we are able to confirm that the Government will be making good on their manifesto commitment to criminalise those who create a sexually explicit deepfake of an adult without their consent.

Noble Lords will know that the Government had intended to legislate in this area in the upcoming crime and policing Bill. However, following consultation with stakeholders and colleagues across your Lordships’ House, we have not only decided to use this Bill to criminalise the creation of sexually explicit deepfakes but will bring new amendments forward for Third Reading. Our proposed new amendments will take a similar approach to that of the noble Baroness, Lady Owen, on many key issues of concern raised in your Lordships’ House, while ensuring that they will work effectively within existing legal frameworks. Our new amendments will make it an offence to intentionally create an intimate image of a person without their consent or reasonable belief in their consent. There will be no additional intent element to our offence.

We have listened carefully in engaging with noble Lords across the House and considered additional evidence, and we agree that this consent-based approach is the right one to protect victims from abuse. The harm to victims of this behaviour cannot be underestimated. A consent-based offence sends a clear message that we want to stamp out the inexcusable creation of intimate deepfakes at its root.

We have also heard the concerns about what types of images it will be criminal to create. If the noble Baroness works with us, our proposed government amendment will define which images are captured by reference to Sections 66D(5) to (9) in the wider intimate image abuse framework, and will therefore cover the creation of the same types of images as covered by the sharing and proposed taking intimate images offence. This means that it will be a criminal offence to create, take or share an image that shows or appears to show someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear. It will mean that criminals cannot escape justice by altering images so that intimate parts of the body appear to be covered with emoji symbols or pictures. We are clear that this behaviour is unacceptable and should be criminal.

We are aware of concerns about overcriminalisation, particularly in relation to children, so that they are not unnecessarily brought into the criminal justice system. That is why we will be working closely with the Department for Education to tackle misogyny at every level. This will be critical to achieving our commitment to halve violence against women and girls, for which we will pull every lever to shift behaviour towards women.

We will also be including in our amendment a defence of reasonable excuse. The government amendment will be tech neutral, meaning that it is future-proofed if there are new ways to create hyperrealistic, sexually explicit likenesses in the future.

The Government have also heard, and agree with, the aim of the noble Baroness’s amendment to criminalise asking someone to commit the offence for you, regardless of where they are located and whether the image is then created. Existing law means that, once the creation of a sexually explicit deepfake without consent is an offence, it will automatically be an offence to encourage or assist someone to commit this offence in England and Wales under the Serious Crime Act 2007.

These inchoate offences apply to almost all criminal offences, but we share Peers’ concern about the need to ensure that this can apply if the request is made of any creator anywhere in the world. We are carefully considering how best to give effect to that, but bespoke “encouraging” offences are very rare and there is a serious risk of unintended consequences for wider areas of the criminal law. I want to be clear that we will be ensuring that the criminal law covers this behaviour. We will be developing provisions at pace, and want to work with the noble Baroness and her co-sponsors as we do that.

I cannot commit to the final proposals being brought forward at Third Reading. However, I will provide an update at Third Reading on when and how we expect to bring these specific measures forward. If they are inserted into the Bill in the House of Commons, they will of course return to this House for further consideration. The new government amendments will effectively protect victims and bring offenders to justice. Together with existing law and our new taking and installing offences in the Crime and Policing Bill, we will have a holistic package of offences to address intimate image abuse.

--- 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.

[Lord Stevenson of Balmacara (Lab)]

Before the Minister sits down, that was exactly the point I was trying to make, and I am very grateful to the noble Lord, Lord Pannick, for raising it again. It does need the Minister to say to the clerk that it is possible for the noble Baroness, Lady Owen, to bring an amendment, if necessary, at Third Reading. If the Minister could repeat that at the Dispatch Box, I think we would both be happy.

[Lord Ponsonby of Shulbrede (Lab)]

Yes. If the noble Baroness wants to bring back a similar amendment on this issue, that indeed can be debated at Third Reading.

[Baroness Owen of Alderley Edge (Con)]

Before the noble Lord sits down, may I get his assurance that deletion will include cloud-based systems and physical copies? He mentioned hardware, but I would like the assurance on the additional physical copies, those held on any device, cloud-based system, digital, messaging or social media platform that a person controls, because you can post something to a personal account without actually having shared it with other people. I would like clarification around that.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

That is certainly the intention of the legislation, but I am aware that it is extremely complex.

[Baroness Owen of Alderley Edge (Con)]

Before the noble Lord sits down again—forgive me—I am concerned about women being inadvertently timed out by the six-month limitation. Could the noble Lord address this point with a little more clarity please?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I understand the point the noble Baroness makes. but that is also something which we are willing to look at. The noble Baroness’s amendment was on the point at which a woman knows that has been such an intimate image abuse. I would point out to her that there may be many cases where the woman never knows that there has been such a type of abuse. I am thinking of previous legislation on upskirting. There have been successful convictions of people for upskirting where the woman never knew she was a victim and the images were of no particular determinate time. I understand the point the noble Baroness is making and I agree in general terms, but there may be a way of addressing the point, capturing the wider point I am making of women who may not know they are victims.

I beg leave to withdraw Amendment 56A.

Amendment 56A withdrawn.