Lord Clement-Jones:

Moved by Lord Clement-Jones

264A: Clause 160, page 138, line 10, at end insert “including (but not necessarily) by making use of a stolen identity, credit card or national insurance number,”Member’s explanatory statementThis amendment, together with the amendment to page 138, line 12 to which Lord Clement-Jones has added his name, seeks to probe the creation of a specific criminal offence of identity theft.

My Lords, even by the standards of this Bill, this is a pretty diverse group of amendments. I am leading the line with an amendment that does not necessarily fit with much of the rest of the group, except for Amendment 266, which the noble Baroness, Lady Buscombe, will be speaking to. I look forward to hearing her speak.

This amendment is designed to probe the creation of a new offence of identity theft in Clause 160. As I argued in my evidence to the consultation on digital identity and attributes in 2021, a new offence of identity theft is required. Under the Fraud Act 2006, the Identity Documents Act 2010, the Forgery and Counterfeiting Act 1981, the Computer Misuse Act 1990 and the Data Protection Act 2018 there are currently the offences of fraud using a false identity, document theft, forging an identity, unauthorised computer access and data protection offences respectively, but no specific crime of digital identity theft.

I was strongly influenced by the experience of the performer Bennett Arron, the award-winning writer and stand-up comedian, who had his digital ID stolen over 20 years ago and, as a result, became penniless and homeless. I think he was the first major victim of identity theft in the UK. Years later, he wrote a comedy show, surprisingly, about his experience. It is a disturbingly true yet funny account of what it is like to have your identity stolen. It was critically acclaimed—I know the Minister will appreciate this—at the Edinburgh festival and led to Bennett being asked to direct a documentary for Channel 4 Television. In the documentary, “How to Steal an Identity”, Bennett proved, through a series of stunts, how easy the crime of ID theft is to carry out. He also managed to steal the identity of the British Home Secretary—I am not sure which one; that needs further investigation. As he says, having something tangible stolen—your phone, a bike or a car—is awful and upsetting. However, they are replaceable, and their loss is unlikely to affect your whole life. Having your identity stolen is different: you will have great difficulty in restoring it, and the consequences can affect you for ever. He went on to describe his experiences.

Interestingly enough, the ICO has published guidance on identity theft. It says:

“Your identity is one of your most valuable assets. If your identity is stolen, you can lose money and may find it difficult to get loans, credit cards or a mortgage. Your name, address and date of birth provide … information”, and an

“identity thief can use a number of methods to find out your personal information and will then use it to open bank accounts, take out credit cards”, et cetera, in your name. The guidance goes on to talk about what signs you should look for and what you should do in the event of identity theft. However, effectively, it says that all you can do if some documents are stolen is tell the police; it does not tell you whether the police can do anything about it. All the guidance does is suggest that you report physical documents as having been stolen.

I have asked many questions of the Government, who, in response to the consultation on digital identity, proved stubbornly reluctant to commit to creating a new offence. It is not at all clear why. I am just sorry that the noble Baroness, Lady Morgan, is not here. She chaired the Select Committee and its terrific report Fighting Fraud: Breaking the Chain, which said:

“Identity theft is a fundamental component of fraud and is routinely used by fraudsters to steal money from legitimate individuals and organisations yet it remains out of scope of criminal offences”.

Its recommendation was:

“The Government should consult on the introduction of legislation to create a specific criminal offence of identity theft. Alternatively, the Sentencing Council should consider including identity theft as a serious aggravating factor in cases of fraud”.

In their response, the Government said:

“We agree that identity theft is a vector”— that is a great word—

“used by fraudsters to commit fraud, but current legislation provides an effective avenue to prosecute those committing identity frauds”.

That is absolutely not the case. I look forward to what the Minister says about that, but I believe that there is a case for including an identity-theft offence both in the Bill and, later, when we come to the Data Protection and Digital Information Bill, where there will be an even stronger case for it to be included.

I will not be able to wind up on this group because I am speaking to this amendment, but I strongly support my noble friend’s Amendments 268AZB and 268AZC. I believe that the Law Commission’s intention was very much to create a high bar for the offence of encouragement of self-harm. It says:

“Our aim is only to criminalise the most serious examples of encouragement of self-harm”.

However, out there, a lot of the support organisations are worried about the broadness of the offence. They are concerned that it risks criminalising peer-support and harm-reduction resources, and that it may also criminalise content posted by people in distress who are sharing their own experiences of self-harm. That is why I support the amendment that my noble friend will speak to. I beg to move.

My Lords, I shall speak to Amendments 266 and 267, to which my noble and learned friend Lord Garnier, my noble friend Lord Leicester and the noble Lord, Lord Clement-Jones, have added their names. They are the final two amendments from a group of amendments that were also supported by the noble Lord, Lord Moore of Etchingham, and the noble Baroness, Lady Mallalieu.

The purpose of this Bill is to make the internet a safer place. The new offence of false communications is just one of the important means it seeks to use with the objective of making it an offence to harm people by telling lies online—and this is welcome. It is right that the Bill should focus on preventing harms to individuals. One of the most important guarantors that a person can have of good health and well-being is their freedom to pursue their livelihood unimpeded by illegitimate hostile action. Attacks on people’s livelihoods have the potential to wreak unimaginable harm on their mental and physical health, but these attacks are also among the easiest to perpetrate through the internet. My amendments seek to prevent such harms by protecting people who run, or work for, businesses that have been targeted with malicious fake reviews posted to online platforms, such as Google Maps or TripAdvisor. These platforms already fall within scope of this Bill in hosting user-generated content.

By referencing fake reviews, I am not referring to legitimate criticism, fair comment or even remarks about extraneous matters such as the owners’ pastimes or opinions, provided that the reviewer is honest about the nature of their relationship with the business. If someone wants to write a review of a business which they admit they have never patronised, and criticise it based on such factors, this would not be illegal, but it would very likely breach the platform’s terms of service and be removed. Review platforms are not the proper venue for such discussions; their role is to let people share opinions about a business’s products and services, but policing that is up to them.

The malicious fake reviews that I am referring to are those that are fundamentally dishonest. People with grudges to bear know that the platforms they use to attack their victims will remove any reviews that are clearly based on malice rather than a subjective assessment of quality. That is why they have come to adopt more insidious tactics. Without mentioning the real reason for their hostility towards a business and/or its staff, they purport to be customers who have had bad experiences. Of course, in almost every case, the reviewer has never so much as gone near the business. The review is therefore founded on lies.

This is not merely an abstract concern. Real people are being really harmed. Noble Lords will know that in earlier debates I used the prism of rural communities to amplify the objective of my amendments. Only yesterday, during Oral Questions in your Lordships’ House, there was an overwhelming collective consensus that we need to do more to protect the livelihoods of those working so hard in rural communities. My simple amendments would make a massive difference to their well-being.

The Countryside Alliance recently conducted a survey that found innumerable instances of ideologically motivated fake reviews targeted at rural businesses; these were often carried out by animal rights extremists and targeted businesses and their employees who sometimes participated in activities to which they objected, such as hosting shoots or serving meat. In April this year, the Telegraph reported on one case of a chef running a rural pub whose business was attacked with fake reviews by a vegan extremist who had verifiably never visited the pub, based initially on the man’s objection to him having posted on social media a picture of a roast chicken. The chef said these actions were making him fear for his livelihood as his business fought to recover from the pandemic. He is supporting my amendments.

Amendment 266 would therefore simply add the word “financial” to “physical” and “psychological” in the Bill’s definition of the types of harm that a message would need to cause for it to amount to an offence. This amendment is not an attempt to make the Bill into something it was not designed to be. It is merely an attempt to protect the physical and mental health of workers whose businesses are at risk of attack through malicious fake reviews. It may be that the victim of such an attack could argue that a fake review has caused them physical or psychological harm, as required under the Bill as currently drafted—indeed, it would likely do so. The reason for adding financial harm is to circumvent the need for victims to make that argument to the police, the police to the Crown Prosecution Service and then the prosecutors in front of the jury.

That links to Amendment 267, which would enlarge the definition of parties who may be harmed by a message for it to an amount to an offence. Under the Bill, a message must harm its intended, or reasonably foreseeable, recipient; however, it is vital to understand that a person need not receive the message to be harmed by it. In the case of fake reviews, the victim is harmed because the false information has been seen by others; he or she is not an intended recipient. The amendment would therefore include harms to the person or organisation to which the information—or, in reality, disinformation—contained within it relates.

My principal objective in bringing these amendments is not to create a stick with which to beat those who wish harm to others through malicious fake reviews; rather—call me old-fashioned—it is about deterrence. It is to deter this conduct by making it clear that it is not acceptable and would, if necessary, be pursued by police and through the courts under criminal law. It is about seeing to it that malicious fake reviews are not written and their harm is not caused.

I am aware that the Government have responded to constituents who have contacted their MPs in support of these amendments to say that they intend to act through the Competition and Markets Authority against businesses that pay third parties to write fake disparaging reviews of their competitors. I must stress to my noble friend the Minister, with respect, that this response misunderstands the issue. While there is a problem with businesses fraudulently reviewing their competitors to gain commercial advantage—and it is welcome that the Government plan to act on it—I am concerned with extreme activists and other people with ideological or personal axes to grind. These people are not engaged in any relevant business and are not seeking to promote a competitor by comparison. It is hard to see how any action by the Competition and Markets Authority could offer an effective remedy. The CMA exists to regulate businesses, not individual cranks. Further, this is not a matter of consumer law.

If the Government wish to propose some alternative means of addressing this issue besides my amendments, I and those who have added their names—and those who are supporters beyond your Lordships’ House—would be pleased to engage with Ministers between now and Report. In that regard though, I gently urge the Government to start any conversation from a position of understanding—really understanding—what the problem is. I fully appreciate that the purpose of this Bill is to protect individuals, and that is the key point of my amendments. My focus is upon those running and working in small businesses who are easy targets of this form of bullying and abuse. It is entirely in keeping with the spirit and purpose of the Bill to protect them.

Finally, I must be clear that the prism of what happens in our rural areas translates directly to everything urban across the UK. A practical difference is that people working in remote areas are often very isolated and find this intrusion into their life and livelihood so hard to cope with. We live in a pretty unpleasant world that is diminishing our love of life—that is why this Bill is so necessary.

My Lords, I wish to add to what my noble friend Lady Buscombe has just said, but I can do so a little more briefly, not least because she has made all the points that need to be made.

I would disagree with her on only one point, which is that she said—I am not sure that she wanted to be called old-fashioned, but she certainly wanted to have it explained to us—that the purpose of our amendment was to deter people from making malicious posts to the detriments of businesses and so forth. I think it is about more than deterrence, if I may say so. It is about fairness and justice.

It is very natural for a civilised, humane person to want to protect those who cannot protect themselves because of the anonymity of the perpetrator of the act. Over the last nearly 50 years, I have practised at the media Bar, including in cases based on the tort of malicious falsehood, trade libel or slander of goods. Essentially, my noble friend and I are trying to bring into the criminal law the torts that I have advised on and appeared in cases involving, so that the seriousness of the damage caused by the people who do these anonymous things can be visited by the weight of the state as the impartial prosecutor.

I say to my noble friend on the Front Bench that this is not just a complaint by those who like eating meat, those who earn a living through country pursuits or those who wish to expand their legal practices from the civil sphere to the criminal. It is a plea for the Government and Parliament to reach out and protect those who cannot help themselves.

Now, there will be evidential difficulties in getting hold of anonymous posters of malicious comments and reviews. It may be said that adding to the criminal law, as we would like to do through amending Clause 160, will interfere with people’s Article 10 rights. However, Article 10 does not permit you to make malicious and deliberately false remarks about others. Section 3 of the Defamation Act 2013, which provides for the defence of honest opinion, is not affected by the criminalisation of false and malicious posts about other people’s businesses or services.

We have a very simple remedy here, which goes with the grain of British fair play, the need for justice to be done and a Government who care for the people they govern, look after and make sure do not fall victim unwittingly and unknowingly—unknowingly in the sense that they do not know who is trying to hurt them, but they know what has happened to them because their profits, turnover and ability to feed their families have been grossly affected by these malicious, dishonest people. This amendment needs careful consideration and deserves wholehearted support across the House.

My Lords, as the noble Lord, Lord Clement-Jones, said, this is a very broad group, so I hope noble Lords will forgive me if I do not comment on every amendment in it. However, I have a great deal of sympathy for the case put forward by my noble friend Lady Buscombe and my noble and learned friend Lord Garnier. The addition of the word “financial” to Clause 160 is not only merited on the case made but is a practical and feasible thing to do in a way that the current inclusion of the phrase “non-trivial psychological” is not. After all, a financial loss can be measured and we know how it stands. I will also say that I have a great deal of sympathy with what the noble Lord, Lord Clement-Jones, said about his amendment. In so far as I understand them—I appreciate that they have not yet been spoken to—I am also sympathetic to the amendments in the names of the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Allan of Hallam.

I turn to my Amendment 265, which removes the word “psychological” from this clause. We have debated this already, in relation to other amendments, so I am going to be fairly brief about it. Probably through an oversight of mine, this amendment has wandered into the wrong group. I am going to say simply that it is still a very, very good idea and I hope that my noble friend, when he comes to reflect on your Lordships’ Committee as a whole, will take that into account and respond appropriately. Instead, I am going to focus my remarks on the two notices I have given about whether Clauses 160 and 161 should stand part of the Bill; Clause 161 is merely consequential on Clause 160, so the meat is whether Clause 160 should stand part of the Bill.

I was a curious child, and when I was learning the Ten Commandments—I am sorry to see the right reverend Prelate has left because I hoped to impress him with this—I was very curious as to why they were all sins, but some of them were crimes and others were not. I could not quite work out why this was; murder is a crime but lying is not a crime—and I am not sure that at that stage I understood what adultery was. In fact, lying can be a crime, of course, if you undertake deception with intent to defraud, and if you impersonate a policeman, you are lying and committing a crime, as I understand it—there are better-qualified noble Lords than me to comment on that. However, lying in general has never been a crime, until we get to this Bill, because for the first time this Bill makes lying in general—that is, the making of statements you know to be false—a crime. Admittedly, it is a crime dependent on the mode of transmission: it has to be online. It will not be a crime if I simply tell a lie to my noble and learned friend Lord Garnier, for example, but if I do it online, any form of statement which is not true, and I know not to be true, becomes a criminal act. This is really unprecedented and has a potentially chilling effect on free speech. It certainly seems to be right that, in your Lordships’ Committee, the Government should be called to explain what they think they are doing, because this is a very portentous matter.

The Bill states that a person commits the false communications offence if they send a message that they know to be false, if they intend the message to cause a degree of harm of a non-trivial psychological or physical character, and if they have no reasonable excuse for sending the message. Free speech requires that one should be allowed to make false statements, so this needs to be justified. The wording of the offence raises substantial practical issues. How is a court meant to judge what a person knows to be false? How is a committee of the House of Commons meant to judge, uncontroversially, what a person knows to be false at the time they say it? I say again: what is non-trivial psychological harm and what constitutes an excuse? None of these things is actually defined; please do not tell me they are going to be defined by Ofcom—I would not like to hear that. This can lead to astonishing inconsistency in the courts and the misapplication of criminal penalties against people who are expressing views as they might well be entitled to do.

Then there is the question of the audience, because the likely audience is not just the person to whom the false statement is directed but could be anybody who subsequently encounters the message. How on earth is one going to have any control over how that message travels through the byways and highways of the online world and be able to say that one had some sense of who it was going to reach and what non-trivial psychological harm it might cause when it reached them?

We are talking about this as if this criminal matter is going to be dealt with by the courts. What makes this whole clause even more disturbing is that in the vast majority of cases, these offences will never reach the courts, because there is going to be, inevitably, an interaction with the illegal content duties in the Bill. By definition, these statements will be illegal content, and the platforms have obligations under the Bill to remove and take down illegal content when they become aware of it. So, the platform is going to have to make some sort of decision about not only the truth of the statement but whether the person knows what the statement is, that the statement is false and what their intention is. Under the existing definition of illegal content, they will be required to remove anything they reasonably believe is likely to be false and to prevent it spreading further, because the consequences of it, in terms of the harm it might do, are incalculable by them at that point.

We are placing a huge power of censorship—and mandating it—on to the platforms, which is one of the things that some of us in this Committee have been very keen to resist. Just exploring those few points, I think my noble friend really has to explain what he thinks this clause is doing, how it is operable and what its consequences are going to be for free speech and censorship. As it stands, it seems to me unworkable and dangerous.

Does my noble friend agree with me that our courts are constantly looking into the state of mind of individuals to see whether they are lying? They look at what they have said, what they have done and what they know. They can draw an inference based on the evidence in front of them about whether the person is dishonest. This is the daily bread and butter of court. I appreciate the points he is making but, if I may say so, he needs to dial back slightly his apoplexy. Underlying this is a case to be made in justice to protect the innocent.

I did not say that it would be impossible for a court to do this; I said it was likely to lead to high levels of inconsistency. We are dealing with what is likely to be very specialist cases. You can imagine this in the context of people feeling non-trivially psychologically harmed by statements about gender, climate, veganism, and so forth. These are the things where you see this happening. The idea that there is going to be consistency across the courts in dealing with these issues is, I think, very unlikely. It will indeed have a chilling effect on people being able to express views that may be controversial but are still valid in an open society.

My Lords, I want to reflect on the comments that the noble Lord, Lord Moylan, has just put to us. I also have two amendments in the group; they are amendments to the government amendment, and I am looking to the Minister to indicate whether it is helpful for me to explain the rationale of my amendments now or to wait until he has introduced his. I will do them collectively.

First, the point the noble Lord, Lord Moylan, raised is really important. We have reached the end of our consideration of the Bill; we have spent a lot of time on a lot of different issues, but we have not spent very much time on these new criminal offences, and there may be other Members of your Lordships’ House who were also present when we discussed the Communications Act back in 2003, when I was a Member at the other end. At that point, we approved something called Section 127, which we were told was essentially a rollover of the dirty phone call legislation we had had previously, which had been in telecoms legislation for ever to prevent that deep-breathing phone call thing.

It went through almost on the nod, and then it turned out to become a very significant offence later. Noble Lords may be aware of the Twitter joke trial, the standout trial that people have followed, where an individual was prosecuted for saying something on Twitter which was originally taken very seriously as a bomb threat. Later, on appeal, the prosecution was found to be invalid. The debate around Section 127 and its usage has gone backwards and forwards.

There is a genuine question to be asked here about whether we will be coming back in a few years and finding that this offence has been used in ways that we were not expecting or intending. I think we all know what we are trying to get at: the person who very deliberately uses falsehoods to cause serious harm to others. That has been described by the noble Baroness, Lady Buscombe, and the noble and learned Lord, Lord Garnier. However, you can see how the offence could inadvertently capture a whole load of other things where we would either collectively agree that they should not be prosecuted or have quite different opinions about whether they should be prosecuted.

I used to sit in judgment on content at a platform, and people would often say to us, “Why are you allowing that content? It’s false”. We would say, quite rightly, that we had no terms of service that say you cannot lie or issue falsehoods on the platform. They would say, “Why not?”, and we would dig into it and say, “Let’s just deal with some falsehoods”. For example, “The earth is flat”—I think most of us would agree that that is false, but it is entirely harmless. We do not care; it is a lie we do not care about. What about, “My God is the only true God”? Well, that is an opinion; it is not a statement of fact—but we are getting into a zone that is more contested. As for, “Donald Trump won the election”, that is an absolute and outright lie to one group of people but a fundamental issue of political expression for another. You very quickly run into these hotly contested areas. This is going to be a real challenge.

We have often talked in this debate about how we are handing Ofcom a really difficult job across all the measures in the Bill. In this case, I think we are handing prosecutors a really difficult job of having to determine when they should or should not use the new offence we are giving them. I think it will be contested, and we may well want to come back later and look at whether it is being used appropriately. I am sure the noble Baroness, Lady Fox, will have something to say about this.

If we do anything, we should learn from previous experiences. I think everyone would agree that Section 127 of the Communications Act 2003, which has been in place for 20 years, has not been an easy ride. We have moved our view on that around considerably. One good thing is that these new offences replace it—we are replacing this thing we rushed through then with a different version—but we need to test very carefully whether we have got it right.

Moving away from that offence to the new offence of the encouragement of self-harm, which the Minister will introduce shortly, I have two amendments which are quite different from each other, and I want to explain each of them. The first, Amendment 268AZC, seeks to test the threshold for prosecutions under this offence—so, again, it is about when we should or should not prosecute. It follows concerns raised by my noble friend Lord Clement-Jones. Legitimate concerns have been raised by a coalition of about 130 different individuals and organisations supporting survivors of self-harm. The question, really, is what the Government’s intention is. I hope the Minister can put something on the record which will be helpful later in terms of the Government’s intention for where the threshold should lie.

We can see clear instances where somebody maliciously and deliberately encourages self-harm. There are other issues around the way in which systems encourage self-harm, which I think are tackled in other parts of the Bill, but here we are talking about an individual carrying out an action which may be prosecuted. We can see those people, but there is then a spectrum: people who support victims of self-harm, people who provide educational and support materials—some of which might include quite graphic descriptions—people who run online fora, and indeed the individuals themselves who are posting self-harm content and documenting what they have done to themselves.

What I am looking for, and I think other noble Lords are looking for, is an assurance that it is not our intention to capture those people within this new offence. When the Minister outlines the offence, I would appreciate an assurance about why those fears will not be realised. We have suggested in the amendment to have a bar involving the Director of Public Prosecutions. I am sure the Minister will explain why that is not the right gating mechanism—but if not that, what is going to ensure that people in distress are not brought into the scope of this offence?

It would be very helpful to know what discussions the Minister is having with the Ministry of Justice, particularly about working with relevant organisations on the detail of what is being shared. Again, we can talk about it in the abstract; I found that specific cases can be helpful. I hope that there are people, either in his department or in the Ministry of Justice, who are talking to organisations, looking at the fora and at the kind of content that people in distress post, applying themselves and saying, “Yes, we are confident that we will not end up prosecuting that individual or that organisation”, or, if it is likely that they will be prosecuted, “We need to have a longer discussion about that if that is not the intention”.

Moving backwards through the letters, Amendment 268AZB takes us back to a question raised earlier today by the noble Baroness, Lady Kidron, but also on the first day in Committee, way back when—I am starting to feel nostalgic. She proposed an amendment to broaden the scope of this regulation to all online services, whether or not they are in the regulated user-to-user and search bucket for children’s protection purposes. I argued against that. I continue to view this legislation as appropriately targeted, and I worry about broadening the scope—but here I have a lot of sympathy. The noble Baroness raised a specific scenario, which again is a real one, of an individual outside the UK jurisdiction—let us imagine that they are in the US, because they will have first amendment protections. They run a blog, so it is not user to user, which is targeting people in the UK and saying, “You should harm yourself. You should commit suicide”. That individual is doing nothing wrong in their terms. They are now, under the terms of the Bill, committing a criminal offence in the UK, but there is virtually no prospect that they will ever be prosecuted unless they come to the UK. The amendment is seeking to tease out what happens in those scenarios.

I do not expect the Minister to accept my amendment as drafted—I thought it was cheeky even as I was drafting it. It says that for the purposes that we want, we will apply a whole bunch of the Online Safety Bill measures—the disruption, the blocking, the business disruption measures—to websites that promote this kind of content, even though they are not otherwise regulated. I am sure that the Minister has very good legal arguments in his notes as to why that would not work, but I hope he will tell us what else the Government can do. I do not think that people will find it acceptable if we go to all the trouble of passing this legislation but there is a category of online activity—which we know is there; it is real—that we can do nothing about. They are breaking our criminal law; we have taken all this time to construct a new form of criminal law, and yet they are sitting there beyond our reach, ignoring it, and we can do nothing. I hope the Minister can offer some suggestions as to what we might do.

I see that the noble Baroness, Lady Finlay of Llandaff, is in her place; she asked me to raise questions around the extent to which we have been using the powers we have today, but I will not as I think she will do so herself.

The core question that motivates the second amendment is that of what the Government think we might do if there are individuals who are not user-to-user or search services and are therefore outside the regulated bucket, who persistently and deliberately breach this new offence of encouragement to self-harm and yet are outside the UK jurisdiction. I hope the Minister agrees that something should be done about that scenario, and I look forward to hearing his suggestion about what may be done.

My Lords, I have two amendments in this grouping. I am afraid that I did not have time to get others to put their names to them, but I hope that they will find some support in this Committee.

For almost the whole of 2021, I chaired an inquiry in Scotland into misogyny. It was about the fact that many complaints were being made to the devolved Government in Scotland about women’s experiences not just of online harassment but of the disinhibition that the internet and social media have given people to be abusive online now also visiting the public square. Many people described the ways in which they are publicly harassed. I know that concerns people in this House too.

When I came to the Bill, I was concerned about something that became part of the evidence we heard. It is no different down here from in Scotland. As we know, many women—I say women, but men receive harassment online too—are sent really vicious, vile things. We all know of parliamentarians and journalists who have received them, their lives made a misery by threats to rape and kill and people saying, “Go and kill yourself”. There are also threats of disfigurement—“Somebody should take that smile off your face”—and suggestions that an acid attack be carried out on someone.

In hearing that evidence, it was interesting that some of the forms of threat are not direct in the way that criminal law normally works; they are indirect. They are not saying, “I’m going to come and rape you”. Sometimes they say that, but a lot of the time they say, “Somebody should rape you”; “You should be raped”; “You deserve to be raped”; “You should be dead”; “Somebody should take you out”; “You should be disfigured”; “Somebody should take that smile off your face, and a bit of acid will do it”. They are not saying, “I’m going to come and do it”, in which case the police go round and, if the person is identifiable, make an arrest—as happened with Joanna Cherry, the Scottish MP, for example, who had a direct threat of rape, and the person was ultimately charged under the Communications Act.

Our review of the kinds of threat taking place showed that it was increasingly this indirect form of threat, which has a hugely chilling effect on women. It creates fear and life changes, because women think that some follower of this person might come and do what is suggested and throw acid at them as they are coming out of their house, and they start rearranging their lives because of it—because they live in constant anxiety about it. It was shocking to hear the extent to which this is going on.

In the course of the past year, we have all become much more familiar with Andrew Tate. What happens with these things is that, because of the nature of social media and people having big followings, you get the pile-on: an expression with which I was not that familiar in the past but now understand only too well. The pile-on is where, algorithmically, many different commentaries are brought together and suddenly the recipient receives not just one, or five, but thousands of negative and nasty threats and comments. Of course, as a public person in Parliament, or a councillor, you are expected to open up your social media, because that is how people will get in touch with you or comment on the things you are doing, but then you receive thousands of these things. This affects journalists, Members of Parliament, councillors and the leaders of campaigns. For example, it was interesting to hear that people involved in the Covid matters received threats. It affects both men and women, but the sexual nature of the threats to women is horrifying.

The Andrew Tate thing is interesting because only yesterday I saw in the newspapers that part of the charging in Romania is about the way in which, because of his enormous following, and his encouragement of violence towards women, he is being charged, among many other things that are directly about violence to and the rape of women, for his incitement to these behaviours in many of his young male followers. In the report of the inquiry that I conducted, there are a number of recommendations around offences of that sort.

To specifically deal with this business of online threats, my amendments seek to address their indirect nature—not the ones that say, “I’m going to do it”, but the encouragement to others to do it or to create the fear that it will happen—and to look at how the criminal law addresses that.

I started out with the much lesser suggestion of inserting that the threat be either by the person who is sending the message or another individual, but the more I reflected on it the more it did not seem to me that that went far enough to deal with what one was seeking to address here. This is why I have an alternative, Amendment 267AB.

Noble Lords will see that it says:

“A person commits an offence if they issue a communication concerning death”.

I have written “concerning death” rather than “a threat to kill” because the former can include someone saying, “You should kill yourself”, “You should commit suicide” or “You should harm yourself”. The amendment also refers to “assault (sexual or otherwise)”, which could include all manner of sexual matters but also self-harming and “disfigurement”. I was shocked at the extent to which disfigurement is suggested in these kinds of abusive texts to all manner of people—even campaigners. Even a woman who campaigns on air pollution after the death of her child from a fatal asthmatic attack receives the most horrible threats and abuse online. When people do this, they know the impact that it is going to have. They do it, as my amendment says,

“knowing it will cause alarm or distress to a specific person or specific people”, rather than making generalised threats to the world.

As the Minister will know, I wrote to him wondering whether his team might put their great legal minds to this because we have to find a way of addressing the fact that people are encouraging others to make threats. We have to look at the effect that this has on the recipients, who are often women in public life in one way or another; the way in which it affects our polity and women’s participation, not just in public life but in politics and civil society generally; and the way in which it deters women from living their lives freely and equally with menfolk.

I hope that the Committee will think on that and that the Minister can come back to me with some positive things, even if he does not accept the particular formulation that I sought to devise. It may be that a different formulation could be sought, perhaps to include that it is done “recklessly”. I am prepared to consider its impact on people, but I think that it is done with knowledge of the impact that it will have, and where it is foreseeable that there will be an impact.

I urge the Committee to consider these matters. As I just heard one of my colleagues in the Committee suggest, this is a moment to seize. You can be sure that we cannot encapsulate everything, but we should be trying to cover as much as possible and the horrors of what is now happening on social media.

My Lords, I will address my remarks to government Amendment 268AZA and its consequential amendments. I rather hope that we will get some reassurance from the Minister on these amendments, about which I wrote to him just before the debate. I hope that that was helpful; it was meant to be constructive. I also had a helpful discussion with the noble Lord, Lord Allan.

As has already been said, the real question relates to the threshold and the point at which this measure will clock in. I am glad that the Government have recognised the importance of the dangers of encouraging or assisting serious self-harm. I am also grateful for the way in which they have defined it in the amendment, relating to it grievous bodily harm and severe injury. The amendment says that this also

“includes successive acts of self-harm which cumulatively reach that threshold”.

That is important; it means, rather than just one act, a series of them.

However, I have a question about subsection (10), which states that:

“A provider of an internet service by means of which a communication is sent, transmitted or published is not to be regarded as a person who sends, transmits or publishes it”.

We know from bereaved parents that algorithms have been set up which relay this ghastly, horrible and inciteful material that encourages and instructs. That is completely different from those organisations that are trying to provide support.

I am grateful to Samaritans for all its help with my Private Member’s Bill, and for the briefing that it provided in relation to this amendment. As it points out, over 5,500 people in England and Wales took their own lives in 2021 and self-harm is

“a strong risk factor for future suicide”.

Interestingly, two-thirds of those taking part in a Samaritans research project said that

“online forums and advice were helpful to them”.

It is important that there is clarity around providing support and not encouraging and goading people into activity which makes their self-harming worse and drags them down to eventually ending their own lives. Three-quarters of people who took part in that Samaritans research said that they had

“harmed themselves more severely after viewing self-harm content online”.

It is difficult to know exactly where this offence sits and whether it is sufficiently narrowly drawn.

I am grateful to the Minister for arranging for me to meet the Bill team to discuss this amendment. When I asked how it was going to work, I was somewhat concerned because, as far as I understand it, the mechanism is based on the Suicide Act, as amended, which talks about the offence of encouraging or assisting suicide. The problem as I see it is that, as far as I am aware, there has not been a string of prosecutions following the suicide of many young people. We have met their families and they have been absolutely clear about how their dead child or sibling—whether a child or a young adult—was goaded, pushed and prompted. I recently had experience outside of a similar situation, which fortunately did not result in a death.

The noble Lord, Lord Allan, has already addressed some of the issues around this, and I would not want the amendment not to be there because we must address this problem. However, if we are to have an offence here, with a threshold that the Government have tried to define, we must understand why, if assisting and encouraging suicide on the internet is already a criminal offence, nothing has happened and there have been no prosecutions.

Why is subsection (10) in there? It seems to negate the whole problem of forwarding on through dangerous algorithms content which is harmful. We know that a lot of the people who are mounting this are not in the UK, and therefore will be difficult to catch. It is the onward forwarding through algorithms that increases the volume of messaging to the vulnerable person and drives them further into the downward spiral that they find themselves in—which is perhaps why they originally went to the internet.

I look forward to hearing the Government’s response, and to hearing how this will work.

My Lords, this group relates to communications offences. I will speak in support of Amendment 265, tabled by the noble Lord, Lord Moylan, and in support of his opposition to Clause 160 standing part of the Bill. I also have concerns about Amendments 267AA and 267AB, in the name of the noble Baroness, Lady Kennedy. Having heard her explanation, perhaps she can come back and give clarification regarding some of my concerns.

On Clause 160 and the false communications offence, unlike the noble Lord, Lord Moylan, I want to focus on psychological harm and the challenge this poses for freedom of expression. I know we have debated it before but, in the context of the criminal law, it matters in a different way. It is worth us dwelling on at least some aspects of this.

The offence refers to what is described as causing

“non-trivial psychological or physical harm to a likely audience”.

As I understand it—maybe I want some clarity here—it is not necessary for the person sending the message to have intended to cause harm, yet there is a maximum sentence of 51 weeks in prison, a fine, or both. We need to have the context of a huge cultural shift when we consider the nature of the harm we are talking about.

J.S. Mill’s harm principle has now been expanded, as previously discussed, to include traumatic harm caused by words. Speakers are regularly no-platformed for ideas that we are told cause psychological harm, at universities and more broadly as part of the whole cancel culture discussion. Over the last decade, harm and safety have come no longer to refer just to physical safety but have been conflated. Historically, we understood the distinction between physical threats and violence as distinct from speech, however aggressive or incendiary that speech was; we did not say that speech was the same as or interchangeable with bullets or knives or violence—and now we do. I want us to at least pause here.

What counts as psychological harm is not a settled question. The worry is that we have an inability to ascertain objectively what psychological harm has occurred. This will inevitably lead to endless interpretation controversies and/or subjective claims-making, at least some of which could be in bad faith. There is no median with respect to how humans view or experience controversial content. There are wildly divergent sensibilities about what is psychologically harmful. The social media lawyer Graham Smith made a really good point when he said that speech is not a physical risk,

“a tripping hazard … a projecting nail … that will foreseeably cause injury … Speech is nuanced, subjectively perceived and capable of being reacted to in as many different ways as there are people.”

That is true.

We have seen an example of the potential disputes over what creates psychological harm in a case in the public realm over the past week. The former Culture Secretary, Nadine Dorries, who indeed oversaw much of this Bill in the other place, had her bullying claims against the SNP’s John Nicolson MP overturned by the standards watchdog. Her complaints had previously been upheld by the standards commissioner. John Nicolson tweeted, liked and retweet offensive and disparaging material about Ms Dorries 168 times over 24 hours—which, as they say, is a bit OTT. He “liked” tweets describing Ms Dorries as grotesque, a “vacuous goon” and much worse. It was no doubt very unpleasant for her and certainly a personalised pile-on—the kind of thing the noble Baroness, Lady Kennedy, just talked about—and Ms Dorries would say it was psychologically harmful. But her complaint was overturned by new evidence that led to the bullying claim being turned down. What was this evidence? Ms Dorries herself was a frequent and aggressive tweeter. So, somebody is a recipient of something they say causes them psychological harm, and it has now been said that it does not matter because they are the kind of person who causes psychological harm to other people. My concern about turning this into a criminal offence is that the courts will be full of those kinds of arguments, which I do not think we want.

One problem I have is that the Bill does not give any explicit protection in the public interest or for the purposes of debate around the use of such harm, even if, as has been indicated, false allegations are being made. People use hyperbole and exaggeration in political argument. Many of the big political questions of the day are not agreed on, and people accuse each other of lying all the time when it comes to anything from Brexit to gender. I am worried that inadvertently—I do not think anyone is trying to do this—Clause 160 will institutionalise and bake into primary legislation the core of cancel culture and lead to a more toxic climate than any of us would want.

I have some reservations about Amendment 267AB. I recognise and am full of admiration for the intention of the noble Baroness, Lady Kennedy, but the wording seems to make it an offence to issue

“a communication concerning death, rape, assault (sexual or otherwise) or disfigurement, knowing it will cause alarm or distress”.

I query how we would prove that someone knows it will cause offence, an issue that was slightly danced around. Also, a lot of content such as news websites, podcasts and various other communications could be said purposefully to cause alarm, offence or distress, perhaps because the intention is to shock people into realising what a war or a famine is like, or into understanding the dangers of groomers or suicide sites—the kind of things we have been discussing. During lockdown, the nudge unit explicitly issued communications about potential death that caused a great deal of alarm and distress. It had a public interest defence, which was that it was important that people were frightened into complying with the rules of lockdown, whatever one thinks of them. I do not see how that will not be caught up in this.

Amendment 267AA extends the offence to include encouraging someone else to commit harm. I understand that this is an attempt to deal with indirect misogynistic abuse that is not quite incitement but on the other hand seems to be A encouraging B—an indirect threat. I worry that if A encourages another person and that person does something as a consequence, it will lead to a “he told me to do it” defence and an abdication of responsibility. I have that qualm about it. The Member’s explanatory statement makes things even more difficult, using the phrase,

“if an individual sends a message which potentially encourages other individuals to carry out a harmful act”.

That is going to be wide open to abuse by all sorts of bad-faith complainants.

I say all this as someone who is regularly piled on. I noticed when I started to speak that the noble Baroness, Lady Stuart, is in her place. I remember my shock and horror when I saw the abuse she got some seven years ago and subsequently—really vicious, vile, horrible abuse for her political stance. Such abuse often takes a very sexualised form if you are a woman. So I can say from my lived experience that I know what it feels like to be on the receiving end of vile, horrible, misogynistic pile-ons, and so do Joanna Cherry, Rosie Duffield and a lot of people involved in contentious political issues. We need to make politics more civil by having the arguments and the debates and not mischaracterising, delegitimising or demonising people. I am just not sure that a criminal intervention here is going to help. I think it might make matters worse.

My Lords, as the noble Lord, Lord Clement-Jones, said in introducing this group some time ago, it is very diverse. I shall comment on two aspects of the amendments in this group. I entirely associate myself with the remarks of the noble Lord, Lord Allan, who really nailed the problems with Amendment 266, and I very much support the amendments in the name of the noble Baroness, Lady Kennedy of The Shaws; I would have signed them if I had caught up with them.

The noble Baroness, Lady Fox, talked about causing alarm and distress. I can draw on my own experience here, thinking about when someone randomly starts to post you pictures of crossbows. I think about what used to happen when I was a journalist in Bangkok, when various people used to get hand grenades posted into their letterbox. That was not actively dangerous—the pin was not pulled; it was still held down—but it was clearly a threat, and the same thing happens on social media.

This is something of which I have long experience. In 2005, when I was the founder of the feminist blog Carnival of Feminists, I saw the kinds of messages that the noble Baronesses have referred to, which in the days before social media used to be posted as comments on people’s blogs. You can still find the blog out there—it ran from 2005 to 2009—but many of its links to other blogs will be dead because they were often run by young women, often young women of colour, who were driven to pull down their blogs and sometimes were driven off the internet entirely by threatening, fearsome messages of the type that the noble Baroness, Lady Kennedy, referred to. We can argue about the drafting here—I will not have any opinion on that in detail—but something that addresses that issue is really important.

Secondly, we have not yet heard the Government’s introductions to Amendment 268AZA, but the noble Lord, Lord Clement-Jones, provided us with the information that it is an amendment to create the offence of encouraging or assisting self-harm. I express support for the general tenor of that, but I want to make one specific point: so far as I can see, the amendment does not have any defence or carve-out for harm-reduction messages, which may be necessary.

To set the context here, figures from the Royal College of Psychiatrists say that about one in 10 young people self-harm at some stage in their youth, and the RCP says those figures are probably an underestimate because they are based on figures where medical professionals actually see them so the number is probably significantly higher than that. An article in the Journal of Psychiatric and Mental Health Nursing from 2018 entitled “Self-cutting and harm reduction” is focused on in-patient settings, but the arguments in it are important in setting the general tone. It says that

“harm reduction in all its guises starts from the premise that the end goal”— that is, to end self-harm entirely—

“is neither necessarily nor inevitably abstinence”, which cannot be the solution for some people. Rather,

“the extinction of some particular form of behaviour may not be realistic for, or even desired by, the individual”.

So you may find messages that say, “If you are going to cut yourself, use a clean blade. If you do cut yourself, look after the wound afterwards”, but there is a risk that those kinds of well-intentioned, well-meaning and indeed expert messages could be caught by the amendment. I googled self-harm and harm reduction, and the websites that came up included Self Injury Support, which provides expert advice; a number of mental health trusts and healthcare trusts; and, indeed, the royal college’s own website.

The noble Lord, Lord Allan of Hallam, was trying to address this issue with Amendment 268AZC, which would allow the DPP to authorise prosecutions, but it seems to me that a better approach would be to have in the government amendment a statement saying, “We acknowledge that there will be cases where people talk about self-harm in ways that seek to minimise harm rather than simply stopping it, and they are not meant to be caught by this amendment”.

My Lords, as the noble Baroness, Lady Bennett, said, it seems a very long time since we heard the introduction from the noble Lord, Lord Clement-Jones, but it was useful in setting this helpful and well-informed debate on its way. I am sure the whole Committee is keen to hear the Minister introducing the government amendments, even at this very late stage in the debate.

I would like to make reference to a few points. I was completely captivated by the noble Lord, Lord Moylan, who invoked the 10 commandments. I say to him that one can go to no higher order, which I am sure will support the amendments that he and his colleagues have put forward.

I will refer first to the amendments tabled by my noble friend Lady Kennedy. At a minimum, they are interesting because they try to broaden the scope of the current offences. I believe they also try to anticipate the extent of the impact of the government amendments, which in my view would be improved by my noble friend’s amendments. As my noble friend said, so many of the threats that are experienced online by, and directed towards, women and girls are indirect. They are about encouraging others: saying “Somebody should do something terrible to you” is extremely common. I feel that here is an opportunity to address that in the Bill, and if we do not, we will have missed a major aspect. I hope that the Minister will take account of that and be positive. We can all be relaxed about whether the amendments need to be made, but the intent is there.

That part of the debate made a strong case to build on the debate we had on an earlier day in Committee about violence against women and girls, which was led by the noble Baroness, Lady Morgan, and supported by noble Baronesses and noble Lords from all sides of the House. We called upon the Minister then to ensure that the Bill explicitly includes the necessary amendments to make it refer to violence against women and girls because, for all the reasons that my noble friend Lady Kennedy has explained, it is considerably greater for them than for others. Without wishing to dismiss the fact that everybody receives levels of abuse, we have to be realistic here: I believe that my noble friend’s amendments are extremely helpful there.

This is a bit in anticipation of what the Minister will say—I am sure he will forgive me if he already has the answers. The noble Lords, Lord Clement-Jones and Lord Allan, referred particularly to the coalition of some 130 individuals and organisations which have expressed their concerns. I want to highlight those concerns as well, because they speak to some important points. The groups in that coalition include the largest self-harm charity, Self Injury Support, along with numerous smaller self-harm support organisations and, of course, the mental health charity Mind. Their voice is therefore considerable.

To emphasise what has already been outlined, the concern with the current amendments is that they are somewhat broad and equivalent to an offence of glamorising self-harm, which was rejected by the Law Commission in its consultation on the offence. That followed concern from the Magistrates’ Association and the Association of Police and Crime Commissioners that the offence would be ambiguous in application and complex to prosecute. It also risks criminalising people in distress, something that none of us want to see.

In addition, the broadness of the offence risks criminalising peer support and harm reduction resources, by defining them as capable of “encouraging or assisting” when they are in fact intended to help people who self-harm. This was raised by the noble Baroness, Lady Finlay, today and in respect of her Private Member’s Bill, which we debated very recently in this Chamber, and I am sure that it would not be the Minister’s intention.

I would like to emphasise another point that has been made. The offence may also criminalise content posted by people who are in distress and sharing their own experiences of self-harm—the noble Baroness, Lady Finlay, referred to this—by, for example, posting pictures of wounds. We do not want to subject vulnerable people to litigation, so let us not have an offence which ends up harming the very people it aims to protect. I shall be listening closely to the Minister.

There are a number of mitigations which would help, such as the introduction of defences excluding peer support and harm reduction resources, as well as content which has been posted with a view to reducing one’s own serious self-harm. In addition, there could be a mitigation, which I hope we will see, requiring consent from the DPP for any prosecution to occur. That was also suggested by the Law Commission and was picked up by the noble Lord, Lord Allan. There is also the potential for mitigation by including a requirement of malicious intent. This would ensure that offences apply only to instances of trolling or bullying.

I will leave the Minister with a few questions. It would be helpful to hear what consultation there has been with self-harm specific organisations and how the government amendments differ from the broader “glamorisation” offence, which was rejected by the Law Commission. It would also be helpful to hear examples of content that are intended to be criminalised by the offence. That would be of interest to your Lordships’ Committee and the coalition of very key organisations and individuals who are keen, as we all are, to see this Bill end up in the right form and place. I look forward to hearing from the Minister.

My Lords, this has been a broad and mixed group of amendments. I will be moving the amendments in my name, which are part of it. These introduce the new offence of encouraging or assisting serious self-harm and make technical changes to the communications offences. If there can be a statement covering the group and the debate we have had, which I agree has been well informed and useful, it is that this Bill will modernise criminal law for communications online and offline. The new offences will criminalise the most damaging communications while protecting freedom of expression.

Amendments 264A, 266 and 267, tabled by the noble Lord, Lord Clement-Jones, and my noble friend Lady Buscombe, would expand the scope of the false communications offence to add identity theft and financial harm to third parties. I am very grateful to them for raising these issues, and in particular to my noble friend Lady Buscombe for raising the importance of financial harm from fake reviews. This will be addressed through the Digital Markets, Competition and Consumers Bill, which was recently introduced to Parliament. That Bill proposes new powers to address fake and misleading reviews. This will provide greater legal clarity to businesses and consumers. Where fake reviews are posted, it will allow the regulator to take action quickly. The noble Baroness is right to point out the specific scenarios about which she has concern. I hope she will look at that Bill and return to this issue in that context if she feels it does not address her points to her satisfaction.

Identity theft is dealt with by the Fraud Act 2006, which captures those using false identities for their own benefit. It also covers people selling or using stolen personal information, such as banking information and national insurance numbers. Adding identity theft to the communications offences here would duplicate existing law and expand the scope of the offences too broadly. Identity theft, as the noble Lord, Lord Clement-Jones, noted, is better covered by targeted offences rather than communications offences designed to protect victims from psychological and physical harm. The Fraud Act is more targeted and therefore more appropriate for tackling these issues. If we were to add identity theft to Clause 160, we would risk creating confusion for the courts when interpreting the law in these areas—so I hope the noble Lord will be inclined to side with clarity and simplicity.

Amendment 265, tabled by my noble friend Lord Moylan, gives me a second chance to consider his concerns about Clause 160. The Government believe that the clause is necessary and that the threshold of harm strikes the right balance, robustly protecting victims of false communications while maintaining people’s freedom of expression. Removing “psychological” harm from Clause 160 would make the offence too narrow and risk excluding communications that can have a lasting and serious effect on people’s mental well-being.

But psychological harm is only one aspect of Clause 160; all elements of the offence must be met. This includes a person sending a knowingly false message with an intention to cause non-trivial harm, and without reasonable excuse. It has also been tested extensively as part of the Law Commission’s report Modernising Communications Offences, when determining what the threshold of harm should be for this offence. It thus sets a high bar for prosecution, whereby a person cannot be prosecuted solely on the basis of a message causing psychological harm.

The noble Lord, Lord Allan, rightly recalled Section 127 of the Communications Act and the importance of probing issues such as this. I am glad he mentioned the Twitter joke trial—a good friend of mine acted as junior counsel in that case, so I remember it well. I shall spare the blushes of the noble Baroness, Lady Merron, in recalling who the Director of Public Prosecutions was at the time. But it is important that we look at these issues, and I am happy to speak further with my noble friend Lord Moylan and the noble Baroness, Lady Fox, about this and their broader concerns about freedom of expression between now and Report, if they would welcome that.

My noble friend Lord Moylan said that it would be unusual, or novel, to criminalise lying. The offence of fraud by false representation already makes it an offence dishonestly to make a false representation—to breach the ninth commandment—with the intention of making a gain or causing someone else a loss. So, as my noble and learned friend Lord Garnier pointed out, there is a precedent for lies with malicious and harmful intent being criminalised.

Amendments 267AA, 267AB and 268, tabled my noble friend Lady Buscombe and the noble Baroness, Lady Kennedy of The Shaws, take the opposite approach to those I have just discussed, as they significantly lower and expand the threshold of harm in the false and threatening communications offences. The first of these would specify that a threatening communications offence is committed even if someone encountering the message did not fear that the sender specifically would carry out the threat. I am grateful to the noble Baroness for her correspondence on this issue, informed by her work in Scotland. The test here is not whether a message makes a direct threat but whether it conveys a threat—which can certainly cover indirect or implied threats.

I reassure the noble Baroness and other noble Lords that Clause 162 already captures threats of “death or serious harm”, including rape and disfigurement, as well as messages that convey a threat of serious harm, including rape and death threats, or threats of serious injury amounting to grievous bodily harm. If a sender has the relevant intention or recklessness, the message will meet the required threshold. But I was grateful to see my right honourable friend Edward Argar watching our debates earlier, in his capacity as Justice Minister. I mentioned the matter to him and will ensure that his officials have the opportunity to speak to officials in Scotland to look at the work being done with regard to Scots law, and to follow the points that the noble Baroness, Lady Bennett, made about pictures—

I am grateful to the Minister. I was not imagining that the formulations that I played with fulfilled all of the requirements. Of course, as a practising lawyer, I am anxious that we do not diminish standards. I thank the noble Baroness, Lady Fox, for raising concerns about freedom of speech, but this is not about telling people that they are unattractive or ugly, which is hurtful enough to many women and can have very deleterious effects on their self-confidence and willingness to be public figures. Actually, I put the bar reasonably high in describing the acts that I was talking about: threats that somebody would kill, rape, bugger or disfigure you, or do whatever to you. That was the shocking thing: the evidence showed that it was often at that high level. It is happening not just to well-known public figures, who can become somewhat inured to this because they can find a way to deal with it; it is happening to schoolgirls and young women in universities, who get these pile-ons as well. We should reckon with the fact that it is happening on a much wider basis than many people understand.

Yes, we will ensure that, in looking at this in the context of Scots law, we have the opportunity to see what is being done there and that we are satisfied that all the scenarios are covered. In relation to the noble Baroness’s Amendment 268, the intentional encouragement or assistance of a criminal offence is already captured under Sections 44 to 46 of the Serious Crime Act 2007, so I hope that that satisfies her that that element is covered—but we will certainly look at all of this.

I turn to government Amendment 268AZA, which introduces the new serious self-harm offence, and Amendments 268AZB and 268AZC, tabled by the noble Lords, Lord Allan and Lord Clement-Jones. The Government recognise that there is a gap in the law in relation to the encouragement of non-fatal self-harm. The new offence will apply to anyone carrying out an act which intends to, and is capable of, encouraging or assisting another person seriously to self-harm by means of verbal or electronic communications, publications or correspondence.

I say to the noble Baroness, Lady Finlay of Llandaff, that the new clause inserted by Amendment 268AZA is clear that, when a person sends or publishes a communication that is an offence, it is also clear that, when a person forwards on another person’s communication, that will be an offence too. The new offence will capture only the most serious behaviour and avoid criminalising vulnerable people who share their experiences of self-harm. The preparation of these clauses was informed by extensive consultation with interested groups and campaign bodies. The new offence includes two key elements that constrain the offence to the most culpable offending; namely, that a person’s act must be intended to encourage or assist the serious self-harm of another person and that serious self-harm should amount to grievous bodily harm. If a person does not intend to encourage or assist serious self-harm, as will likely be the case with recovery and supportive material, no offence will be committed. The Law Commission looked at this issue carefully, following evidence from the Samaritans and others, and the implementation will be informed by an ongoing consultation as well.

I am sorry to interrupt the Minister, but the Law Commission recommended that the DPP’s consent should be required. The case that the Minister has made on previous occasions in some of the consultations that he has had with us is that this offence that the Government have proposed is different from the Law Commission one, and that is why they have not included the DPP’s consent. I am rather baffled by that, because the Law Commission was talking about a high threshold in the first place, and the Minister is talking about a high threshold of intent. Even if he cannot do so now, it would be extremely helpful to tie that down. As the noble Baroness and my noble friend said, 130 organisations are really concerned about the impact of this.

The Law Commission recommended that the consent, but not the personal consent, of the Director of Public Prosecutions should be required. We believe, however, that, because the offence already has tight parameters due to the requirement for an intention to cause serious self-harm amounting to grievous bodily harm, as I have just outlined, an additional safeguard of obtaining the personal consent of the Director of Public Prosecutions is not necessary. We would expect the usual prosecutorial discretion and guidance to provide sufficient safeguards against inappropriate prosecutions in this area. As I say, we will continue to engage with those groups that have helped to inform the drafting of these clauses as they are implemented to make sure that that assessment is indeed borne out.

Amendment 268AZB aims to apply business disruption enforcement measures to any internet service that “persistently fails to prevent”, or indeed allows, the illegal encouragement of self-harm. As I mentioned earlier in Committee, the Bill significantly reduces the likelihood of users encountering this material on internet sites. It requires all user-to-user services to remove this content and search services to minimise users’ access to it. I hope that that reassures the noble Lords in relation to their amendments to my amendment.

I completely accept that, yes, by requiring the regulated services to prevent access to this kind of content, we will make a significant difference, but it is still the case that there will be—we know there will be, because they exist today—these individual websites, blogs or whatever you want to call them which are not regulated user-to-user services and which are promoting self-harm content. It would be really helpful to know what the Government think should happen to a service such as that, given that it is outside the regulation; it may be persistently breaking the law but be outside our jurisdiction.

I will follow up in writing on that point.

Before I conclude, I will mention briefly the further government amendments in my name, which make technical and consequential amendments to ensure that the communications offences, including the self-harm offence, have the appropriate territorial extent. They also set out the respective penalties for the communications offences in Northern Ireland, alongside a minor adjustment to the epilepsy trolling offence, to ensure that its description is more accurate.

I hope that noble Lords will agree that the new criminal laws that we will make through this Bill are a marked improvement on the status quo. I hope that they will continue to support the government amendments. I express my gratitude to the Law Commission and to all noble Lords—

Just before the Minister sits down—I assume that he has finished his brief on the self-harm amendments; I have been waiting—I have two questions relating to what he said. First, if I heard him right, he said that the person forwarding on is also committing an offence. Does that also apply to those who set up algorithms that disseminate, as opposed to one individual forwarding on to another individual? Those are two very different scenarios. We can see how one individual forwarding to another could be quite targeted and malicious, and we can see how disseminating through an algorithm could have very widespread harms across a lot of people in a lot of different groups—all types of groups—but I am not clear from what he said that that has been caught in his wording.

Secondly—I will ask both questions while I can—I asked the Minister previously why there have been no prosecutions under the Suicide Act. I understood from officials that this amendment creating an offence was to reflect the Suicide Act and that suicide was not included in the Bill because it was already covered as an offence by the Suicide Act. Yet there have been no prosecutions and we have had deaths, so I do not quite understand why I have not had an answer to that.

I will have to write on the second point to try to set that out in further detail. On the question of algorithms, the brief answer is no, algorithms would not be covered in the way a person forwarding on a communication is covered unless the algorithm has been developed with the intention of causing serious self-harm; it is the intention that is part of the test. If somebody creates an algorithm intending people to self-harm, that could be captured, but if it is an algorithm generally passing it on without that specific intention, it may not be. I am happy to write to the noble Baroness further on this, because it is a good question but quite a technical one.

It needs to be addressed, because these very small websites already alluded to are providing some extremely nasty stuff. They are not providing support to people and helping decrease the amount of harm to those self-harming but seem to be enjoying the spectacle of it. We need to differentiate and make sure that we do not inadvertently let one group get away with disseminating very harmful material simply because it has a small website somewhere else. I hope that will be included in the Minister’s letter; I do not expect him to reply now.

Some of us are slightly disappointed that my noble friend did not respond to my point on the interaction of Clause 160 with the illegal content duty. Essentially, what appears to be creating a criminal offence could simply be a channel for hyperactive censorship on the part of the platforms to prevent the criminal offence taking place. He has not explained that interaction. He may say that there is no interaction and that we would not expect the platforms to take any action against offences under Clause 160, or that we expect a large amount of action, but nothing was said.

If my noble friend will forgive me, I had better refresh my memory of what he said—it was some time ago—and follow up in writing.

My Lords, I will be extremely brief. There is much to chew on in the Minister’s speech and this was a very useful debate. Some of us will be happier than others; the noble Baroness, Lady Buscombe, will no doubt look forward to the digital markets Bill and I will just have to keep pressing the Minister on the Data Protection and Digital Information Bill.

There is a fundamental misunderstanding about digital identity theft. It will not necessarily always be fraud that is demonstrated—the very theft of the identity is designed to be the crime, and it is not covered by the Fraud Act 2006. I am delighted that the Minister has agreed to talk further with the noble Baroness, Lady Kennedy, because that is a really important area. I am not sure that my noble friend will be that happy with the response, but he will no doubt follow up with the Minister on his amendments.

The Minister made a very clear statement on the substantive aspect of the group, the new crime of encouraging self-harm, but further clarification is still needed. We will look very carefully at what he said in relation to what the Law Commission recommended, because it is really important that we get this right. I know that the Minister will talk further with the noble Baroness, Lady Finlay, who is very well versed in this area. In the meantime, I beg leave to withdraw my amendment.

Amendment 264A withdrawn.

My Lords, I now have to go through a mass of amendments that are not to be the subject of debate today as they have been debated previously. I will proceed as swiftly as I can.

Amendments 265 to 267 not moved.