56A: After Clause 132, insert the following new Clause—
“Creating purported sexual image of adult(1) The Sexual Offences Act 2003 is amended in accordance with subsections (2) and (3).(2) After section 66A insert—“66AA Creating purported sexual image of adult(1) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so with the intention of causing B alarm, distress or humiliation, and(c) B does not consent to the creation of the purported sexual image.(2) A person (A) commits an offence if—(a) A intentionally creates a purported sexual image of another person (B),(b) A does so for the purpose of A or another person obtaining sexual gratification,(c) B does not consent to the creation of the purported sexual image, and(d) A does not reasonably believe that B consents.(3) “Purported sexual image” of a person means an image which—(a) appears to be or include a photograph or film of the person (but is not, or is not only, a photograph or film of the person),(b) appears to be of an adult, and(c) appears to show—(i) the person participating or engaging in a sexual act which is not of a kind ordinarily done in public,(ii) the person doing a sexual thing which is not of a kind ordinarily done in public,(iii) all or part of the person’s exposed genitals or anus, or (iv) all or part of the person’s exposed breasts, except where what appears to be shown is something of a kind ordinarily seen in public.(4) In this section, a reference to creating a purported sexual image of a person does not include doing so by modifying a photograph or film of the person where what is created by the modification is an image which—(a) appears to show the person, and(b) does not appear to show something within subsection (3)(c)(i) to (iv) which, or a person who, is not shown in the photograph or film.(5) A person who commits an offence under this section is liable on summary conviction to a fine.66AB Creating purported sexual image of adult: definitions etc(1) This section applies for the purposes of section 66AA.(2) “Consent” to the creation of a purported sexual image includes general consent covering the particular act of creation as well as specific consent to that particular act.(3) Whether a belief is “reasonable” is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.(4) A reference to an “image”, “photograph” or “film” includes data stored by any means which is capable of conversion into an image, photograph or film.(5) An image of a person appears to be an image of an adult if—(a) the impression conveyed by the image is that the person shown is aged 18 or over, or(b) the predominant impression conveyed by the image is that the person shown is aged 18 or over (even if some of the physical characteristics shown are those of a person under 18).(6) An act or thing is “sexual” if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.”(3) In section 79(5) (meaning of references to image of a person), after “a person” insert “(except in sections 66AA and 66AB)”.(4) In the Sentencing Code, after section 154 insert—“154A Purported sexual images to be treated as used for purpose of certain offences(1) This section applies where a person commits an offence under section 66AA(1) or (2) of the Sexual Offences Act 2003 (creating purported sexual image of adult).66AA(1)(2) The purported sexual image to which the offence relates, and anything containing it, is to be regarded for the purposes of section 153 (and section 157(3)(b)) as used for the purposes of committing the offence (including where it is committed by aiding, abetting, counselling or procuring).””Member's explanatory statement
This clause creates offences of creating a purported sexual image of an adult and provides that deprivation orders can be made under the Sentencing Code in connection with the offences.
My Lords, as will become clear, although I am moving Amendment 56A, it is not the Government’s intention to insert these provisions into the Bill.
This is an issue on which there has been great and very important debate. I start by thanking the noble Lady Baroness, Lady Owen of Alderley Edge, for her tireless campaigning on this matter. This is a crucial area of law to get right, and the noble Baroness has rightly kept it at the top of the agenda in your Lordships’ House, arguing passionately on behalf of victims of this appalling form of abuse. I also thank other signatories to amendments in this group: the noble Baronesses, Lady Kidron and Lady Gohir, my noble friend Lord Browne of Ladyton and the noble Lord, Lord Clement-Jones. We have valued the engagement that has taken place. It is because we have been listening very carefully to the points made by these noble Lords and, indeed, many others, that we are able to confirm that the Government will be making good on their manifesto commitment to criminalise those who create a sexually explicit deepfake of an adult without their consent.
Noble Lords will know that the Government had intended to legislate in this area in the upcoming crime and policing Bill. However, following consultation with stakeholders and colleagues across your Lordships’ House, we have not only decided to use this Bill to criminalise the creation of sexually explicit deepfakes but will bring new amendments forward for Third Reading. Our proposed new amendments will take a similar approach to that of the noble Baroness, Lady Owen, on many key issues of concern raised in your Lordships’ House, while ensuring that they will work effectively within existing legal frameworks. Our new amendments will make it an offence to intentionally create an intimate image of a person without their consent or reasonable belief in their consent. There will be no additional intent element to our offence.
8:15 pm
Amendment 70 would require the Government to create and publish a code of practice for the courts on the use of deprivation orders under Section 153 of the Sentencing Act 2020 for those convicted of intimate image and similar offences. Sentencing, including decisions on what order to impose, is a matter for the independent courts, in line with relevant sentencing guidelines made by the Sentencing Council, which is independent of government.
We support the policy aim of the amendment, which is that victims are not further harmed by perpetrators being allowed to keep the images resulting from the offence. That is why we are amending the Sentencing Act to ensure that courts have the power to deprive offenders of any images created in connection with their conviction for this offence, as well as the hardware on which they may be stored. The courts already have this power in relation to sharing intimate images without consent, at Section 66B of the Sexual Offences Act, or sending a photograph or film of genitals, at Section 66A of that Act. We will also be ensuring that courts have the power in relation to taking an intimate image without consent when we introduce offences to tackle this behaviour in the Crime and Policing Bill. This will ensure parity across all the offences. To be clear, this power extends to any image that the offender owns. Beyond that, where images have been shared non-consensually on sites under the Online Safety Act regime, they can and should be removed.
I know the noble Baroness is keen to ensure that this measure is comprehensive and works in practice. I share that desire and I want to keep working with her on this issue. However, we are unable to support Amendment 70, because it would be constitutionally inappropriate for the Government to produce a code of practice for the judiciary to follow. The Sentencing Council is currently reviewing its guidance on ancillary orders, including deprivation orders, to improve its clarity and usefulness to sentencers. My department has passed the concerns about the use of deprivation orders for intimate image abuse to the Sentencing Council and we await the outcome of its review.
The noble Baroness has tabled an amendment criminalising the non-consensual creation of sexually explicit audio deepfakes. I particularly thank the noble Baroness, Lady Gohir, for raising this important issue, and I reassure her that the Government are considering this wider issue carefully. Offences relating to the abuse of sexually explicit audio material, real or deepfake, would be a wholly new area of law and would need to be considered carefully, including in relation to child sexual abuse material as well as material depicting adults. We are reviewing this area of law very carefully and I would be happy to meet with the noble Baroness and other Peers to discuss it further.
I thank once again the noble Baroness, Lady Owen, and her supporters, including victims’ organisations, for their tireless campaigning on these important matters. I reiterate that the Government are fully committed to providing victims with protection. By putting the manifesto commitment into effect with a broadly defined, consent-based offence, we are sending a clear signal that this behaviour is unacceptable and offenders will face justice.
With the caveat that, having moved Amendment 56A, I will in due course withdraw it, I beg to move.
My Lords, I shall speak to Amendments 69, 70 and 72. I declare my interest as a guest of Google at its Future Forum and AI policy conference. I will also speak to government Amendments 56A, 74A and 77. I am grateful to the Government—particularly the Ministers, the noble Lord, Lord Ponsonby, and Sarah Sackman, who I know want to do the right thing by victim survivors—for taking the time to meet me and other noble Lords from across this House, and for the movement they have made in not pressing their own amendment.
I am so grateful for the offer to work together to put victim survivor experience at the heart of our legislation. As I have always advocated, a consent-based approach is the only approach that shows that the violation of a woman’s consent through the non-consensual creation of sexually explicit images and films is an act of abuse, regardless of a person’s motivation.
I am pleased that the Government have finally conceded that a woman’s consent is enough and, in doing so, will not press their amendments. I turn first to Amendment 69, in the names of the noble Lords, Lord Browne of Ladyton Lord Clement-Jones, and the noble Baroness, Lady Kidron. In doing so, I thank them for their steadfast and unwavering support.
I understand that the Government wish to bring forward their own amendment in time for Third Reading, I need to get absolute assurances from the Minister that it would be consent-based, as he has confirmed, cover solicitation, use the same definition of “an intimate state” as in the pre-existing sharing offence, that the limitation of time under the Magistrates’ Court Act will be taken as the date on which the victim becomes aware that the content has been created, and not the date on which it was created, and that it will include clarity under the law that the content used for image-based abuse will have clear guidance under Section 153 of the Sentencing Code.
My Lords, I support everything the noble Baroness, Lady Owen, has said. I declare my interests as set out in the register. I will briefly speak on Amendment 72 about sexually explicit audio abuse, which I have raised a couple of times before.
I am concerned about why, now the Government know and are aware that sexually explicit audio abuse is a thing, they do not want to act now. We have victims right now. Perpetrators are making these recordings and using them to threaten and blackmail. They share these recordings to shame their victims and to maintain power and control. In some communities where shame and honour are a thing, those victims are then at risk of honour-based abuse. With new technologies, you can create deepfake audio as well.
It feels like the Government are kicking this into the long grass. I welcome the Minister’s comments that this will be considered, but there seems to be no timetable; it could be years before action is taken. I wonder whether the Government are waiting for there to be more noise on the issue and for more victims to come forward before they take action. Why not nip this in the bud now? The Minister mentioned the crime and policing Bill. It would be good to know why, for example, it cannot be included in that. I hope that we can shut down this avenue of abuse now and prevent there being more victims.
My Lords, I will speak to Amendments 69 and 70, to which I have added my name. I support the other amendments in the group, but I will leave others to speak to them because they own them. I do not think my noble friend the Minister wishes me to support his amendment, given what he has told us.
I take this opportunity to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, whose campaigning on these issues has been a model of its kind. She has brought not only passion and commitment but astonishing forensic scrutiny to bear on them. She is to be commended for getting us to the place we are in today. I hope my noble friend the Minister will help her get to the destination she has set for us, which is the appropriate destination for this legislation.
The noble Baroness also brought me and others into contact with victims and survivors of this appalling sexual abuse and those who support them, which has been an extraordinary privilege too. Mostly young women, they are immensely impressive in the way they have worked together. Almost all of the many thousands of victims there have already been of this appalling abuse have been extraordinarily well represented.
I also thank those who have supported them. I will pick out Professor Clare McGlynn KC of Durham University and read part of the briefing paper that she produced for this occasion. I hope that all noble Lords who wish to participate in this debate have seen it. I know it has had a significant effect on people; I will not mention who they are, but I know that when they read it they were significantly affected by it.
8:30 pm
At one point in the discussions there was some suggestion that no crime was committed until the created images were known about, shared or seen. Professor McGlynn makes the case that image creation without consent—non-consensual being the crime—is a significant cause of the harm done by this appalling behaviour. I will read from pages 5 and 6 of the briefing paper. I will read as little as possible, but this passage is so overwhelmingly persuasive that I want to read it:
“Non-consensual creation violates a person’s sexual autonomy and dignity. The creator decides how the person appears, talks, and acts in sexually explicit ways that deeply affects an individual’s personal integrity and dignity … Victims experience the creation of sexually explicit deepfakes as a sexual assault … Creation of sexually explicit deepfakes is experienced as a threat: the image is the threat. A digital image/video can instantly and easily be shared whether accidentally, maliciously, or through hacking … Threat of being deepfaked pervades the lives of women and girls: The easy creation and prevalence of deepfake image-based abuse material is experienced as an ever-present threat pervading women’s lives, with young women in particular expressing a palpable sense of despair at the lack of control over their identities and sexual autonomy”.
I also find myself in the happy position of being able to praise my noble friends on the Front Bench and those who advise them in much the same terms—although I do not always agree with them. They have been extremely responsive and given of their time generously to me and to many other noble Lords over the last few weeks. They have listened and shown a willingness not merely to hear concerns but to act on them. The test, of course, will be at the end of this debate as to whether those actions are sufficient for us to move to the next stage of concluding this.
20 of 170 shown
We have listened carefully in engaging with noble Lords across the House and considered additional evidence, and we agree that this consent-based approach is the right one to protect victims from abuse. The harm to victims of this behaviour cannot be underestimated. A consent-based offence sends a clear message that we want to stamp out the inexcusable creation of intimate deepfakes at its root.
We have also heard the concerns about what types of images it will be criminal to create. If the noble Baroness works with us, our proposed government amendment will define which images are captured by reference to Sections 66D(5) to (9) in the wider intimate image abuse framework, and will therefore cover the creation of the same types of images as covered by the sharing and proposed taking intimate images offence. This means that it will be a criminal offence to create, take or share an image that shows or appears to show someone engaged in sexual acts, or where the most intimate parts of the body are exposed or covered with underwear. It will mean that criminals cannot escape justice by altering images so that intimate parts of the body appear to be covered with emoji symbols or pictures. We are clear that this behaviour is unacceptable and should be criminal.
We are aware of concerns about overcriminalisation, particularly in relation to children, so that they are not unnecessarily brought into the criminal justice system. That is why we will be working closely with the Department for Education to tackle misogyny at every level. This will be critical to achieving our commitment to halve violence against women and girls, for which we will pull every lever to shift behaviour towards women.
We will also be including in our amendment a defence of reasonable excuse. The government amendment will be tech neutral, meaning that it is future-proofed if there are new ways to create hyperrealistic, sexually explicit likenesses in the future.
The Government have also heard, and agree with, the aim of the noble Baroness’s amendment to criminalise asking someone to commit the offence for you, regardless of where they are located and whether the image is then created. Existing law means that, once the creation of a sexually explicit deepfake without consent is an offence, it will automatically be an offence to encourage or assist someone to commit this offence in England and Wales under the Serious Crime Act 2007.
These inchoate offences apply to almost all criminal offences, but we share Peers’ concern about the need to ensure that this can apply if the request is made of any creator anywhere in the world. We are carefully considering how best to give effect to that, but bespoke “encouraging” offences are very rare and there is a serious risk of unintended consequences for wider areas of the criminal law. I want to be clear that we will be ensuring that the criminal law covers this behaviour. We will be developing provisions at pace, and want to work with the noble Baroness and her co-sponsors as we do that.
I cannot commit to the final proposals being brought forward at Third Reading. However, I will provide an update at Third Reading on when and how we expect to bring these specific measures forward. If they are inserted into the Bill in the House of Commons, they will of course return to this House for further consideration. The new government amendments will effectively protect victims and bring offenders to justice. Together with existing law and our new taking and installing offences in the Crime and Policing Bill, we will have a holistic package of offences to address intimate image abuse.
If I cannot have absolute assurance from the noble Lord, I am motivated to test the opinion of the House, because a deepfake offence without the inclusion of solicitation will not be holistic. Amendment 69 vitally includes the solicitation of this content in order to close the gaps in the law and ensure that it cannot be circumnavigated by asking someone else in another jurisdiction where they have not yet legislated to create the content for you. It makes it an offence to solicit the content whether or not the creation happens. This vitally reflects the borderless nature of the internet and ensures that those in the UK who seek to abuse women by circumnavigating the proposed law will be held accountable.
Anyone who has had to witness their clothed images being touted on these sites dedicated to abuse will be subject to enormous fear and forced to live under the threat that the creation of sexually explicit content could happen at any moment. I would be grateful for the Minister’s absolute assurance that this will be part of the Government’s new amendment that they will bring at Third Reading and that it will be a consent-based solicitation offence. Without the inclusion of solicitation, we will be left with a gaping omission in our legislation.
My amendment uses the definition of “an intimate state” from Sections 66D(5), (6) and (7) of the Sexual Offences Act 2003 in order to have consistency with the pre-existing sharing laws. Unlike with the government amendment, victims will not have two separate definitions to contend with, depending on whether their image has been created or shared or both. I would just like a final reassurance from the Minister that this will be the definition.
My amendment clearly states in relation to Section 127(1) of the Magistrates’ Court Act 1980 on the limitation of time that the date on which the matter of complaint arose will be taken as the date on which the victim becomes aware of the content, as opposed to the date on which the perpetrator created the content. I need assurance from the Minister that their proposed amendment would do the same, so women are not inadvertently timed out of seeking justice. This issue was highlighted to me by campaigners at #NotYourPorn.
I turn now to Amendment 70 on the deletion of data used to perpetrate intimate image abuse. Following Committee, where I explained to the House that victims were being retraumatised by their abusers still being in possession of sexually explicit content of them following successful prosecution, I was very disheartened by the government response that no action was necessary due to Section 153 of the Sentencing Act 2020. I believe clarity under the pre-existing law is essential in order to avoid situations where victims are left traumatised and in a state of anxiety by their abusers keeping their intimate images.
However, I am very pleased that, following my amendment, the Government have had a change of heart. I understand that they are now willing to commit to amending the deprivation order powers of Section 153 of the Sentencing Code 2020 to ensure that courts can apply the orders to images and videos relating to the conviction of this offence, and any hardware. I would need the Minister’s assurance that it would also include physical copies and those held on any device, cloud-based programmes, digital messaging or social media platforms that the perpetrator controls. I would also like the commitment that this will be applied to the other pre- existing intimate image abuse offences, as my amendment did.
I turn to Amendment 72, which is in my name and those of the noble Baroness, Lady Gohir, and the noble Lord, Lord Clement-Jones. The noble Baroness, Lady Gohir, has previously highlighted to the House the growing problem of audio abuse. It is easy to envisage that, in only a short space of time, we could very realistically be in the same place on audio abuse as we are with sexually explicit deepfakes, as less data is required to create high-quality audio. This has the potential to be weaponised to yet again abuse women. We have the chance now to be proactive. I hope the Government, if they are not prepared to commit to it now, will take it seriously in their upcoming justice Bill.
As I have set out, I am extremely grateful for the Minister’s movement on these issues. I know that it is not straightforward to produce complex amendments at speed and I know the Minister is committed to getting the details right in this vital legislation. I expect the Government to provide an undertaking to bring amendments back at Third Reading to address this issue. Unless I receive reassurances that such amendments will address all the issues in the manner I have set out, I will test the opinion of the House. If I receive the reassurances that I am looking for today but, for any reason, the Government do not follow through with them at Third Reading, I reserve the right to bring back my own amendment covering all the elements I have raised on this important issue. I look forward to hearing from the Minister.