Northern Ireland legislative consent granted, Scottish legislative consent sought, Welsh legislative consent withheld. Relevant documents: 33rd and 41st Reports from the Delegated Powers Committee, 11th Report from the Constitution Committee, 5th Report from the Joint Committee on Human Rights.
My Lords, I would like to make a short statement on the position regarding the legislative consent Motion on this Bill. While the majority of the provisions in the Bill apply to England and Wales only, certain provisions apply also to Scotland and Northern Ireland. The provisions relate to a mix of excepted, reserved and devolved or transferred matters, and as such engage the legislative consent process in Scotland, Wales and Northern Ireland.
I am pleased to inform the House that yesterday, 24 March, the Scottish Parliament approved a legislative consent Motion in respect of the Bill put forward and supported by the Scottish Government. The Northern Ireland Assembly approved three legislative consent Motions on 23 June, 2 February and 16 March. However, on 10 March the Welsh Senedd debated a legislative consent Motion put forward and supported by the Welsh Government, but the Motion was not supported by the Senedd. This is regrettable, given the measures in the Bill that engage the legislative consent process include a range of offences, such as assault on a retail worker, mobile phone theft, sexual exploitation and others. I cannot for the life of me understand why Plaid Cymru, Reform, Conservative and Liberal Democrat Members opposed the consent Motion in the Welsh Senedd—but they did, and they will have to be accountable for that.
I believe the Bill should pass. We are in discussion with the Welsh Government and the Wales Office about the way forward, and we will set out the Government’s position when the Bill is next considered by the House of Commons after the Recess. In the meantime, I beg to move that the Bill be read a third time.
1: After Clause 101, insert the following new Clause—
“Taking down intimate image content(1) The Online Safety Act 2023 is amended as follows.(2) In section 10 (regulated user-to-user services: safety duties about illegal content) after subsection (3) insert—“(3A) A duty to operate a service using proportionate systems and processes designed to take down—(a) content in relation to which an intimate image content report is made to the provider (see section 20A(2)), and(b) any other content identified by the provider as the same, or substantially the same, as that content,as soon as reasonably practicable, and no later than 48 hours, after the provider receives the report (unless subsection (3B) applies).(3B) This subsection applies if the provider considers that—(a) the content is not intimate image content, or(b) the person making the report is not—(i) the subject of the content, or(ii) a person acting on that person’s behalf.”(3) After section 20 (duty about content reporting) insert—“20A Reporting of intimate image content(1) The duty in section 20(2) includes a duty to operate a service using systems and processes that allow users and affected persons to easily make an intimate image content report to the provider.(2) An “intimate image content report” is a report which—(a) declares that content present on the service is intimate image content,(b) declares that the report is made by—(i) the subject of the content, or(ii) a person acting on that person’s behalf,(c) provides sufficient information about the content for the provider to identify it,(d) provides contact details for the person making the report, and(e) complies with any other requirements specified in regulations made by the Secretary of State.(3) The Secretary of State may by regulations make provision about how the requirements in subsection (2)(a) to (d) are to be met.”(4) In section 21 (duties about complaints procedures) after subsection (2) insert—“(2A) The duty in subsection (2) includes a duty to operate an expedited complaints procedure in relation to complaints within subsection (4)(a), (b)(i) or (b)(ii) that—(a) are made by users or affected persons who have made an intimate image content report (see section 20A(2)), and(b) are about the content to which the report relates.”(5) In section 27 (regulated search services: safety duties about illegal content) after subsection (3) insert— “(3A) A duty to operate a service using proportionate systems and processes designed to ensure that individuals are no longer able to encounter—(a) search content in relation to which an intimate image content report is made to the provider (see section 31A(2)), and(b) any other search content identified by the provider as the same, or substantially the same, as that content,as soon as reasonably practicable, and no later than 48 hours, after the provider receives the report (unless subsection (3B) applies).(3B) This subsection applies if the provider considers that—(a) the search content is not intimate image content, or(b) the person making the report is not—(i) the subject of the content, or(ii) a person acting on that person’s behalf.”(6) After section 31 (duty about content reporting) insert—“31A Reporting of intimate image content(1) The duty in section 31(2) includes a duty to operate a service using systems and processes that allow users and affected persons to easily make an intimate image content report to the provider.(2) An “intimate image content report” is a report which—(a) declares that search content is intimate image content,(b) declares that the report is made by—(i) the subject of the content, or(ii) a person acting on that person’s behalf,(c) provides sufficient information about the search content for the provider to identify it,(d) provides contact details for the person making the report, and(e) complies with any other requirements specified in regulations made by the Secretary of State.(3) The Secretary of State may by regulations make provision about how the requirements in subsection (2)(a) to (d) are to be met.”(7) In section 32 (duties about complaints procedures) after subsection (2) insert—“(2A) The duty in subsection (2) includes a duty to operate an expedited complaints procedure in relation to complaints within subsection (4)(a), (b)(i) or (b)(ii) that—(a) are made by users or affected persons who have made an intimate image content report (see section 31A(2)), and(b) are about the search content to which the report relates.”(8) In section 59 (meaning of “illegal content” etc) after subsection (10) insert—“(10A) “Intimate image content” means content that amounts to an offence under section 66B(1), (2) or (3) of the Sexual Offences Act 2003 (sharing intimate image of a person without consent).””Member’s explanatory statement
This new clause amends the Online Safety Act 2023 to impose new duties about removing content which is reported to providers as intimate image content.
My Lords, government Amendments 1, 14 and 18 deliver on the Government’s commitment to ensure that the strongest protections possible on violence against women and girls online are in place. They seek to create a reporting mechanism for non-consensual intimate images and a requirement that processes and systems be in place so that such content, and any content which is
“the same, or substantially the same”,
is removed within 48 hours.
In moving these amendments, I pay tribute to the work of the noble Baroness, Lady Owen of Alderley Edge, in both raising and being a tireless campaigner on this issue in your Lordships’ House.
We all know that non-consensual intimate image abuse is utterly vile, and the Government are very clear that we will not allow the proliferation of demeaning and degrading images online. I believe that the House is united in recognising the profound and lasting harm that this form of abuse inflicts on victims, and we share a common determination to ensure that victims receive meaningful protection. The Government are committed to delivering a strong, clear, enforceable response across the online safety regime. I am very grateful for the constructive engagement that has been crucial in shaping this amendment, both by the noble Baroness and by my noble friend Lady Levitt.
The Online Safety Act already places robust duties on services to minimise illegal content, including intimate image offences, and provides effective reporting and complaints mechanisms for users. However, given the particular and often acute impact of intimate image abuse, the Government have now committed to going further to set out specific expectations of how platforms must respond when this content is reported.
That brings me to Amendment 1, which delivers on the commitment that we have made to ensure that the strongest protections possible on violence against women and girls online are in place. Amendment 1 seeks to create a reporting mechanism for non-consensual intimate images and a requirement that processes and systems be in place so that such content and any content which is the same or substantially the same is removed within 48 hours.
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In conclusion, I want to quote again my right honourable friend the Secretary of State for Science, Innovation and Technology, who, when the Prime Minister announced the Government’s intention to table this amendment, said:
“The days of tech firms having a free pass are over. Because of the action we are taking platforms must now find and remove intimate images shared without consent within a maximum of 48 hours. No woman should have to chase platform after platform, waiting days for an image to come down”.
I concur with that message.
These amendments ensure that non-consensual images and intimate images are treated with the seriousness they warrant under the UK’s regulatory regime for online platforms and online safety, with enforcement and sanctions reflective of the severe harm caused to victims.
Government Amendments 19 to 21 are minor technical and drafting changes, which I hope are uncontroversial. I pay tribute to the noble Baroness and to all those who have pressed the Government to take action on this matter. The Government have taken action. The noble Baroness has amendments in this group, as indeed does the noble Baroness, Lady Bertin. I will respond to those, if I may, once I have heard from the noble Baroness and anybody else who wishes to speak. For now, I beg to move.
2: In subsection (2), after inserted subsection (3A), insert—
“(3AA) A duty to record and report the average time taken to take down content under the duty in subsection (3A) to OFCOM and to publish the information publicly.”Member’s explanatory statement
This amendment seeks to ensure that internet services must report the average time they take to remove non-consensual intimate images.
My Lords, I will speak to the government amendments and to the amendments in my name and in the names of the noble Baroness, Lady Kidron, and the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara. In doing so, I declare an interest as receiving pro bono legal advice from Mishcon de Reya on image-based sexual abuse.
I am grateful to the Government for working with me to bring forward their amendment in response to my amendment in Committee on 48-hour take-down. I am pleased they are working with me on the amendments that your Lordships’ House passed on Report on the creation of a centralised hash registry and hash sharing. I must add that it is disappointing that after months of speaking to the Government about the importance of hashing and 48-hour amendments working together that they cannot be scrutinised together.
While I am very pleased that government Amendment 1 addresses the concerns I brought forward on de-indexing and duplicates, I do not believe it is sufficient to achieve the mechanism I set out to create in my original 48-hour take-down amendment in Committee. My intention was to create a system where no victim is left behind. This requires the mechanism to be agile and for internet services to feel the consequence of not acting on each individual instance reported. The government amendment has done the bare minimum and simply updated the Online Safety Act where it already instructed internet services to swiftly take down such content, to now add,
“as soon as reasonably practicable, and no later than 48 hours”.
In reality, this represents very little change as the good actors will still move at pace and the bad actors will continue to ignore. One survivor, Jodie, who many noble Lords have met, responded to the government amendment by saying that
My Lords, at Third Reading it is extraordinarily rare to find issues still in contest, and to be presented, as we have been today, with a choice on which we will have to vote. Normally, by this stage, the issues have been clearly discussed and the parties concerned—the Government on the one side and those proposing amendments on the other—have had enough meetings to be able to get to a point where they can agree on what is going forward.
Having said that, I am sure that the whole House is very grateful to my noble friend the Minister for bringing forward what he has brought forward. These are substantial changes to the Online Safety Act and they are extraordinarily welcome. They cover the ground very well, but, as has been pointed out, they perhaps do not go quite as far as they could do. We are at Third Reading, so it is therefore very difficult to find the time and space to be able to resolve what I think are relatively quite small differences between the two sides.
I point out simply to my noble friend the Minister that this places those of us who support the noble Baroness in her amendments in a difficult position about his amendments, which we want to support; but the only way to get them to resolution is probably to vote with the noble Baroness. I hope he will appreciate that, and I suggest to him that, when he comes to respond, he makes it very clear that the Government are still willing to talk about these issues and still willing to meet those who have concerns and views about what the Government have done. I hope he might be able to promise that action could be taken in the Commons to resolve this.
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This builds on the work already undertaken to strengthen the Online Safety Act. The House has already agreed amendments that make requesting or making intimate images and sharing or threatening to share them primary offences under the Online Safety Act. This amendment will impose additional duties on all regulated services and will require platforms to prioritise, detect, mitigate and remove this illegal content more quickly and systematically.
Amendment 1 goes further and delivers on the commitment of my right honourable friend the Prime Minister at the end of February to put social media companies on notice to take down any non-consensual intimate images within 48 hours. The Government’s amendment will introduce a clear, enforceable, statutory duty requiring platforms to have systems and processes in place to remove reported information as soon as possible and within 48 hours.
The duty is designed to work with the Online Safety Act’s systems and processes framework, ensuring that Ofcom can enforce it effectively at scale and deliver for victims of intimate image abuse. This also means that the amendment will be subject to the full suite of enforcement powers at Ofcom’s disposal.
I want to tell the House that Ofcom is to consult on additional safety measures to support the removal of re-uploads, including work on a hash-matching regime, which would require relevant services to adopt technology to detect and prevent re-uploads of non-consensual intimate images. Together, the statutory take-down duty and the hash-matching measures will create a joined-up system that delivers a stronger and more sustainable protection for victims than a stand-alone 48-hour rule.
“it is hugely frustrating to see headline grabbing commitments without the substance needed to actually protect victims. A 48-hour deadline sounds strong, especially when delivered by the Prime Minister to millions on breakfast television, but without real enforcement it risks creating false hope”.
Another victim, Daria, said:
“As a survivor, I feel this is quite simply gaslighting”.
We must remember that Ofcom rules are about systems and processes, and not outcomes. If a service has followed the rules but individual violations still occur, an internet service will not be held responsible. Sophie Mortimer at the Revenge Porn Helpline confirmed this, stating:
“While the platforms that already act in good faith will meet these standards, the persistent bad actors who continue to drive the sharing of this content will ignore and the Government amendment does not give Ofcom enough weapons to respond”.
I am deeply concerned that the Government have not specified how Ofcom will even know if a service fails to act within 48 hours. Ofcom has confirmed that there is no automatic mechanism for it to know whether services are not meeting the 48-hour take-down requirement in any given case. Further, the only recourse the Government provide should a service be found to generally not comply are the long and bureaucratic business disruption measures. This means that women will still suffer ongoing trauma when platforms refuse to comply.
My amendments seek to address the gaps in the government amendments, and I will outline them briefly. Amendments 2 and 8 mandate services to publicly report—and report to Ofcom—their average take-down times.
Amendments 3 and 9 strengthen the government wording on finding duplicate images to ensure that services have to take all reasonable steps, instead of simply relying on what a service may identify.
Amendments 4 and 10 incentivise services to act by creating a more agile mechanism whereby they can be fined per violation, and this can increase for every 24-hour period in which they fail to act, thus ensuring there is a consequence for not acting on individual instances of abuse. I believe these amendments create a more agile mechanism and do not rely solely on business disruption measures. This amendment is based on the TAKE IT DOWN Act, which operates under the rules of the Federal Trade Commission in the USA. The sum I have chosen is based on the figure levied under FTC rules for continued instances of violation after companies have been notified.
Amendments 5 and 11 mandate the Secretary of State to create a mechanism whereby individuals can report to Ofcom in cases where the service provider has failed to remove the content within 48 hours. At present, it is not clear what a victim would do if they reported the content to a service which then failed to act after the initial 48 hours.
Amendments 6 and 12 ensure that services have “clear and conspicuous” notices of where victims can report NCII content. This uses the wording from the TAKE IT DOWN Act and gives more clarity to internet services. The government amendment and the Online Safety Act refer simply to being able
“to easily make an intimate image content report to the provider”.
Amendments 7 and 13 add provisions that seek to curb malicious reporting by requiring a statement that the report has been made “in good faith”. Additionally, this provides internet services with further assurances they need to act more quickly upon receiving reports.
I am grateful to the Government for coming to the table on this issue. However, victims deserve so much more than press releases that promise action but in reality represent little practical change in the most traumatic moment of their lives. I implore noble Lords to vote with me so that no victim is left behind. I beg to move.