Digital Images and Consent

Meg Hillier Excerpts

Wednesday 25th April 2018 Commons Chamber

[Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

The taking of digital images without consent, and particularly the lack of recourse in law for victims, is a very serious issue. I pay tribute to a very brave woman, my constituent Emily, who has chosen to speak out about her experience in the hope that we can secure a change in the law. I hope that by speaking about her ordeal today, I, along with other Members who I know share an interest in this issue, can encourage others to share their experience with us so we can add their voices to persuading the Government of the need for action.

Emily found herself alone in a hotel room with a strange man. There is the prospect of legal action, so I will skip over the detail of everything that happened that day, but it came to light later that this man had filmed Emily for just over a minute while she was asleep and naked. This video was not, as far as anyone knows, distributed to any third party, uploaded online, shared or transferred to other digital platforms. The video was taken on that ubiquitous modern-day accessory, a mobile phone.

Prior to today’s debate, I have been in contact with the Government about what plans they have to legislate. So far, the answer is none, although I thank the Minister for the detailed response that came from her Department. I want to highlight today the concerns I have with the Government’s response and to push her to see what she can do to take this back into the heart of Government and push for change herself. Before I do that, I want to highlight the fact that, although my debate is focusing on this private video, there is a wider theme here. As I am sure you are aware, Mr Speaker, the hon. Member for Bath (Wera Hobhouse) is promoting a private Member’s Bill to ban upskirting—that is when someone takes a photograph up someone’s skirt. Upskirting has been banned in Scotland since 2009, and I raise the issue because its prevalence, and therefore the impact, has been exacerbated as well by the growth of mobile phone use.

That is one reason the Government’s response is not good enough. No one, least of all Emily, expects a change in the law to be without its challenges, but in this modern digital world we need laws that deal with the reality of life.

[Jim Shannon (Strangford) (DUP)]

I congratulate the hon. Lady on bringing this matter to the House for consideration. Does she agree that her constituent’s case has made it clear that the law is far from settled and that our role in this place is primarily to clarify ethical issues and enshrine them in legislation? Thus far, that has not happened in this area and so we need a change urgently.

[Meg Hillier]

Absolutely. I will go on to highlight some of the expert advice we have had about where there may be possibility for change or interpretation of the law as it stands. Currently, the law does not appear to recognise the difference between viewing someone naked, and filming or photographing someone naked without their consent. I put it to Members: should it be legal for someone, whether a stranger, partner, spouse or friend, to film another person naked without their consent when they are in a private situation? Most people would say no. None of us would want bad law made in hurry, so I understand the Government may not want to rush into this, and although the initial response may have been disappointing, I get where they are coming from. However, they do need to tackle this issue. This may not be affecting that many people now, although we do not know the full extent of it, but this issue is not likely to go away while people have mobile phones in their pockets. It causes great distress, so the Government do need to think about the impact on the individuals concerned and they have to consider a way forward.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I congratulate the hon. Lady on securing this debate. Does she share my concern that the sheer plethora of legislation—30-plus pieces, one of which dates back to 1861—to deal with digital abuse is unsuitable for the 21st century? Does she agree that criminal justice professionals need training in this area, as well as our needing to consider new powers?

[Meg Hillier]

I thank the hon. Lady very much for that. She rightly highlights the fact that there is law in this area but it does not fit modern purposes and it is very complicated for people to navigate their way through. It is not beyond the wit of Government to pull some of that together, perhaps under a future legislative vehicle, if not a law in its own right.

Everybody has a camera in their pocket and everyone has a laptop with a tiny camera in their bedroom. The Government responded to me, saying that:

“we would not necessarily want to criminalise all photographic images depicting naked people without consent because there might be legitimate use for that data in some circumstances.”

I asked the Minister what circumstances those might be, and I am going to go on to talk about some of that in a moment. The Government also say it would be unreasonable to seek consent in all cases, and they give the examples of a streaker at a sports event or a public event that involves nudity. I am sure, Mr Speaker, that you are so busy in the House that you may not have noticed that there are sometimes naked bike rides around Parliament Square. There is a big difference between what we are discussing and someone choosing to get on a bicycle naked in Parliament Square—I do not think anybody would say that there is a reasonable expectation of privacy in those circumstances.

The reasonable expectation of privacy is used to define a “private act” under section 67 of the Sexual Offences Act 2003. It states that a person commits an offence of voyeurism if

“(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and

(b) he knows that the other person does not consent to being observed for his sexual gratification.”

The Act goes on to state that:

“For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy”.

Those words are important in this context. It goes on to say

“and—

(a) the person’s genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

(c) the person is doing a sexual act that is not of a kind ordinarily done in public.”

The Crown Prosecution Service appears to have dismissed Emily’s complaint about the video as the circumstances were such that there was no reasonable expectation of privacy. Even if she had been in the room consensually with another person, there is not a reasonable expectation that the other person would not “observe” her sleeping naked in bed. However, the law does not appear to recognise the difference between “observing” and, crucially, recording for posterity, regardless of intent to distribute or publish. Had the image been published or distributed, we would have been having a different debate today.

The 2003 law appears to address a “peeping Tom” scenario—that is, someone secretly viewing or observing a private act. The issue I am raising today is the situation of someone being photographed or filmed without consent when doing a private act—surreptitious filming of a private act—when they would reasonably expect not to be filmed without giving their consent. That is what happened to my constituent.

I should also make a very clear divide between this issue and revenge porn. If things are published or distributed, that is a very different area. That is not what I am talking about today, although it is of course a very serious issue.

I am also grateful to the hon. Member for Shipley (Philip Davies), who has also been pursuing this matter. A response to him from the CPS gives me some hope, and I hope that the Minister will take heed of these words. It states that

“the conclusion could be reached that there is a reasonable expectation of privacy in respect of being filmed naked whilst asleep. However, the law is far from settled but this is certainly an argument which could be reasonably advanced.”

It is often the case that when there is more than one lawyer, there is more than one opinion, and I suspect that Government lawyers have come down on one side at the moment but will, I hope, take those words away and consider them.

If we asked most people whether they would be happy to be filmed or photographed doing a private act without having consented, by any other person—a partner, a spouse or a stranger—despite that other person having been present in the room, most would say no. I am not just assuming that. An opinion survey helpfully carried out by Opinium found that three in four—76%—of UK adults think that it is currently illegal in the UK to video without their consent someone over 18 who is naked. That is the general expectation of the public, and is way out when it comes to the law. Four in five UK adults would support a change in the law so that videoing someone over 18 who is naked, without their consent, becomes illegal in all circumstances. Of course, that latter point is from an answer to an opinion survey, and I recognise that for the Government to legislate they would have to consider carefully whether they wanted to cover all circumstances and how it would be defined, but the Government are here to legislate. They have drafters. They could work through how this could be delivered.

To highlight the distress, when I was researching this matter in preparation for today, I came across a debate on a Mumsnet forum from 2013—this is not new, sadly. This demonstrates the hurt and damage that this does. The person writing was a married woman checking emails on her husband’s phone, and she writes that

“something made me look at his photos. I found some taken of me, asleep on the sofa, photos of my cleavage. There was also video footage of me getting undressed in the bedroom the night before. Disgusted, I challenged him that night…We had a big row, he promised the photos were not posted on the Internet, and that he didn’t know why he’d done it.”

She goes on

“fast forwarded to now and I’ve just found some photos of me taken on our recent holiday, me asleep on the sunbed, photos of my bottom, and my breasts. I feel sick. I can’t trust him anymore”.

That underlines the human hurt in a situation such as this.

If we look at the criteria under which the media have to operate, we can see that although the use of photography in the press is self-regulatory, the editors’ code of practice for the Independent Press Standards Organisation states:

“It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy”.

Many Members of this House are very well aware of that. However, nowadays everyone is a photojournalist in respect of their own, and others’, life story. Many young people, in particular, record their lives online and it is time for better regulation in this area.

Since I wrote to the Government, there has been some progress. The Secretary of State for Justice said yesterday that he is reviewing the law to make sure that it is fit for purpose in relation to upskirting. He has indicated that he is looking at the matter, and I urge the Minister, who I know is a very reasonable and thoughtful woman, to take away what I have said, talk to the Ministry of Justice, because I recognise that this issue falls between the two Departments, and urge the Secretary of State to consider taking forward this issue in the review of upskirting and in the review of the use of digital photography. There are many victims out there who have not come forward, but even if there is only one, it is one too many to have this distress. It is time for the Government seriously to consider proper legislation.

--- Later in debate ---

[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.