Digital Images and Consent

Margot James Excerpts

Wednesday 25th April 2018 Commons Chamber

[The Minister for Digital and the Creative Industries (Margot James)]

I thank the hon. Member for Hackney South and Shoreditch (Meg Hillier) for securing this debate and I congratulate her on it. This is a very important issue. I associate myself with much of what she said particularly the tribute she paid to her constituent, Emily, about whom we have corresponded, and with whom I have also corresponded.

We are living through a digital and technological revolution. The tech sector is one of our fastest-growing industries, which is creating hundreds of thousands of good high-skilled jobs up and down the country, and is therefore at the heart of our modern industrial strategy. We will continue to invest in the best new innovations and ideas, in the brightest and best talent, and in revolutionary digital infrastructure. It is absolutely right that this dynamic sector has our full backing, but, while we want the sector to remain free to innovate and to continue to do good, we must guard against the harms to our society that it can facilitate. Some of those harms are very considerable indeed, as exemplified by the hon. Lady’s speech today.

When it comes to the use of digital images, there are a number of existing laws that may apply, from data protection to criminal laws, as the hon. Lady mentioned. For example, digital images containing personal features can be considered personally identifiable information and thus their processing may be governed by data protection laws. Organisations and individuals may have a legitimate need to take, store and share digital images of individuals—for example, sporting events wanting to display athletes and spectators, private premises wanting to use digital images in crime prevention and security, and media organisations for journalistic purposes. I mention those things because if we are to consider new law, we must take into account the panoply of potential. In some of these instances, consent is sought. However, consent will not always be a lawful basis for processing personal data. For example, there may be a legitimate interest to process personal data. A legitimate interest could be a commercial interest, an individual interest, or societal benefits. In journalism, for example, our data protection laws enable processing where publication is in the public interest. However, the use of photography will still be subject to regulatory standards and codes of practice adopted by the publishers and the press.

It is unacceptable to photograph individuals without their consent in public or private places where there is a reasonable expectation of privacy. There must not be persistence in questioning, telephoning, pursuing or photographing individuals once asked to desist and journalists cannot remain on a property when asked to leave, or follow people. If requested, journalists must identify themselves and whom they represent.

Regulators also issue separate guidance regarding the photography of children. It is worth noting that data protection laws do not apply to processing activities undertaken in personal household or family settings. The Government have taken the position that to do otherwise would be to improperly extend the reach of regulation into personal lives—although I must say that I was very moved by the example that the hon. Lady read out from the Mumsnet service.

[Meg Hillier]

I know that the Minister is a thoughtful woman and I am pleased that she is pausing for thought on this matter. There is an interesting point here about regulation in the home. I understand the political difficulty of legislating for things that take place in the home, but we do legislate against domestic violence and child abuse, and on other safety matters. These take place in the privacy of people’s homes, so it is not beyond the wit of Government to tackle this issue, even with those caveats.

[Margot James]

The hon. Lady makes some good points. I shall consider those examples. Intrusive behaviour and sexual harassment may take place in the home and, as she says, the law does not stop at people’s front doors, nor should it.

As I said, data protection laws do not apply to processing activities undertaken in personal households. Data protection laws do, however, apply when digital images are shared online—as they so often are—or made public in some other way. The Data Protection Bill will empower people to take control of their data, and strengthen their rights to move or delete personal data. That includes the use of images. We expect online platforms to have robust processes in place to remove images or user accounts that do not comply with the law or their own policies.

Our internet safety strategy Green Paper, which was published last October, set out the three key principles that underpin our online safety work. First, what is unacceptable offline should be unacceptable online. Secondly, all users should be empowered to manage online risks and stay safe. Thirdly, technology companies have a responsibility to their users. We will shortly be publishing the Government’s response to the strategy consultation, and this will set out further details on how we plan to tackle a wide range of online harms. When considering privacy rights, individuals or organisations that process personal data should consider alongside data protection law compliance with a wide range of legislation, including the Communications Act 2003, the Protection from Harassment Act 1997 and the European convention on human rights.

In relation to explicit images, some images recorded may depict persons who are, for example, naked, and we would not want the law to prevent that from occurring in all cases. But under data protection law, data controllers are already under duties to keep the data safe and secure, and not to hold on to it longer than necessary. Moreover, if any images recorded were subsequently used by an individual for the purposes of sexual gratification, other offences may then be relevant.

The hon. Lady mentioned the offence of voyeurism, which criminalises non-consensual photography and the filming of certain private acts when taken for the purpose of obtaining sexual gratification, as well as for a number of other offences that may have related relevance—for example, the outraging of public decency and revenge pornography offences.

The hon. Lady also mentioned the specific legislation that has been passed in Scotland since a tailor-made offence was introduced in 2011. I point out that there have been only four prosecutions for upskirting since that Act was introduced. The Act was presumably passed because Scottish law did not previously capture the behaviour that she mentioned. That behaviour is captured to a large extent—although potentially not wholly—by the voyeurism offence set out in sections 67 and 68 of the Sexual Offences Act 2003. The offence applies when someone observes or records another person engaging in a private act without that person’s consent, with the intention of looking at that image or another person looking at that image for the purpose of obtaining sexual gratification.

The hon. Lady also drew attention to the remarks made by my ministerial colleagues in the Ministry of Justice. I am not sure whether this is the exact quote that she read out, but I was encouraged when my right hon. Friend the Justice Secretary said this in reply to a question from the hon. Member for Sheffield, Brightside and Hillsborough (Gill Furniss) about the policy on upskirting:

“I am sympathetic to calls for a change in the law, and my officials are reviewing the current law to make sure that it is fit for purpose. As part of that work, we are considering the private Member’s Bill that is being promoted by the hon. Member for Bath (Wera Hobhouse).”—[Official Report, 24 April 2018; Vol. 639, c. 724.]

I have also had conversations with my right hon. Friend, and we are in agreement that more must be done in Government to look at this very difficult area. Much of it is covered by the offence of voyeurism and, in the upskirting context, by offences that occur in a public place. The two Acts I mentioned deal in large part with the issues of concern that the hon. Lady spoke of, but it seems that they may not wholly cover them. I, too, was encouraged by the letter from the Director of Public Prosecutions.

I can assure the hon. Lady that the Government are considering these matters, including upskirting, and we will continue to do so. I thank her for her very detailed research into this area, which will undoubtedly contribute to the Government’s thinking.

Question put and agreed to.