Online Safety Act 2023 (Priority Offences) (Amendment) Regulations 2024

Viscount Camrose Excerpts

Monday 28th October 2024 Grand Committee

[Lord Stevenson of Balmacara (Lab)]

My Lords, I started my discussion on the previous instrument on a slightly negative note. I want to change gear completely now and say how nice it is to see the first of the SIs relating to the Online Safety Act come forward. I welcome that.

Having said that, may I inquire what the Government’s intention is in relation to the Parkinson rule? I think I am correct in saying that we wish to see in place an informal but constant process by the Government when they bring forward legislation under the Online Safety Act, which would be offered to the standing committees so that they could comment and make advice available to Ministers before the Secretary of State finally approved any such legislation. This would primarily be concerned with the codes of practice, but this is exactly the sort of issue, well exemplified by the noble Baroness, Lady Owen, where there is still some concern about the previous Government’s approach to this Bill.

If I recall, this rule was in one of the later amendments brought in towards the end of the process. Rather unlike the earlier stuff, which was seven years in the making, this was rushed through in rather less than seven weeks as we got to the end of discussions on the Online Safety Bill. To get the deal that we all, across the political parties, hoped would happen, and so that the country would benefit from the best possible Act we could get out of the process, there were a number of quite late changes, including the question about deepfake issues, which was not given quite the scrutiny that it could have had. Of course, we are now receiving discussion and debate on those issues, and it is important that we understand them and the process that the Government will take to try to resolve them.

This question of having consent was hotly debated by those who led on it during the time the Bill was before your Lordships’ House. I felt the arguments very clearly came out in favour of those who argued that the question of consent, as mentioned by the noble Lord, Lord Clement-Jones, really is not relevant to this. The offence is caused by the circulation of material, and the Act should contain powers sufficient for the Secretary of State to be satisfied that Ofcom, in exercising its regulatory functions, has the powers to take down this material where it is illegal.

There are two issues tied up in that. I think all of us who have spoken in this debate are concerned that we have not really got to the end of the discussion on this, and we need to have more. Whether through the Private Member’s Bill that we will hear about in December or not, the Government need to get action on that. They need to consult widely with the committees, both in the Commons and here, to get the best advice. It may well be that we need further debate and discussion in this House to do so.

Having said that, the intention to clarify what exactly is legal lies at the heart of the Online Safety Act. The Act will not work and benefit the country if we go back to the question of legal but harmful. The acid test for how the material is to be treated by those who provide services to this country has to be whether it is legal. If it is illegal, it must be taken down, and there must be powers and action specifically for that to happen. It is unfortunate that, if material is not illegal, it is a matter not for the Government or Parliament but for the companies to ensure that their terms of service allow people to make judgments about whether they put material on their platforms. I hope that still remains the Government’s position. I look forward to hearing the Minister’s response.

[Viscount Camrose (Con)]

My Lords, I shall also start on a positive note and welcome the ongoing focus on online safety. We all aim to make this the safest country in the world in which to be online. The Online Safety Act is the cornerstone of how all of us will continue to pursue this crucial goal. The Act imposed clear legal responsibilities on social media platforms and tech companies, requiring them actively to monitor and manage the content they host. They are required swiftly to remove illegal content and to take proactive measures to prevent harmful material reaching minors. This reflects the deep commitment that we all share to safeguarding children from the dangers of cyberbullying, explicit content and other online threats.

We must also take particular account of the disproportionate harm that women and girls face online. The trends regarding the online abuse and exploitation that disproportionately affect female users are deeply concerning. Addressing these specific challenges is essential if we are to create a truly safe online environment for everyone.

With respect to the Government’s proposed approach to making sharing intimate images without consent a priority offence under the Online Safety Act, this initiative will require social media companies promptly to remove such content from their platforms. This aims to curb the rise in abuse that has been described as “intolerable”—I think rightly—by the Secretary of State. The intent behind this measure is to prevent generations becoming “desensitised” to the devastating effects of online abuse.

Although this appears to signal a strong stance against online harm, it raises the question of what this designation truly accomplishes in practical terms. I am grateful to the Minister for setting this out so clearly. I am not entirely sure that I altogether followed the differences between the old offences and the new ones. Sharing intimate images without consent is already illegal under current laws. Therefore, can we not say that the real issue lies in the absence not of legal provision but of effective enforcement of existing regulation? We have to ensure that any changes we make do not merely add layers of complexity but genuinely strengthen the protections available to victims and improve the responsiveness of platforms in removing harmful content.

With these thoughts in mind, I offer five questions. I apologise; the Minister is welcome to write as necessary, but I welcome her views whether now or in writing. First, why is it necessary to add the sharing of intimate images to the list of priority offences if such acts are already illegal under existing legislation and, specifically, what additional protections or outcomes are expected? The Minister gave some explanation of this, but I would welcome digging a little deeper into that.

Secondly, where consent is used as a defence against the charge of sharing intimate images, what are the Government’s thoughts on how to protect victims from intrusive cross-examination over details of their sexual history?

Thirdly, with respect to nudification technology, the previous Government argued that any photoreal image was covered by “intimate image abuse”—the noble Lord, Lord Clement-Jones, touched on this issue well. Is there any merit in looking at that again?

Fourthly, I am keen to hear the Government’s views on my noble friend Lady Owen’s Private Member’s Bill on nudification. We look forward to debating that in December.

Fifthly, and lastly, what role can or should parents and educators play in supporting the Act’s objectives? How will the Government engage these groups to promote online safety awareness?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords for their contributions to this debate. This is, as I think all noble Lords who have spoken recognise, a really important issue. It is important that we get this legislation right. We believe that updating the priority offences list with a new intimate image abuse offence is the correct, proportionate and evidence-led approach to tackle this type of content, and that it will provide stronger protections for online users. This update will bring us closer to achieving the commitment made in the Government’s manifesto to strengthening the protection for women and girls online.

I will try to cover all the questions asked. My noble friend Lord Stevenson and the noble Baroness, Lady Owen, asked whether we will review the Act and whether the Act is enough. Our immediate focus is on getting the Online Safety Act implemented quickly and effectively. It was designed to tackle illegal content and protect children; we want those protections in place as soon as possible. Having said that, it is right that the Government continually assess the law’s ability to keep up, especially when technology is moving so fast. We will of course look at how effective the protections are and build on the Online Safety Act, based on the evidence. However, our message to social media companies remains clear: “There is no need to wait. You can and should take immediate action to protect your users from these harms”.

The noble Baroness, Lady Owen, asked what further action we are taking against intimate abuse and about the taking, rather than sharing, of intimate images. We are committed to tackling the threat of violence against women and girls in all forms. We are considering what further legislative measures may be needed to strengthen the law on taking intimate images without consent and image abuse. This matter is very much on the Government’s agenda at the moment; I hope that we will be able to report some progress to the noble Baroness soon.

The noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Owen, asked whether creating and making intimate image deepfakes will be an offence. The Government’s manifesto included a commitment to banning the creation of sexually explicit deepfakes. This is a priority for the Government. DSIT is working with the Home Office and the Ministry of Justice to identify the most appropriate legislative vehicle for ensuring that those who create these images without consent face the appropriate punishment. The Government are considering options in this space to protect women and girls from malicious uses of these technologies. The new sharing intimate images offence, which will be added to the OSA priority list through this SI, explicitly includes—for the first time—wholly synthetic manufactured images, such as deepfakes, so they will be tackled under the Online Safety Act.

The noble Baroness, Lady Owen, asked about the material that is already there and the ability to have a hash database to prevent those intimate images continually being circulated. We are aware that the technology exists. Strengthening the intimate image abuse priorities under the Act is a necessary first step to tackling this, but we expect Ofcom to consider this in its final draft illegal content codes and guidance and to give more information about both the codes of practice and the further measures that would need to be developed to address this issue.

Several noble Lords—the noble Viscount, Lord Camrose, the noble Lord, Lord Clement-Jones, and my noble friend Lord Stevenson—asked for more details on the new offences. As I tried to set out in my opening statement, the Online Safety Act repeals the offence of disclosing private sexual photographs and films with the intent to cause distress—this comes under Section 33 of the Criminal Justice and Courts Act 2015 and is commonly known as the revenge porn offence—and replaces it with four new offences.

First, there is a base offence of sharing an intimate image without consent, which carries a maximum penalty of six months’ imprisonment. Secondly, there are two specific-intent offences—the first is sharing an intimate image with intent to cause alarm, humiliation or distress; the second is sharing an intimate image for the purpose of obtaining sexual gratification—each of which carries a maximum penalty of two years’ imprisonment to reflect the more serious culpability of someone who acts without consent and with an additional malign intent. Lastly, there is an offence of threatening to share an intimate image, with a maximum penalty of two years’ imprisonment. This offence applies regardless of whether the image is shared.

These offences capture images that show, or appear to show, a person who is nude, partially nude, engaged in toileting or doing something sexual. These offences include the sharing of manufactured or manipulated images, which are referred to as deepfakes. This recognises that sharing intimate images without the consent of the person they show or appear to show is sufficiently wrongful or harmful to warrant criminalisation.

The noble Viscount, Lord Camrose, asked what is so different about these new offences compared to those in the Act. I stress that it is because they are being given priority status, which does not sound much but gives considerable extra powers under the Act. There will be new powers and new obligations on platforms. The key thing is that all those offences that already exist are being given priority status under the Online Safety Act. There are thousands of things that Ofcom could address, but this is now in the much smaller list of things that will place very specific obligations on the platforms. Ofcom will monitor this and, as I said earlier, companies can be fined huge sums of money if they do not act, so there is a huge obligation on them to follow through on the priority list.

I hope that I have answered all the questions and that noble Lords agree with me on the importance of updating the priority offences in the Online Safety Act. The noble Viscount, Lord Camrose, asked about parents and made an important point. This is not just about an Act, it is about everybody highlighting the fact that these activities are intolerable and offensive not just to the individuals concerned but to everybody in society, and parents have a responsibility, as we all do, to ensure that media literacy is at the height of the education we carry out formally in schools and informally within the home. The noble Viscount is absolutely right on that, and there is more that we could all do. I commend these regulations to the Committee.