Online Safety Bill (Fourteenth sitting)

Maria Miller Excerpts

Committee stage
Tuesday 21st June 2022 Public Bill Committees

[Kirsty Blackman]

I would like to make a couple of comments. The shadow Minister mentioned education and prevention projects, which are key. In Scotland, our kids’ sex, health and relationship education in schools teaches consent from the earliest possible age. That is vital. We have a generation of men who think it is okay to send these images and not seek consent. As the shadow Minister said, the problem is everywhere. So many women have received images that they had no desire to see. They did not ask for them, and they did not consent to receive them, but they get them.

Requiring someone to prove the intent behind the offence is just impossible. It is so unworkable, and that makes it really difficult. This is yet another issue that makes it clear that we need to have reference to violence against women and girls on the face of the Bill. If that were included, we would not be making such a passionate case here. We would already have a code of conduct and assessments that have to take place on the basis of the specific harm to women and girls from such offences. We would not be making the case so forcefully because it would already be covered.

I wish the Minister would take on board how difficult it is for women and girls online, how much of an issue this specific action causes and how much pain and suffering it causes. It would great if the Minister could consider moving somewhat on this issue in order to protect women and girls.

[Dame Maria Miller (Basingstoke) (Con)]

I want to make sure that the record is clear that while I did receive a dick pic, I am not a millennial. That shoes how widespread this problem is. My children would want that on the record.

Research done by YouGov showed that half of millennial women have been sent a photo of a penis, and that nine in 10 women who have ever received such a picture did not want to have it sent to them. To anybody who is trying to—I do not feel anybody today is—advocate that this is a small issue or a minority problem, the data suggest that it is not.

For the record, I think the reason I was sent that picture was not sexual at all. I think it was intimidatory. I was sitting in a train carriage on my way into Parliament on a hot day, and I think it was sent as intimidation because I could not leave that carriage and I had, in error, left my AirDrop on. Okay, that was my fault, but let us not victim blame.

I very much welcome the Minister’s approach, because he is the first person to take forward a series of new offences that are needed to clarify the law as it affects people in this area. As he was talking, I was reflecting on his use of the word “clarity”, and I think he is absolutely right. He is rightly looking to the Law Commission as the expert for how we interpret and how we get the most effective law in place.

Although we are not talking about the intimate image abuse recommendations in this part of the Bill, I draw to the Committee’s attention that I, and others, will have received an email from the Law Commission today setting out that it will bring forward its recommendations next month. I hope that that means that the Minister will bring forward something concrete to us about those particular offences in the coming weeks. He is right that when it comes to cyber-flashing, we need to get it right. We need to make sure that we follow the experts. The Law Commission was clear when it undertook its review that the current law does not adequately address these issues. I was pleased when it made that recommendation.

A great many people have looked at these issues, and I pay tribute to each and every one of them, though they come to slightly different conclusions about how we interpret the Law Commission’s recommendations and how we move forward. Professor Clare McGlynn is an expert. Bumble has done work on this; my hon. Friend the Member for Brecon and Radnorshire (Fay Jones) has done a great deal of work too, and I recognise her contribution.

The offence is particularly pernicious because it is as prevalent as indecent exposure. It is right that the offence is recognised in the Sex Offenders Act 2003 as a result. As the hon. Member for Pontypridd said, it is another form of gendered crime online. On the evidence of harm that it causes, she referenced the evidence that we got from Professor McGlynn about Gaia Pope. That was particularly concerning. I do not think any of us in the Committee would argue that this is not the most serious of offences, and I commend the Minister for bringing forward a serious set of recommendations to tackle it.

--- Later in debate ---

[Chris Philp]

It is a fair question. There might be circumstances in which somebody simply misjudges a situation—has not interpreted it correctly—and ends up committing a criminal offence; stumbling into it almost by accident. Most criminal offences require some kind of mens rea—some kind of intention to commit a criminal offence. If a person does something by accident, without intention, that does not normally constitute a criminal offence. Most criminal offences on the statute book require the person committing the offence to intend to do something bad. If we replace the word “intent” with “without consent”, the risk is that someone who does something essentially by accident will have committed a criminal offence.

I understand that the circumstances in which that might happen are probably quite limited, and the context of the incidents that the hon. Member for Pontypridd and my right hon. Friend the Member for Basingstoke have described would generally support the fact that there is a bad intention, but we have to be a little careful not accidentally to draw the line too widely. If a couple are exchanging images, do they have to consent prior to the exchange of every single image? We have to think carefully about such circumstances before amending the clause.

[Dame Maria Miller]

I have to say, just as an aside, that the Minister has huge levels of empathy, so I am sure that he can put himself into the shoes of someone who receives such an image. I am not a lawyer, but I know that there is a concept in law of acting recklessly, so if someone acts recklessly, as my hon. Friend has set out in his Bill, they can be committing a criminal offence. That is why I thought he might want to consider not having the conditional link between the two elements of subsection(1)(b), but instead having them as an either/or. If he goes back to the Law Commission’s actual recommendations, rather than the interpretation he was given by the MOJ, he will see that they set out that one of the conditions should be that defendants who are posting in this way are likely to cause harm. If somebody is acting in a way that is likely to cause harm, they would be transgressing. The Bill acknowledges that somebody can act recklessly. It is a well-known concept in law that people can be committing an offence if they act recklessly—reckless driving, for example. I wonder whether the Minister might think about that, knowing how difficult it would be to undertake what the hon. Member for Pontypridd is talking about, as it directly contravenes the Law Commission’s recommendations. I do not think what I am suggesting would contravene the Law Commission’s recommendations.

[Chris Philp]

I will commit to consider the clause further, as my right hon. Friend has requested. It is important to do so in the context of the Law Commission’s recommendations, but she has pointed to wording in the Law Commission’s original report that could be used to improve the drafting here. I do not want to make a firm commitment to change, but I will commit to considering whether the clause can be improved upon. My right hon. Friend referred to the “likely to cause harm” test, and asked whether recklessness as to whether someone suffers alarm, distress or humiliation could be looked at as a separate element. We need to be careful; if we sever that from sexual gratification, we need to have some other qualification on sexual gratification. We might have sexual gratification with consent, which would be fine. If we severed them, we would have to add another qualification.

It is clear that there is scope for further examination of clause 156. That does not necessarily mean it will be possible to change it, but it is worth examining it further in the light of the comments made by my right hon. Friend. The testimony we heard from witnesses, the testimony of my right hon. Friend and what we heard from the hon. Member for Pontypridd earlier do demonstrate that this is a widespread problem that is hugely distressing and intrusive and that it represents a severe violation. It does need to be dealt with properly.

We need to be cognisant of the fact that in some communities there is a culture of these kinds of pictures being freely exchanged between people who have not met or communicated before—on some dating websites, for example. We need to draft the clause in such a way that it does not inadvertently criminalise those communities—I have been approached by members of those communities who are concerned.