Data (Use and Access) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Wednesday 5th February 2025 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

2: After Clause 139, insert the following new Clause—
“Creating purported intimate image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66D insert—“66E Creating purported intimate image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported intimate image of another person (B),(b) B does not consent to the creation of the purported intimate image, and(c) A does not reasonably believe that B consents.(2) “Purported intimate image” of a person means an image which—(a) appears to be, or to 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 the person in an intimate state.(3) Subsections (5) to (9) of section 66D (person in an intimate state) apply for the purposes of this section as if references in those subsections to a photograph or film were references to an image.(4) References in this section to creating a purported intimate image of a person do 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, but(b) does not appear to show—(i) something within section 66D(5)(a) to (e) (read with subsections (6) and (7) of that section) which is not shown in the photograph or film, or(ii) a person who is not shown in the photograph or film.(5) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for creating the purported intimate image.(6) A person who commits an offence under this section is liable on summary conviction to a fine.66F Creating purported intimate image of an adult: further definitions etc(1) This section applies for the purposes of section 66E.(2) “Consent” to the creation of a purported intimate 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) “Photograph” includes the negative as well as the positive version.(5) “Film” means a moving image.(6) 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.(7) 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).”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66E and 66F)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported intimate images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66E of the Sexual Offences Act 2003 (creating purported intimate image of adult).(2) The purported intimate 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 makes it an offence to create a purported intimate image of an adult without consent and provides that deprivation orders can be made under the Sentencing Code in connection with the offence.

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

My Lords, I am grateful for the opportunity to continue this debate on the intimate image deepfakes within the context of this legislation. We have heard the concerns raised by Members of this House and, as I committed to on Report, I am pleased to move a government amendment that will ensure that those who create an intimate deepfake of an adult without their consent, or a reasonable belief in their consent, are held accountable under the criminal law. This is an important step forward in itself, and one which shows how carefully the Government have listened. However, as I made clear last week, and as I will come on to, we will table further amendments as the Bill progresses through the House of Commons.

Before turning to the specifics of the amendment, I take this opportunity to express my sincere gratitude to the noble Baroness, Lady Owen of Alderley Edge. She has shown unwavering commitment to supporting the victims of online abuse, which has been invaluable. Her tireless efforts have significantly shaped policy in this critical area. I also thank the noble Lords, Lord Clement-Jones and Lord Pannick, and my noble friend Lord Browne of Ladyton, who have given much of their time to support the noble Baroness and meet me and my ministerial colleagues and officials as we work through the policy on this important issue.

Technological advancements have progressed at such a tremendous pace, making it increasingly easy for individuals to create a realistic intimate image of a person without their consent. This is unacceptable. We recognise the risk posed by the creation of these images, both to the individuals depicted in them and to society more widely. Victims report feeling embarrassed, violated and unsafe, and the images undermine the fundamental principle of consent—something we as a society hold in the highest regard. As such, we must act now.

As noble Lords will recall from last week’s debate, the Government committed to tabling an updated amendment at Third Reading reflecting the views heard in this Chamber. Amendment 2 will make it an offence to intentionally create

“a purported intimate image of another person”

without their consent or reasonable belief in their consent. Importantly, there will be no additional mental elements for this offence, which adopts a consent-based approach to better protect victims from harm. This recognises that creating such images, whatever the perpetrator’s purpose, should be considered a criminal violation of a person’s privacy. The scope of this offence will be limited to images of adults, as existing legislation already provides for a number of very serious offences involving similar images of children.

We have carefully considered the concerns raised regarding the types of images involved. We are grateful to the noble Baroness for her constructive collaboration. We have defined the images in the amendment more broadly than originally proposed, by reference to Section 66D(5) to (9) of the intimate image abuse framework in the Sexual Offences Act 2003. This offence will therefore cover the creation of the same types of images as are covered by the sharing intimate images offences, an approach which we intend to replicate in the proposed taking offences. Consequently, the criminal law will be comprehensive and consistent on this issue.

It will be a criminal offence to create, take or share an image which 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, or where the person is, for example, using a toilet.

The Government’s amendment includes a defence based on reasonable excuse, which would apply in the exceptional circumstances where there is a reasonable excuse for creating such an image. The defence places the legal burden of proof on the defendant, so it will be for the defendant to convince the court, on the balance of probabilities, that they had a reasonable excuse for creating the image, rather than for the prosecution to prove that they did not have such an excuse.

It is right that such a defence is available. The law in this country regularly includes a range of defences, including defences of reasonable excuse, and this defence is also available in many other offences, including intimate image offences. This is particularly so with such a new type of offence, where we simply cannot know all the circumstances, now and in the future, as technology develops, where it may be committed. That is another reason for the reasonable excuse defence.

We are confident that the courts would consider very carefully evidence of any such excuse, and how reasonable it was, on the facts of every individual case. That is something the courts are used to considering, and the CPS is used to interrogating, in many offences, and we believe this strikes the right balance between protecting victims and respecting individual rights.

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[Viscount Camrose (Con)]

My Lords, I too support my noble friend Lady Owen in her amendments. Thanks to her tireless and frankly inspiring work, we have an opportunity to make a real difference now—today. She made a powerful and disturbing case for her amendments, and we have heard in Committee, on Report and now today how important these changes are to the many women who have already been victims of deepfakes. This is clearly something we need to address urgently to protect others from being victims in future and to bring perpetrators to justice. Deepfakes can ruin lives, and now is the time to act. In this, my noble friend has our full support.

I congratulate the Government on having travelled some way in tabling their amendment today. We are disappointed that they have still not been able to deliver including solicitation in the proposed offence. My noble friend’s amendments would ensure that it is an offence to solicit—I, too, rather prefer that term—or commission the creation of these kinds of images, and we support her inclusion of solicitation in the new offence.

Of course, I understand that the Government plan further amendments, but for now we are also disappointed that they have decided not to give the courts the option of imposing a custodial sentence on those who commit this new offence, and have chosen not to remove the “reasonable excuse” defence when a defendant has intentionally created an image of this type. Given the seriousness of the new offence and its significant impact on the lives of victims, this new law must have more teeth. We support my noble friend in bringing Amendment 6 to the House, and we will vote with her on this and her other amendments if she chooses to test the opinion of the House. Like others, I rather hope she will.

I conclude by once again paying tribute to my noble friend, who has assembled such a distinguished and respected group of signatories to and supporters of her amendments. Her approach to the Bill is in the highest traditions of your Lordships’ House, and I am proud to support her today.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been both a wide-ranging debate and a specific debate on the noble Baroness’s three amendments. I will deal first with the solicitation point. We have heard the strength of feeling, and the Government will not oppose the noble Baroness’s Amendments 3, 4, 7 and 10. As I said, we had wanted to do it another way, but we recognise the strength of feeling expressed in this debate.

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[Baroness Butler-Sloss (CB)]

Before the noble Lord sits down, may I ask him about the aspect of deterrent? You may have someone—or a company—who is inordinately rich, or someone who is extremely poor, for whom, as he knows, a fine will not work because they do not have any money. There will be instances where a fine would not do but the deterrent would be the possibility of prison.

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness makes a fair point. In practice, this offence is very likely to be charged with the threat to share and other offences, which are of course imprisonable in their own right. As I said, there is no limitation to the number of offences that can be charged. We think it more appropriate that this be a fine-only offence, given the plethora of other offences which can be charged in this field.

[Baroness Owen of Alderley Edge (Con)]

It is important to clarify that someone can be in a relationship with a partner who creates a sexually explicit deepfake, which presents a very real threat to that person even if their partner has not actually threatened to share it. That is what campaigners and victims believe: if you are in this kind of relationship and you know that someone has developed these sexually explicit deepfakes without your consent, that presents a very real threat. We believe that should be imprisonable.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in a sense, this will be tested in the courts. If the woman knows that the images have been created, the threat is there; that is what she is worried about. Of course, that is a separate offence, as I have already said. On the offence where there is no threat and it is just the creation of the image, we believe that a fine-only sentence is appropriate.

Amendment 3 (to Amendment 2) agreed.

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Moved by

[Lord Ponsonby of Shulbrede]

8: Clause 142, page 174, line 22, at end insert—
“(c) section (Creating purported intimate image of adult) (creating purported intimate image of adult) extends to England and Wales only.”Member’s explanatory statement
This amendment provides that the new Clause “Creating purported intimate image of adult” extends to England and Wales only.

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Moved by

[Lord Ponsonby of Shulbrede]

9: Title, line 18, after “services;” insert “to make provision about the creation of purported intimate images;”
Member’s explanatory statement
This amendment is consequential on the amendment inserting the new Clause “Creating purported intimate image of adult”.

[Lord Ponsonby of Shulbrede (Lab)]

I beg to move.

Amendment 10 (to Amendment 9)

Moved by