Contribution
I am always delighted to meet with the noble Viscount.
Through these amendments, the noble Baroness wishes to create a statutory register of non-consensual intimate images and hashes. Once again, I commend the intention behind the amendments, but I believe that they will lead to duplication of work that I can confirm is already taking place. Organisations such as the Revenge Porn Helpline play a vital role in detecting and removing non-consensual intimate image abuse. That organisation has in place a database of existing hashes of non-consensual images that are shared with participating companies to detect and remove the images from circulation online.
Furthermore, in March this year, Ofcom published its first codes of practice for the Online Safety Act regulatory regime, which set out a range of measures that platforms should implement to tackle non-consensual intimate image abuse. Ofcom is currently reviewing consultation responses on new measures for the codes, which include measures for platforms to use scanning technology to detect intimate images by matching them against appropriate databases of digital fingerprints or hashes of such images. I reassure the noble Baroness that finalised measures will be published in due course.
Amendments 295BE to 295BG, 295BJ, 298A, 299A and 300B all share the purpose of expanding all intimate image offences to include real and purported audio recording of those in an intimate state. The noble Baroness, Lady Gohir, spoke powerfully about the need for this. However, the Government cannot accept these amendments for two reasons. The first is the difficulties in proving such offences, and the second is that we consider that the harm in question is covered in the main by existing offences.
As far as proof is concerned, it is a general truth that being able to identify voices is a great deal more problematic than identifying images. Awkward and possibly embarrassing though this is to be considering in your Lordships’ Committee in the middle of the working day, a few moments’ thought about the kinds of sounds recorded, given the context, will illustrate some of the difficulties. First, it would be difficult for tribunals of fact, whether magistrates, judges or juries, to determine whether the recorded audio is or purports to be that of a particular person. Secondly, the proposed definition of an intimate audio recording as one “which a reasonable person considers sexual in nature” might be hard to determine from the audio alone. In short, there are concerns about how this could be proved to the criminal standard.
In this context, I refer back to the point I made earlier: the law must be clear and enact only offences that are capable of enforcement. The Government have looked at this closely and seriously, and we have tried to identify cases where intimate audio abuse is alleged. It is our view that there does not appear to be a large number of cases where this happens in isolation. Instead, the reason for the audio abuse is usually to blackmail or harass someone. Both are criminal offences already, with blackmail carrying a significant maximum penalty of 14 years imprisonment. If we are wrong about this, I know that the noble Baroness has said that she will share further evidence with me, and I am sure that this will also apply to the noble Baroness, Lady Gohir. I am happy to discuss this issue further with both of them.
Amendment 295BH seeks to define “taking” for the purposes of the new intimate image-taking offences. In our recent meeting, following the question the noble Baroness raised at Second Reading, I confirmed to her that the proposed “taking” offences as currently defined would not include screenshots, but I understand the harm that the noble Baroness seeks to prevent, and I have asked officials to look at this issue closely. I hope to provide a further update on Report.
Amendment 295C, tabled by the noble Lords, Lord Cameron of Lochiel and Lord Davies of Gower, seeks to amend the base offence set out in Schedule 9. This applies where an image of a person under 16 in an intimate state is taken or recorded for the purposes of medical care or treatment. The noble Lord’s amendment recognises the need for the medical exemption, but it would remove the age restriction to prevent the criminalisation of those taking or recording intimate images of a person of any age. Section 5 to the Mental Capacity Act 2005 already provides for specific medical exemptions in cases where an intimate image is taken of someone over 16. I hope the noble Lord will agree that it is therefore unnecessary to extend the provision in this Bill.