Clause 150 - Harmful communications offence

Online Safety Bill – in a Public Bill Committee at 3:00 pm on 21st June 2022.

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Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen 3:00 pm, 21st June 2022

I beg to move amendment 112, in clause 150, page 127, line 28, at end insert “and;

(b) physical harm that has been acquired as a consequence of receiving the content of a message sent online.”

This amendment would expand the definition of harm for the purposes of the harmful communications offence to incorporate physical harm resulting from messages received online.

Photo of Christina Rees Christina Rees Labour/Co-operative, Neath

With this it will be convenient to discuss amendment 113, in clause 150, page 127, line 28, at end insert “; or

(b) physical harm resulting from an epileptic seizure, where the seizure has been triggered by the intentional sending of flashing images to a person with epilepsy.”

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

I move the amendment in my name and will speak to amendment 113, which is in the name of Paul Maynard.

The amendment would put into effect Zach’s law in full. Zach, as many Members know, is an amazing, energetic and bright young boy from my constituency. I had the absolute pleasure of visiting Zach and his mum Clare at their home in Hartshead a few weeks ago. We chatted about school and his forthcoming holiday, and he even invited me to the pub. However, Zach also has epilepsy.

Disgustingly, he was trolled online a few years ago and sent flashing images by bullies, designed to trigger his condition and give him an epileptic seizure, a seizure that not only would cause him and his family great distress, but can be extremely dangerous and cause Zach significant psychological and physical harm. I know that we are all united in our disgust at such despicable actions and committed to ensuring that this type of unbelievable online bullying is against the law under the Bill.

On Second Reading, I raised the matter directly with the Minister and I am glad that he pointed to clause 150 and stated very explicitly that subsection (4) will cover the type of online harm that Zach has encountered. However, we need more than just a commitment at the Dispatch Box by the Minister, or verbal reassurances, to protect Zach and the 600,000 other people in the UK with epilepsy.

The form of online harm that Zach and others with epilepsy have suffered causes more than just “serious distress”. Members know that the Bill as drafted lists

“psychological harm amounting to at least serious distress” as a qualifying criterion of the offence. However, I believe that does not accurately and fully reflect the harm that epilepsy trolling causes, and that it leaves a significant loophole that none of us here wish to see exploited

For many people with epilepsy, the harm caused by this vicious online trolling is not only psychological but physical too. Seizures are not benign events. They can result in broken bones, concussion, bruises and cuts, and in extreme cases can be fatal. It is simply not right to argue that physical harm is intrinsically intertwined with psychological harm. They are different harms with different symptoms. While victims may experience both, that is not always the case.

Professor Sander, medical director of the Epilepsy Society and professor of neurology at University College London Hospitals NHS Foundation Trust, who is widely considered one of the world’s leading experts on epilepsy, has said:

“Everyone experiences seizures differently. Some people may be psychologically distressed by a seizure and not physically harmed. Others may be physically harmed but not psychologically distressed. This will vary from person to person, and sometimes from seizure to seizure depending on individual circumstances.”

Amendment 112 will therefore expand the scope of clause 150 and insert on the face of the Bill that an offence will also be committed under the harmful communications clause when physical harm has occurred as a consequence of receiving a message sent online with malicious intent. In practical terms, if a person with epilepsy were to receive a harmful message online that triggers their epilepsy and they subsequently fall off their chair and hit their head, that physical harm will be proof of a harmful communication offence, without the need to prove any serious psychological distress that may have been caused.

This simple but effective amendment, supported by the Epilepsy Society, will ensure that the horrific trolling that Zach and others with epilepsy have had to endure will be covered in full by the Bill. That will mean that the total impact that such trolling has on the victims is reflected beyond solely psychological distress, so there can be no ambiguity and nowhere for those responsible for sending these images and videos to hide.

I am aware that the Minister has previously pointed to the possibility of a standalone Bill—a proposal that is under discussion in the Ministry of Justice. That is all well and good, but that should not delay our action when the Bill before us is a perfectly fit legislative vehicle to end epilepsy trolling, as the Law Commission report recommended.

I thank colleagues from across the House for the work they have done on this important issue. I sincerely hope that the amendment is one instance where we can be united in this Committee. I urge the Minister to adopt amendment 112, to implement Zach’s law in full and to provide the hundreds of thousands of people across the UK living with epilepsy the legal protections they need to keep them safe online. It would give me no greater pleasure than to call at Zach’s house next time I am in the area and tell him that this is the case.

Photo of Dean Russell Dean Russell Chair, Speaker's Advisory Committee on Works of Art

May I praise the hon. Member for Batley and Spen for such an eloquent and heartfelt explanation of the reason why this amendment to the Bill is so important?

I have been campaigning on Zach’s law for the past nine months. I have spoken to Zach multiple times and have worked closely with my hon. Friend Suzanne Webb in engaging directly with Facebook, Twitter and the big platforms to try to get them to do something, because we should not need to have a law to stop them sending flashing images. We had got quite far a few months ago, but now that seems to have stalled, which is very frustrating.

I am stuck between my heart and my head on this amendment. My heart says we need to include the amendment right now, sort it out and get it finalised. However, my head says we have got to get it right. During the Joint Committee for Online Safety before Christmas and in the evidence sessions for this Bill, we heard that if the platforms want to use a loophole and get around things they will. I have even seen that with regard to the engagements and the promises we have had.

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Work and Pensions)

I wonder whether the hon. Gentleman would consider a belt and braces approach as the best way forward? We could have it in the Bill and have the other legislation, in order that this will definitely protect people and companies will not be able to wriggle out of it.

Photo of Dean Russell Dean Russell Chair, Speaker's Advisory Committee on Works of Art

That is an excellent point. I have yet to make up my mind which way to vote if the amendment is pressed to a vote; I do not know whether this is a probing amendment. Having spoken to the Epilepsy Society and having been very close to this issue for many months, for me to feel comfortable, I want the Minister not just to say, as he has said on the Floor of the House, to me personally, in meetings and recently here, that the clause should cover epilepsy, and does seem to, and that he is very confident of that, but to give some assurance that we will change the law in some form.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

I am incredibly grateful for the hon. Member’s comments and contribution. I agree wholeheartedly. We need more than a belief and an intention. There is absolutely no reason why we cannot have this in black and white in the Bill. I hope he can find a way to do the right thing today and vote for the amendment.

Photo of Dean Russell Dean Russell Chair, Speaker's Advisory Committee on Works of Art

The phrase “Do the right thing” is at the heart of this. My hon. Friend Tom Hunt presented the Flashing Images Bill yesterday. A big part of this is about justice. I am conscious that we have got to get the balance right; stopping this happening has an impact for the people who choose to do this. I am keen to hear what the Minister says. We have got to get this right. I am keen to get some assurances, which will very much sway my decision on the vote today.

Photo of Caroline Ansell Caroline Ansell Conservative, Eastbourne

At the risk of following my earlier voting pattern, I am also very much with the hon. Member for Batley and Spen in spirit. I could not do the subject any more justice than she has, describing this appalling online behaviour and just how damaging it is. I am a member of the all-party parliamentary group on epilepsy and have lived experience myself.

I want to highlight the comments of the Epilepsy Society, which I am sure is following our work this afternoon. It welcomes many of the introductions to the Bill, but highlights something of a legislative no man’s land. Clause 187 mentions physical harm, but does not apply to clause 150. Clause 150 only covers psychological harm when, as we have heard described, many seizures result in physical harm and some of that is very serious. I know the Minister is equally committed to see this measure come about and recognises the points we have demonstrated. The hon. Lady is right that we are united. I suspect the only point on which there might be some difference is around timing. I will be looking to support the introduction and the honouring in full of Zach’s law before the Bill is passed. There are many other stages.

My understanding is that many others wish to contribute, not least the Ministry of Justice. My hope, and my request to the Minister, is that those expert stakeholder voices will be part of the drafting, should it not be the case that supporting the amendment presented today is the very best and strongest way forward. I want to see recognition in law.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Amendment 112 is clearly very important. As my hon. Friend the Member for Watford pointed out, I have already said that I believe that clause 150 goes a long way to address the various issues that have been raised. Since my hon. Friends the Members for Eastbourne and for Watford, and the hon. Member for Batley and Spen have been raising this issue—my hon. Friends have been lobbying me on this issue persistently and frequently, behind closed doors as well as publicly, and the hon. Member for Batley and Spen has been campaigning on this publicly with great tenacity and verve—the Government and the MOJ have been further considering the Law Commission’s recommendations, which I referenced on Second Reading. Subsequent to Second Reading and the lobbying by the three Members who have just spoken—the hon. Member for Batley and Spen, and my hon. Friends the Members for Watford and for Eastbourne—I can now announce to the Committee that the Government have decided to enact the Law Commission’s recommendations, so there will be a new and separate standalone offence that is specific to epilepsy for the very first time. I can firmly commit to that and announce it today.

The question then arises which legislative vehicle the offence will go in. I am aware of the private Member’s Bill, but it will take a very long time and we probably would not want to rely on it, so I am in the process of getting cross-Government agreement on which legislative vehicle will be used. I do not want to say any more about that now, because it is still subject to collective agreement, but I am expecting to come back to the House on Report and confirm which Bill the measure will go in.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen 3:15 pm, 21st June 2022

I genuinely appreciate the Minister’s comments, but why would we spend more time doing other pieces of legislation when we can do it right here and right now? The amendment will solve the problem without causing any more pain or suffering over a long period of time.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

One of the pieces of legislation that could be used is this Bill, because it is in scope. If the hon. Lady can bear with me until Report, I will say more about the specific legislative vehicle that we propose to use.

On the precise wording to be used, I will make a couple of points about the amendments that have been tabled—I think amendment 113 is not being moved, but I will speak to it anyway. Amendment 112, which was tabled by the hon. Member for Batley and Spen, talks about bringing physical harm in general into the scope of clause 150. Of course, that goes far beyond epilepsy trolling, because it would also bring into scope the existing offence of assisting or encouraging suicide, so there would be duplicative law: there would be the existing offence of assisting or encouraging suicide and the new offence, because a communication that encouraged physical harm would do the same thing.

If we included all physical harm, it would duplicate the proposed offence of assisting or encouraging self-harm that is being worked on by the Ministry of Justice and the Law Commission. It would also duplicate offences under the Offences Against the Person Act 1861, because if a communication caused one person to injure another, there would be duplication between the offence that will be created by clause 150 and the existing offence. Clearly, we cannot have two offences that criminalise the same behaviour. To the point made by the hon. Member for Aberdeen North, it would not be right to create two epilepsy trolling offences. We just need one, but it needs to be right.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

In a second.

The physical harm extension goes way beyond the epilepsy point, which is why I do not think that that would be the right way to do it, although the Government have accepted that we will do it and need to do it, but by a different mechanism.

I was about to speak to amendment 113, the drafting of which specifically mentions epilepsy and which was tabled by my hon. Friend Paul Maynard, but was the hon. Lady’s question about the previous point?

Photo of Kirsty Blackman Kirsty Blackman Shadow SNP Spokesperson (Work and Pensions)

My question was about the announcement that the Minister is hoping to make on Report. I appreciate that he has committed to introduce the new offence, which is great. If the Bill is to be the legislative vehicle, does he expect to amend it on Report, or does he expect that that will have to wait until the amendment goes through the Lords?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

That is a good question, and it ties into my next point. Clearly, amendment 113 is designed to create a two-sentence epilepsy trolling offence. When trying to create a brand-new offence—in this case, epilepsy trolling—it is unlikely that two sentences’ worth of drafting will do the trick, because a number of questions need to be addressed. For example, the drafting will need to consider what level of harm should be covered and exactly what penalty would be appropriate. If it was in clause 150, the penalty would be two years, but it might be higher or lower, which needs to be addressed. The precise definitions of the various terms need to be carefully defined as well, including “epilepsy” and “epileptic seizures” in amendment 113, which was tabled by my hon. Friend the Member for Blackpool North and Cleveleys. We need to get proper drafting.

My hon. Friend the Member for Eastbourne mentioned that the Epilepsy Society had some thoughts on the drafting. I know that my colleagues in the Ministry of Justice and, I am sure, the office of the parliamentary counsel, would be keen to work with experts from the Epilepsy Society to ensure that the drafting is correct. Report will likely be before summer recess—it is not confirmed, but I am hoping it will be—and getting the drafting nailed down that quickly would be challenging.

I hope that, in a slightly indirect way, that answers the question. We do not have collective agreement about the precise legislative vehicle to use; however, I hope it addresses the questions about how the timing and the choreography could work.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

We have talked a lot about the Epilepsy Society this afternoon, and quite rightly too, as they are the experts in this field. My understanding is that it is perfectly happy with the language in this amendment

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

Amendment 112. I think that the Epilepsy Society feels that this would be covered. I am also confused, because the Minister said previously that it was his belief and intention that this clause would cover epilepsy trolling, but he is now acknowledging that it does not. Why would we not, therefore, just accept the amendment that covers it and save everybody a lot of time?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Representations have been made by the three Members here that epilepsy deserves its own stand-alone offence, and the Government have just agreed to do that, so take that as a win. On why we would not just accept amendment 112, it may well cover epilepsy, and may well cover it to the satisfaction of the Epilepsy Society, but it also, probably inadvertently, does a lot more than that. It creates a duplication with the offence of assisting or encouraging suicide.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

Surely that is almost a bonus?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

No, it is not a bonus, because we cannot have two different laws that criminalise the same thing. We want to have laws that are, essentially, mutually exclusive. If a person commits a particular act, it should be clear which Act the offence is being committed under. Imagine that there were two different offences for the same act with different sentences—one is two years and one is 10 years. Which sentence does the judge then apply? We do not want to have law that overlaps, where the same act is basically a clear offence under two different laws. Just by using the term “physical harm”, amendment 112 creates that. I accept that it would cover epilepsy, but it would also cover a whole load of other things, which would then create duplication.

That is why the right way to do this is essentially through a better drafted version of amendment 113, which specifically targets epilepsy. However, it should be done with drafting that has been done properly—with respect to my hon. Friend the Member for Blackpool North and Cleveleys, who drafted the amendment—with definitions that are done properly, and so on. That is what we want to do.

Photo of Dean Russell Dean Russell Chair, Speaker's Advisory Committee on Works of Art

Having been involved on this Bill for quite a while now and having met Zach, I know the concerns that the Epilepsy Society have had. For me, we just need the Minister to tell us, which I think he has, that this will become law, whatever the vehicle for that is. If we know that this will be an offence by the end of this year—hopefully by summer, if not sooner—so that people cannot send flashing images to people with epilepsy, like Zach, then I will feel comfortable in not backing the amendment, on the premise that the Government will do something, moving forward. Am I correct in that understanding?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Yes. Just to be clear, in no world will a new law pass by the summer recess. However, I can say that the Government are committed, unequivocally, to there being a new offence in law that will criminalise epilepsy trolling specifically. That commitment is categoric. The only matter on which I need to come back to the House, which I will try to do on Report, is to confirm specifically which Bill that offence will go in. The commitment to legislate is made unequivocally today.

Photo of Caroline Ansell Caroline Ansell Conservative, Eastbourne

I welcome the Minister’s announcement and that commitment. I particularly welcome that the new offence will have epilepsy in the title. People who seek out those who may be triggered and have seizures to cause this harm use all sorts of tags, organisations and individuals to deliberately and specifically target those who suffer from epilepsy. It is therefore wholly right that this new offence, whether in this Bill or another, cites epilepsy, because those who would seek to do harm know it and call it that.

I have not had the privilege of meeting Zach; however, thanks to this online world, which we are experiencing through this legislation as the wild west, I was able to see the most beautiful tribute interview he did with his mum. He said that if the change were to be made and offence were to be recognised, “we win.” He is so right that we all win.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

My hon. Friend makes an extremely powerful point that is incapable of being improved upon.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

It is wonderful that we have such consensus on this issue. I am grateful to colleagues for that. I am very concerned about the pressures on parliamentary time, and the fact that we are kicking this issue down the road again. We could take action today to get the process moving. That is what Zach and his family want and what other people who have been subjected to this hideous bullying want. Without a firm timeframe for another way of getting this done, I am struggling to understand why we cannot do this today.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

The progress that the campaign has made, with the clear commitment from the Government that we are going to legislate for a specific epilepsy trolling offence, is a huge step forward. I entirely understand the hon. Lady’s impatience. I have tried to be as forthcoming as I can be about likely times, in answer to the question from the hon. Member for Aberdeen North, within the constraints of what is currently collectively agreed, beyond which I cannot step.

Amendment 112 will sort out the epilepsy, but unfortunately it will create duplicative criminal law. We cannot let our understandable sense of urgency end up creating a slightly dysfunctional criminal statute book. There is a path that is as clear as it reasonably can be. Members of the Committee will probably have inferred the plan from what I said earlier. This is a huge step forward. I suggest that we bank the win and get on with implementing it.

Photo of Dean Russell Dean Russell Chair, Speaker's Advisory Committee on Works of Art

I appreciate that there will be differences of opinion, but I feel that Zach should be smiling today whatever the outcome—if there is a vote, or if this is a probing amendment. When I have chatted about this previously over many months, it has been a real challenge. The Minister quite rightly said that the Bill already covered epilepsy. I felt that to be true. This is a firming up of the agreement we had. This is the first time I have heard this officially in any form. My message to Zach and the Epilepsy Society, who may well be watching the Committee, is that I hope they will see this as a win. With my head and my heart together, I feel that it is a win, but I forewarn the Minister that I will continue to be like a dog with a bone and make sure that those promises are delivered upon.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

I think that is probably a good place to leave my comments. I can offer public testimony of my hon. Friend’s tenacity in pursuing this issue.

I ask the hon. Member for Batley and Spen to withdraw the amendment. I have given the reasons why: because it would create duplicative criminal law. I have been clear about the path forward, so I hope that on that basis we can work together to get this legislated for as a new offence, which is what she, her constituent and my hon. Friends the Members for Watford and for Eastbourne and others have been calling for.

Photo of Kim Leadbeater Kim Leadbeater Labour, Batley and Spen

I appreciate the Minister’s comments and the support from across the House. I would like to the push the amendment to a vote.

Question put, That the amendment be made.

Division number 47 Online Safety Bill — Clause 150 - Harmful communications offence

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Photo of Christina Rees Christina Rees Labour/Co-operative, Neath

Amendment 113 was tabled by Paul Maynard, who is not on the Committee. Does any Member wish to move the amendment?

Amendment proposed: 113, in clause 150, page 127, line 28, at end insert “; or

(b) physical harm resulting from an epileptic seizure, where the seizure has been triggered by the intentional sending of flashing images to a person with epilepsy.”—

Question put, That the amendment be made.

Division number 48 Online Safety Bill — Clause 150 - Harmful communications offence

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of Christina Rees Christina Rees Labour/Co-operative, Neath

With this it will be convenient to discuss the following:

Clauses 151 to 155 stand part.

Clause 157 stand part.

Photo of Barbara Keeley Barbara Keeley Labour, Worsley and Eccles South

Part 10 of the Bill sets out three new offences involving harmful, false or threatening communications. Clause 156 includes a new offence on cyber-flashing, to which my hon. Friend the Member for Pontypridd will speak shortly.

For many years, charities have been calling for an update to the offences included in the Malicious Communications Act 1998 and the Communications Act 2003. Back in 2018, the Law Commission pointed out that using the criminal law to deal with harmful online conduct was hindered by several factors, including limited law enforcement capacity to pursue the scale of abusive communications, what the commission called a “persistent cultural tolerance” of online abuse, and difficulties in striking a balance between protecting people from harm and maintaining rights of freedom of expression—a debate that we keep coming to in Committee and one that is still raging today. Reform of the legislation governing harmful online communications is welcome—that is the first thing to say—but the points laid out by the Law Commission in 2018 still require attention if the new offences are to result in the reduction of harm.

My hon. Friend the Member for Batley and Spen spoke about the limited definition of harm, which relates to psychological harm but does not protect against all harms resulting from messages received online, including those that are physical. We also heard from the hon. Member for Ochil and South Perthshire about the importance of including an offence of encouraging or assisting self-harm, which we debated last week with schedule 7. I hope that the Minister will continue to upgrade the merits of new clause 36 when the time comes to vote on it.

Those are important improvements about what should constitute an offence, but we share the concerns of the sector about the extent to which the new offences will result in prosecution. The threshold for committing one of the offences in clause 150 is high. When someone sends the message, there must be

“a real and substantial risk that it would cause harm to a likely audience”,

and they must have

“no reasonable excuse for sending the message.”

The first problem is that the threshold of having to prove the intention to cause distress is an evidential threshold. Finding evidence to prove intent is notoriously difficult. Professor Clare McGlynn’s oral evidence to the Committee was clear:

“We know from the offence of non-consensual sending of sexual images that it is that threshold that limits prosecutions, but we are repeating that mistake here with this offence.”

Professor McGlynn highlighted the story of Gaia Pope. With your permission, Ms Rees, I will make brief reference to it, in citing the evidence given to the Committee. In the past few weeks, it has emerged that shortly before Gaia Pope went missing, she was sent indecent images through Facebook, which triggered post-traumatic stress disorder from a previous rape. Professor McGlynn said:

“We do not know why that man sent her those images, and I guess my question would be: does it actually matter why he sent them? Unfortunately, the Bill says that why he sent them does matter, despite the harm it caused, because it would only be a criminal offence if it could be proved that he sent them with the intention of causing distress or for sexual gratification and being reckless about causing distress.”––[Official Report, Online Safety Public Bill Committee, 24 May 2022; c. 58, Q105.]

The communications offences should be grounded upon consent rather than the motivation of the perpetrator. That is a clear omission in the Bill, which my hon. Friend the Member for Pontypridd will speak more about in relation to our amendments 41 and 42 to clause 156. The Government must act or risk missing a critical opportunity to tackle the harms resulting from communications offences.

We then come to the problem of the “reasonable excuse” defence and the “public interest” defence. Clause 150(5) sets out that the court must consider

“whether the message is, or is intended to be, a contribution to a matter of public interest”.

The wording in the clause states that this should not “determine the point”. If that is the case, why does the provision exist? Does the Minister recognise that there is a risk of the provision being abused? In a response to a question from the hon. Member for Aberdeen North, the Minister has previously said that:

“Clause 150…does not give a get-out-of-jail-free card”.––[Official Report, Online Safety Public Bill Committee, 7 June 2022; c. 275.]

Could he lay out what the purpose of this “matter of public interest” defence is? Combined with the reasonable excuse defence in subsection (1), the provisions risk sending the wrong message when it comes to balancing harms, particularly those experienced by women, of which we have already heard some awful examples.

There is a difference in the threshold of harm between clause 150, on harmful communications offences, and clause 151, on false communications offences. To constitute a false communications offence, the message sender must have

“intended the message, or the information in it, to cause non-trivial psychological or physical harm to a likely audience”.

To constitute a harmful communications offence, the message sender must have

“intended to cause harm to a likely audience” and there must have been

“a real and substantial risk that it would cause harm to a likely audience”.

Will the Minister set out the Government’s reasoning for that distinction? We need to get these clauses right because people have been let down by inadequate legislation and enforcement on harmful online communications offences for far too long.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Let me start by saying that many of these clauses have been developed in careful consultation with the Law Commission, which has taken a great deal of time to research and develop policy in this area. It is obviously quite a delicate area, and it is important to make sure that we get it right.

The Law Commission is the expert in this kind of thing, and it is right that the Government commissioned it, some years ago, to work on these provisions, and it is right that, by and large, we follow its expert advice in framing these offences, unless there is a very good reason not to. That is what we have done—we have followed the Law Commission’s advice, as we would be expected to do. The clauses replace previous offences—for example, those in the Malicious Communications Act 1998—and update and improve those provisions in the form we see them in the Bill.

The shadow Minister, the hon. Member for Worsley and Eccles South, asked a number of questions about the drafting of the clauses and the thresholds that have to be met for an offence to be committed. We are trying to strike a balance between criminalising communications that deserve to be criminalised and not criminalising communications that people would consider should fall below the criminal threshold. There is obviously a balance to strike in doing that. We do not want to infringe free speech by going too far and having legitimate criticism and debate being subject to criminal sanctions. There is a balance to strike here between, on the one hand, public protection and where the criminal law sits versus, on the other hand, free speech and people expressing themselves. That is why clause 150 is constructed as it is, on the advice of the Law Commission.

As the hon. Member set out, the offence is committed only where there is a “real and substantial risk” that the likely audience would suffer harm. Harm is defined as

“psychological harm amounting to at least serious distress.”

Serious distress is quite a high threshold—it is significant thing, not something trivial. It is important to make that clear.

The second limb is that there is an intention to cause harm. Intention can in some circumstances be difficult to prove, but there are also acts that are so obviously malicious that there can be no conceivable motivation or intention other than to cause harm, where the communication is so obviously malfeasant. In those cases, establishing intent is not too difficult.

In a number of specific areas, such as intimate image abuse, my right hon. Friend the Member for Basingstoke and others have powerfully suggested that establishing intent is an unreasonably high threshold, and that the bar should be set simply at consent. For the intimate image abuse offence, the bar is set at the consent level, not at intent. That is being worked through by the Law Commission and the Ministry of Justice, and I hope that it will be brought forward as soon as possible, in the same way as the epilepsy trolling offence that we discussed a short while ago. That work on intimate image abuse is under way, and consent, not intent, is the test.

For the generality of communications—the clause covers any communications; it is incredibly broad in scope—it is reasonable to have the intent test to avoid criminalising what people would consider to be an exercise of free speech. That is a balance that we have tried to strike. The intention behind the appalling communications that we have heard in evidence and elsewhere is clear: it is in inconceivable that there was any other motivation or intention than to cause harm.

There are some defences—well, not defences, but conditions to be met—in clause 150(1)(c). The person must have “no reasonable excuse”. Subsection (5) makes it clear that

“In deciding whether a person has a reasonable excuse…one of the factors that a court must consider (if it is relevant in a particular case) is whether the message is, or is intended to be, a contribution to a matter of public interest (but that does not determine the point)” of whether there is a reasonable excuse—it simply has to be taken into account by the court and balanced against the other considerations. That qualification has been put in for reasons of free speech.

There is a delicate balance to strike between criminalising what should be criminal and, at the same time, allowing reasonable free speech. There is a line to draw, and that is not easy, but I hope that, through my comments and the drafting of the clause, the Committee will see that that line has been drawn and a balance struck in a carefully calibrated way. I acknowledge that the matter is not straightforward, but we have addressed it with advice from the Law Commission, which is expert in this area. I commend clause 150 to the Committee.

The other clauses in this group are a little less contentious. Clause 151 sets out a new false communication offence, and I think it is pretty self-explanatory as drafted. The threatening communications offence in clause 152 is also fairly self-explanatory—the terms are pretty clear. Clause 153 contains interpretative provisions. Clause 154 sets out the extra-territorial application, and Clause 155 sets out the liability of corporate officers. Clause 157 repeals some of the old offences that the new provisions replace.

Those clauses—apart from clause 150—are all relatively straightforward. I hope that, in following the Law Commission’s advice, we have struck a carefully calibrated balance in the right place.

Photo of Barbara Keeley Barbara Keeley Labour, Worsley and Eccles South

I would like to take the Minister back to the question I asked about the public interest defence. There is a great deal of concern that a lot of the overlaying elements create loopholes. He did not answer specifically the question of the public interest defence, which, combined with the reasonable excuse defence, sends the wrong message.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

The two work together. On the reasonable excuse condition, for the offence to have been committed, it has to be established that there was no reasonable excuse. The matter of public interest condition—I think the hon. Lady is referring to subsection (5)—simply illustrates one of the ways in which a reasonable excuse can be established, but, as I said in my remarks, it is not determinative. It does not mean that someone can say, “There is public interest in what I am saying,” and they automatically have a reasonable excuse—it does not work automatically like that. That is why in brackets at the end of subsection (5) it says

“but that does not determine the point”.

That means that if a public interest argument was mounted, a magistrate or a jury, in deciding whether the condition in subsection (1)(c)—the “no reasonable excuse” condition—had been met, would balance the public interest argument, but it would not be determinative. A balancing exercise would be performed. I hope that provides some clarity about the way that will operate in practice.

Photo of Barbara Keeley Barbara Keeley Labour, Worsley and Eccles South 3:45 pm, 21st June 2022

That was about as clear as mud, actually, but let us leave it there.

Question put and agreed to.

Clause 150 accordingly ordered to stand part of the Bill.

Clauses 151 to 155 ordered to stand part of the Bill.