I am grateful to my noble friends Lady Buscombe and Lord Leicester and my noble and learned friend Lord Garnier for the amendments that they have tabled, with which we began this helpful debate, as well as for their time earlier this week to discuss them. We had a good debate on this topic in Committee and I had a good discussion with my noble friend Lady Buscombe and my noble and learned friend Lord Garnier on Monday. I will explain why the Government cannot accept the amendments that they have brought forward today.
I understand my noble friends’ concerns about the impact that fake reviews can have on businesses, but the Bill and the criminal offences it contains are not the right place to address this issue. The amendments would broaden the scope of the offences and likely result in overcriminalisation, which I know my noble friends would not want to see.
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I reassure my noble friends that, as we have discussed, the Digital Markets, Competition and Consumers Bill will address these issues by including a power to take stronger action against fake and misleading reviews. Schedule 18 to that Bill sets out a power for the Secretary of State to that effect. While that Bill does not place duties on private individuals acting in a personal capacity, the proposals are likely to require traders hosting reviews to take reasonable and proportionate steps to ensure that they represent a genuine consumer experience.
The Government will also consult on what is reasonable and proportionate for businesses to do to ensure that reviews are genuine and do not unduly harm businesses or the people who own them. My noble friends’ Amendment 5A would represent a significant expansion of the communications offences in the Bill. It would criminalise a wide range of conduct other than sending messages. Criminalising conduct which is merely capable of encouraging someone else to send a message would represent a significant risk to freedom of expression and is beyond the scope of the offence we have drafted. While I remain sympathetic to my noble friends about the malignant behaviour they have highlighted and the impact on the people who own the businesses affected, I continue to agree to disagree with my noble and learned friend Lord Garnier about whether this is a matter for this Bill. I continue to point him and my noble friends in the direction of the Digital Markets, Competition and Consumers Bill, which my noble friend Lord Camrose will take through; he has heard the points my noble friends have raised today and in earlier stages of the Online Safety Bill.
Amendment 3, tabled by the noble Baroness, Lady Kennedy of The Shaws, seeks to amend the definition of the offence in Clause 164(1) to add the threats of “rape” and “disfigurement” to the existing description, which includes “a threat of death”. Her Amendment 5 is consequential. I am very grateful to the noble Baroness for her time yesterday to discuss her amendments. The Government agree that threats of rape and disfigurement are truly abhorrent—she set out some harrowing examples—and should be captured in criminal law, which is why the offence, as drafted, already covers these threats. Rape is included in the definition of “serious harm”. As I discussed with the noble Baroness yesterday, disfigurement would also be captured under the definition of “serious harm”, as it would constitute grievous bodily harm.
I know that the noble Baroness has come across some very distressing examples of threats to disfigure in her work on tackling misogyny, including the review she mentioned that she chaired for the Scottish Government, but if disfigurement were specified separately in this offence, it could introduce ambiguity about the ambit of serious harm. Grievous bodily harm is an established and well-understood legal concept; singling out disfigurement could lead to uncertainty in the law about other harms which amount to grievous bodily harm.
The noble Baroness’s Amendment 4 seeks to clarify that a person who sends a threatening message would meet the threshold of this offence, even if the threat were carried out by “another individual”. The offence, as drafted, does not require the threat to be carried out by a particular person, but following the helpful discussions with the noble Baroness yesterday, I am happy to acknowledge the need for greater clarity here. While her amendment would make it clearer that the offence will capture scenarios where the recipient feared that the threat would be carried out by the sender or a different individual, it could restrict this to specific or identifiable individuals. This would apply only where there was an intention, and not where a sender is reckless as to causing the recipient to fear the threat being carried out. As the noble Baroness knows,
while we cannot accept the amendment as she has drafted it, we are happy to commit to bringing forward a government amendment at Third Reading to clarify that the offence is committed whether or not the threat would be carried out by the person who sent the message. I am very grateful to her for pressing this issue.
Amendment 5B, tabled by the noble Lords, Lord Allan of Hallam and Lord Clement-Jones, seeks to ensure that the new serious self-harm offence does not lead to the prosecution of people sharing content to support people at risk of self-harm. I fully understand the concern which has prompted their amendment, and I reassure them that the offence has been developed with the aim of ensuring that it does not criminalise the sorts of people that they mentioned. The Law Commission addressed this issue and was confident that the inclusion of the two key elements it recommended—an intention to encourage or assist another person to harm themselves, and a threshold of harm consistent with grievous bodily harm—will constrain the offence to only the most culpable offending.
We expect these tight parameters and the usual prosecutorial discretion to provide sufficient safeguards against inappropriate prosecutions. The defence of necessity may also serve to ensure that actions undertaken in extraordinary circumstances to mitigate more serious harm should not be criminal. The offence of encouraging or assisting suicide has not led to the prosecution of vulnerable people who talk about suicidal feelings online or those who offer them support, and there is no reason to suppose that this offence will criminalise those whom this amendment seeks to protect. However, the noble Lords raise an important issue and I assure them that we will keep the operation of the offence under review. The Government have committed to expanding it to cover all ways of encouraging or assisting self-harm so there will be an opportunity to revisit it in due course.