Online Safety Bill

Maria Miller Excerpts

Report stage
Monday 5th December 2022 Commons Chamber

[Paul Scully]

I will make a bit of progress, because I am testing Mr Speaker’s patience.

We are making a number of technical amendments to ensure that the new communications offences are targeted and effective. New clause 52 seeks to narrow the exemptions for broadcast and wireless telegraphy licence holders and providers of on-demand programme services, so that the licence holder is exempt only to the extent that communication is within the course of a licensed activity. A separate group of technical amendments ensure that the definition of sending false and threatening communications will capture all circumstances—that is far wider than we have at the moment.

We propose a number of consequential amendments to relevant existing legislation to ensure that new offences operate consistently with the existing criminal law. We are also making a number of wider technical changes to strengthen the enforcement provisions and ensure consistency with other regulatory frameworks. New clause 42 ensures that Ofcom has the power to issue an enforcement notice to a former service provider, guarding against service providers simply shutting down their business and reappearing in a slightly different guise to avoid regulatory sanction. A package of Government amendments will set out how the existing video-sharing platform regime will be repealed and the transitional provisions that will apply to those providers as they transition to the online safety framework.

Finally, new clause 40 will enable the CMA to share information with Ofcom for the purpose of facilitating Ofcom’s online safety functions. That will help to ensure effective co-operation between Ofcom and the CMA.

[Dame Maria Miller (Basingstoke) (Con)]

I thank my hon. Friend for giving way. In the past 40 minutes or so, he has demonstrated the complexity of the changes that are being proposed for the Bill, and he has done a very good job in setting that out. However, will he join me and many other right hon. and hon. Members who feel strongly that a Standing Committee should look at the Bill’s implementation, because of the complexities that he has so clearly demonstrated? I know that is a matter for the House rather than our consideration of the Bill, but I hope that other right hon. and hon. Members will join me in looking for ways to put that right. We need to be able to scrutinise the measures on an ongoing basis.

[Paul Scully]

Indeed, there will be, and are, review points in the Bill. I have no doubt that my right hon. Friend will raise that on other occasions as well.

I want to ensure that there is plenty of time for Members to debate the Bill at this important stage, and I have spoken for long enough. I appreciate the constructive and collaborative approach that colleagues have taken throughout the Bill’s passage.

--- Later in debate ---

[Julian Knight]

My right hon. Friend is correct. We spoke privately before this debate, and he said this is almost five Bills in one. There will be a patchwork of legislation, and there is a time limit. This is a carry-over Bill, and we have to get it on the statute book.

This Bill is not perfect by any stretch of the imagination, and I take the Opposition’s genuine concerns about legal but harmful material. The shadow Minister mentioned the tragic case of Molly Russell. I heard her father being interviewed on the “Today” programme, and he spoke about how at least three quarters of the content he had seen that had prompted that young person to take her life had been legal but harmful. We have to stand up, think and try our best to ensure there is a safer space for young people. This Bill does part of that work, but only part. The work will be done in the execution of the Bill, through the wording on age verification and age assurance.

[Dame Maria Miller]

Given the complexities of the Bill, and given the Digital, Culture, Media and Sport Committee’s other responsibilities, will my hon. Friend join me in saying there should be a special Committee, potentially of both Houses, to keep this area under constant review? That review, as he says, is so badly needed.

[Julian Knight]

I thank my right hon. Friend for her question, which I have previously addressed. The problem is the precedent it would set. Any special Committee set up by a Bill would be appointed by the Whips, so we might as well forget about the Select Committee system. This is not a huge concern for the Digital, Culture, Media and Sport Committee, because the advent of any such special Committee would probably be beyond the next general election, and I am not thinking to that timeframe. I am concerned about the integrity of Parliament. The problem is that if we do that in this Bill, the next Government will come along and do it with another Bill and then another Bill. Before we know it, we will have a Select Committee system that is Whips-appointed and narrow in definition, and that cuts across something we all vote for.

There are means by which we can have legislative scrutiny—that is the point I am making in my speech. I would very much welcome a Committee being set up after a year, temporarily, to carry out post-legislative scrutiny. My Committee has a Sub-Committee on disinformation and fake news, which could also look at this Bill going forward. So I do not accept my right hon. Friend’s point, but I appreciate completely the concerns about our needing proper scrutiny in this area. We must also not forget that any changes to Ofcom’s parameters can be put in a statutory instrument, which can by prayed against by the Opposition and thus we would have the scrutiny of the whole House in debate, which is preferable to having a Whips-appointed Committee.

I have gone into quite a bit of my speech there, so I am grateful for that intervention in many respects. I am not going to touch on every aspect of this issue, but I urge right hon. and hon. Members in all parts of the House to think about the fact that although this is far from perfect legislation and it is a shame that we have not found a way to work through the legal but harmful material issue, we have to understand the parameters we are working in, in the real world, with these companies. We need to see that there is a patchwork of legislation, and the biggest way in which we can effectively let the social media companies know they have skin in the game in society—a liberal society that created them—is through competition legislation, across other countries and other jurisdictions. I am talking about our friends in the European Union and in the United States. We are working together closely now to come up with a suite of competition legislation. That is how we will be able to cover off some of this going forward. I will be supporting this Bill tonight and I urge everyone to do so, because, frankly, after five years I have had enough.

--- Later in debate ---

I am not on my pity pot here; this is not about me. It is happening all over Scotland. Women in work are being forced out of employment. If Governments north and south of the border are to tackle online harms, we must follow through with responsible legislation. Only last week, the First Minister of Scotland, who denied any validity to the concerns I raised in 2019, eventually admitted they were true. But her response must be to halt her premature and misguided legislation, which is without any protection for the trans community, women or girls. We must make the connection from online harms all the way through to meaningful legislation at every stage.

[Dame Maria Miller]

I rise to speak to the seven new clauses in my name and those of right hon. and hon. Members from across the House. The Government have kindly said publicly that they are minded to listen to six of the seven amendments that I have tabled on Report. I hope they will listen to the seventh, too, once they have heard my compelling arguments.

First, I believe it is important that we discuss these amendments, because the Government have not yet tabled amendments. It is important that we in this place understand the Government’s true intention on implementing the Law Commission review in full before the Bill completes its consideration.

Secondly, the law simply does not properly recognise as a criminal offence the posting online of intimate images—whether real or fake—without consent. Victims say that having a sexual image of them posted online without their consent is akin to a sexual assault. Indeed, Clare McGlynn went even further by saying that there is a big difference between a physical sexual assault and one committed online: victims are always rediscovering the online images and waiting for them to be redistributed, and cannot see when the abuse will be over. In many ways, it is even more acute.

Just in case anybody in the Chamber is unaware of the scale of the problem after the various contributions that have been made, in the past five years more than 12,000 people reported to the revenge porn helpline almost 200,000 pieces of content that fall into that category. Indeed, since 2014 there have been 28,000 reports to the police of intimate images being distributed without consent.

The final reason why I believe it is important that we discuss the new clauses is that Ofcom will be regulating online platforms based on their adherence to the criminal law, among other things. It is so important that the criminal law actually recognises where criminal harm is done, but at the moment, when it comes to intimate image abuse, it does not. Throughout all the stages of the Bill’s passage, successive Ministers have said very positive things to me about the need to address this issue in the criminal law, but we still have not seen pen being put to paper, so I hope the Minister will forgive me for raising this yet again so that he can respond.

New clauses 45 to 50 simply seek to take the Law Commission’s recommendations on intimate image abuse and put them into law as far as the scope of the Bill will allow. New clause 45 would create a base offence for posting explicit images online without consent. Basing the offence on consent, or the lack of it, makes it comparable with three out of four offences already recognised in the Sexual Offences Act 2003. Subsection (10) of the new clause recognises that it is a criminal offence to distribute fake images, deepfakes or images using nudification software, which are currently not covered in law at all.

New clauses 46 and 47 recognise cases where there is a higher level of culpability for the perpetrator, where they intend to cause alarm, distress or humiliation. Two in three victims report that they know the perpetrators, as a current or former partner. In evidence to the Public Bill Committee, on which I was very pleased to serve, we heard from the Anjelou Centre and Imkaan that some survivors of this dreadful form of abuse are also at risk of honour-based violence. There are yet more layers of abuse.

New clause 48 would make it a crime to threaten to share an intimate image—this can be just as psychologically destructive as actually sharing it—and using the image to coerce, control or manipulate the victim. I pay real tribute to the team from the Law Commission, under the leadership of Penney Lewis, who did an amazing job of work over three years on their enquiry to collect this information. In the responses to the enquiry there were four mentions of suicide or contemplated suicide as a result of threats to share these sorts of images online without consent. Around one in seven young women and one in nine young men have experienced a threat to share an intimate or sexual image. One in four calls to the Revenge Porn Helpline relate to threats to share. The list of issues goes on. In 2020 almost 3,000 people, mostly men, received demands for money related to sexual images—“sextorsion”, as it is called. This new clause would make it clear that such threats are criminal, the police need to take action and there will be proper protection for victims in law.

New clauses 49 and 50 would go further. The Law Commission is clear that intimate image abuse is a type of sexual offending. Therefore, victims should have the same protection afforded to those of other sexual offences. That is backed up by the legal committee of the Council of His Majesty’s District Judges, which argues that it is appropriate to extend automatic lifetime anonymity protections to victims, just as they would be extended to victims of offences under the Modern Slavery Act 2015. Women’s Aid underlined that point, recognising that black and minoritised women are also at risk of being disowned, ostracised or even killed if they cannot remain anonymous. The special measures in these new clauses provide for victims in the same way as the Domestic Abuse Act 2021.

I hope that my hon. Friend the Minister can confirm that the Government intend to introduce the Law Commission’s full recommendations into the Bill, and that those in scope will be included before the Bill reaches its next stage in the other place. I also hope that he will outline how those measures not in scope of the Bill—specifically on the taking and making of sexual images without consent, which formed part of the Law Commission’s recommendations—will be addressed in legislation swiftly. I will be happy to withdraw my new clauses if those undertakings are made today.

Finally, new clause 23, which also stands in my name, is separate from the Law Commission’s recommendations. It would require a proportion of the fines secured by Ofcom to be used to fund victims’ services. I am sure that the Treasury thinks that it is an innovative way of handling things, although one could argue that it did something similar only a few days ago with regard to the pollution of waterways by water companies. I am sure that the Minister might want to refer to that.

The Bill identifies that many thousands more offences are committed as crimes than are currently recognised within law. I hope that the Minister can outline how appropriate measures will be put in place to ensure support for victims, who will now, possibly for the first time, have some measures in place to assist them. I raised earlier the importance of keeping the Bill and its effectiveness under review. I hope that the House will think about how we do that materially, so we do not end up having another five or 10 years without such a Bill and having to play catch-up in such a complex area.

--- Later in debate ---

[Paul Scully]

All that I can confirm is that we will work with my hon. Friend and with colleagues in the Home Office to make sure that this legislation works in the way that she intends.

We share with my right hon. Friend the Member for Basingstoke (Dame Maria Miller) the concern about the abuse of deep fake images and the need to tackle the sharing of intimate images where the intent is wider than that covered by current offences. We have committed to bring forward Government amendments in the Lords to do just that, and I look forward to working with her to ensure that, again, we get that part of the legislation exactly right.

We also recognise the intent behind my right hon. Friend’s amendment to provide funding for victim support groups via the penalties paid by entities for failing to comply with the regulatory requirements. Victim and survivor support organisations play a critical role in providing support and tools to help people rebuild their lives. That is why the Government continue to make record investments in this area, increasing the funding for victim and witness support services to £192 million a year by 2024-25. We want to allow the victim support service to provide consistency for victims requiring support.

[Dame Maria Miller]

I thank my hon. Friend for giving way and for his commitment to look at this matter before the Bill reaches the House of Lords. Can he just clarify to me that it is his intention to implement the Law Commission’s recommendations that are within the scope of the Bill prior to the Bill reaching the House of Lords? If that is the case, I am happy to withdraw my amendments.

[Paul Scully]

I cannot confirm today at what stage we will legislate. We will continue to work with my right hon. Friend and the Treasury to ensure that we get this exactly right. We will, of course, give due consideration to the Law Commission’s recommendations.

[Dame Maria Miller]

Unless I am mistaken, no other stages of the Bill will come before the House where this can be discussed. Either it will be done or it will not. I had hoped that the Minister would answer in the affirmative.

[Paul Scully]

I understand. We are ahead of the Lords on publication, so yes is the answer.

I have two very quick points for my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright). He was right to speak about acting with humility. We will bring forward amendments for recommittal to amend the approach for category 1 designation—not just the smaller companies that he was talking about, but companies that are pushing that barrier to get to category 1. I very much get his view that the process could be delayed unduly, and we want to make sure that we do not get the unintended consequences that he describes. I look forward to working with him to get the changes to the Bill to work exactly as he describes.

Finally, let me go back to the point that my right hon. Friend the Member for Haltemprice and Howden made about encrypted communications. We are not talking about banning end-to-end encryption or about breaking encryption—for the reasons set out about open banking and other areas. The amendment would leave Ofcom powerless to protect thousands of children and could leave unregulated spaces online for offenders to act, and we cannot therefore accept that.