Data (Use and Access) Bill [HL]

Baroness Owen of Alderley Edge Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, with the leave of the House, I will also speak to Amendments 54 to 74 and 79.

We all agree that tackling the abuse of intimate image deepfakes is incredibly important. I am delighted that these provisions are returning to this House, having been strengthened in the other place, enabling us once again to discuss this key issue. I extend my heartfelt thanks to the noble Baroness, Lady Owen, for her dedication on this issue. I am also grateful to the noble Lords, Lord Pannick—who unfortunately is not in his place—and Lord Clement-Jones, and others who have generously given much of their time to discussing this issue with me. Their engagement with me and my ministerial colleagues has been instrumental as we have refined our approach to this important topic. It has been a fantastic example of parliamentarians working across the House to get policy in the strongest possible position.

At Third Reading I committed that the Government would bring forward further amendments in the Commons, including on solicitation and time limits. We have delivered on those commitments. I will begin with Commons Amendment 56, which introduces the requesting offence. This addresses the commitment made on solicitation. It replaces, but builds on and delivers the same intent as, the amendment that your Lordships made to the Bill. It comprehensively criminalises asking someone to create a deepfake intimate image for you without the consent of the person in the image or the reasonable belief in their consent. This is an offence regardless of where the person you are asking is based or whether the image was in fact created.

I turn to the commitment on time limits. Commons Amendment 63 was passed to extend the statutory time limit so that prosecutions can be brought at any date that is both within six months of when sufficient evidence comes to the prosecutor’s knowledge and within three years of when the offence was committed. This means that perpetrators will not get away with creating or requesting the creation of a deepfake just because no one knew about it at the time.

A further change was made in the Commons through Commons Amendment 55, to add a defence of reasonable excuse to both the creating and requesting offences. I know that this is likely to be the subject of much debate today, so I will spend some time setting out the Government’s position.

First, I want to reassure the House that the Government’s priority is to create comprehensive, robust defences which ensure that perpetrators cannot evade justice. It is not our intention that the defences provide defendants with a get-out clause, and we do not believe that they do so. This is especially important to stress for the creation of sexual deepfakes, which are so extraordinarily harmful. In our view, it is extremely unlikely that there will ever be a situation where someone creating a sexually explicit deepfake will be able to prove that they had a reasonable excuse. Indeed, we anticipate that the defences would apply only in an extremely narrow set of circumstances, such as for covert law enforcement operations.

It is also our view that, for a very small minority of cases, such as the creation of genuinely satirical images that are not sexually explicit, the defence to the creating offence is legally necessary for it to be compatible with Article 10 of the European Convention on Human Rights. Without the “reasonable excuse” defence, we consider that the creating offence will not be legally robust, and that any legal challenge to its compatibility with Article 10 is likely to be successful. This will not provide the best protection for the victims. Let me labour this very important point: our intention is to create comprehensive, robust offences that will ensure that those who create or request intimate deepfake images without consent, particularly sexual deepfake images, face grave consequences.

I also want to stress that abusers will not be able to evade justice by using spurious excuses. The defendant must provide enough evidence to prove that the creation, or that particular request, without consent was reasonable. They cannot just say it is art or satire without sufficient compelling evidence. It will be for the court, not the defendant, to decide whether something is in fact art or satire. From my many years as a magistrate, I can also reassure the House that it is simply not the case that a defendant can offer up any excuse and assert that it is reasonable. The CPS will challenge spurious arguments, and the courts are extremely well equipped and used to dealing with such arguments quickly.

The Government share the House’s desire to ensure that criminal law, and these defences in particular, work as well as the Government intend. I therefore speak to support the noble Baroness’s Amendments 55E and 56B, which place a binding obligation on the Government to review the operation of the “reasonable excuse” defence, for both the creating and requesting offences, by putting it in the Bill. As part of this review, we will carry out targeted engagement with external stakeholders and subject matter experts to ensure that we make a broad and informed assessment of the defence.

I hope this addresses the concerns about these defences. The best way to protect victims is to ensure that Parliament passes legally sound and robust offences that can bring perpetrators to justice. I urge the House to do that by supporting Motion 55C and Amendment 56B. I beg to move.

[Baroness Owen of Alderley Edge (Con)]

My Lords, I speak to my amendments in this group. In doing so, I declare my interest as a guest of Google at its AI policy conference.

I start by thanking both the Minister and Minister Davies-Jones for taking the time to engage on this issue and for their endless patience. I know they have worked incredibly hard to secure progress on this and I am very grateful for their efforts.

We are down to the issue of whether we believe a person can have a reasonable excuse to create content that looks like a photograph or film of another person without their consent. Noble Lords will recall that this House overwhelmingly indicated that we did not believe “reasonable excuse” should be included as a defence and highlighted concern that it may be misinterpreted or viewed too widely.

I have concerns over the position the Government outlined in their letter from Minister Bryant to the Joint Committee on Human Rights. Minister Bryant argues that the inclusion of “reasonable excuse” is necessary as, without it, the offence would breach the ECHR due to limiting a person’s freedom to create photorealistic satirical art of scenarios such as a person on the toilet or in boxer shorts. Additionally, the Government argued the need for tech companies to be able to red team against this offence.

I share the Government’s strong desire that we do not want this Bill to have a memorandum on it warning that it may breach the ECHR, however precarious the arguments laid out may be. I do not want those who abuse women in this way to claim the prosecution may contravene their human rights.

With this in mind, I turn to my first amendments, Amendments 55C and 56B, written in conjunction with the Government, which offer a review of the implementation of “reasonable excuse” for both the creation and requesting offences after two years. I am grateful to the Minister for the compromise. He will know the conflicts I feel about this issue and the great concern I have that, without guardrails, “reasonable excuse” may be used to allow those who abuse others in this sickening way to escape justice.

I know the Minister will offer me reassurance that the courts will be used to hearing precarious excuses. However, my concern—as noble Lords know—is that image-based sexual abuse has been consistently misunderstood, with the Law Commission itself only arguing three years ago that the harm from creating non-consensual sexually explicit content was not serious enough to criminalise. In 2023, Refuge found that, despite steady year-on-year increases in recorded offences for image-based abuse, only 4% of offenders were charged. Even when a conviction was achieved, only 3% of cases resulted in the perpetrator being deprived of the images used for the offence.

We have seen consistent failure by prosecutors to understand and tackle the issue. I therefore have a very real concern that, by allowing “reasonable excuse” to sit in this offence, we risk it being misunderstood and the offence being undermined. Further, while I am grateful for the offer of a review, I am worried that if after two years we find “reasonable excuse” is allowing perpetrators to evade justice, there will not be a legislative vehicle in which to correct the issue, and the time it takes to correct may be lengthy. I would be grateful if the Minister could offer me reassurance on this point.

Additionally, I am concerned by the very premise of the argument that legislation without “reasonable excuse” would breach the ECHR. I have sought the legal counsel of the noble Lord, Lord Pannick, KC—who apologises for not being here this evening—and he believes that the inclusion of “reasonable excuse” in the defence is not necessary in order to be compliant with the ECHR.

The noble Lord, Lord Pannick, advised, as the Joint Committee on Human Rights already highlighted in its letter, that

“the Government has stated that prosecutorial discretion is sufficient to ensure that an offence that could violate a qualified right under the ECHR is nevertheless compliant with it”.

Additionally, all legislation must, so far as possible, be read and given effect to in a manner that is compliant with the ECHR, according to Section 3 of the Human Rights Act 1998. So, even if there were to be a prosecution in the sort of circumstances contemplated by the Government, the defendant could rely on their Article 10 rights, which means that an all-encompassing reasonable excuse is not necessary.

Additionally, I would be grateful if the Minister could outline to the House the reasons why tech companies cannot red team by prompting with the images of people who do consent and, therefore, not requiring a reasonable excuse, should their model fail and end up creating the content that it is trying to avoid. I would go as far as to say that testing prompts on a model using the image of a person who does not consent would be deeply unethical. It is my belief—and the view of the noble Lord, Lord Pannick, and the noble Baroness, Lady Chakrabarti—that such specific examples do not justify general reasonable excuse. To quote my friend and human rights advocate, the noble Baroness, Lady Chakrabarti:

“Spurious ECHR arguments for weakening 21st century cyber sex offences do not help the cause of those seeking to defend human rights from its many detractors”.

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Moved by

[Baroness Owen of Alderley Edge]

55C: Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 55, and do propose Amendments 55D and 55E in lieu—

55D: Clause 141, page 174, line 26, at end insert—
“(7A) It is a defence for a person charged with an offence under this section to prove that the person had a reasonable excuse for creating the purported intimate image.”

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Moved by

[Baroness Owen of Alderley Edge]

56B: After inserted subsection (9) insert—
“(10) The Secretary of State must—
(a) review the operation of subsection (7),
(b) publish the outcome of the review in a report before the end of the period of two years beginning with the day on which this section comes into force, and
(c) lay the report before Parliament.”