Purpose of reforms
Scope of reforms
The Law Commission has proposed reforms to communications offences to target serious harms from online abuse and protect freedom of expression.(1) The Law Commission's recommendations, which have been laid in Parliament, would reform the communications offences found in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. The commission has said that these offences do not provide consistent protection from harm and in some instances disproportionately interfere with freedom of expression.
The reforms would address the harms arising from online abuse by modernising the existing communications offences and ensuring that the law is clear and that it effectively targets serious harm and criminality. The recommendations aim to do this in a proportionate way in order to protect freedom of expression. They also seek to "future-proof" the law in this area as much as possible by not confining the offences to any particular mode or type of communication.
The commission has said that the current laws which govern online abusive behaviour are not working as well as they should. The existing offences are ineffective at criminalising genuinely harmful behaviour and in some instances disproportionately interfere with freedom of expression. Reliance on vague terms such as "grossly offensive" and "indecent" sets the threshold for criminality too low and potentially criminalises some forms of free expression that ought to be protected. For example, consensual "sexting" between adults could be indecent but is not worthy of criminalisation. Other behaviours, such as taking part in "pile-on harassment", which can be genuinely harmful and distressing, are not adequately criminalised. Additionally, the law does not effectively deal with behaviours such as "cyberflashing" and encouraging serious self-harm. The result is that the current law over-criminalises in some situations and under-criminalises in others.
The commission is recommending a new offence based on likely psychological harm. According to the commission, this will shift the focus away from the content of a communication (and whether it is indecent or grossly offensive) and towards its potentially significant harmful effects. The recommended new harm-based offence would criminalise behaviour if:
- the defendant sends or posts a communication that is likely to cause harm to a likely audience;
- in sending or posting the communication, the defendant intends to cause harm to a likely audience; and
- the defendant sends or posts the communication without a reasonable excuse.
Within the offence, "harm" refers to serious distress. This threshold is well known in criminal law, including in offences in the Protection from Harassment Act 1997. "Reasonable excuse" would include whether the communication was or was meant as a contribution to a matter of public interest. Media articles would be exempt from the offence.
This new offence could also capture "pile-on harassment", when a number of different individuals send harassing communications to a victim. The fact that the offence is context-specific means it could be applied where a person deliberately joins a pile-on intending to cause harm.
Other recommended offences
To complement the harm-based offence, the commission has made recommendations to ensure that the law is clearer and protects against a variety of abusive online behaviour:
- cyberflashing – the Sexual Offences Act 2003 should be amended to include the sending of images or video recordings of genitals (eg, via AirDrop) to recognise the violation of a victim's sexual autonomy without their consent. The offence would require that:
- the defendant intends to cause alarm, distress or humiliation; or
- the defendant is acting for a sexual purpose and is reckless as to whether the victim is caused alarm, distress or humiliation;
- encouragement or glorification of serious self-harm – an offence to target the intentional encouragement or assistance of self-harm at a high threshold (equivalent to grievous bodily harm). The change would ensure that the offence targets the most serious encouragement or assistance of self-harm without unduly criminalising vulnerable people;
- sending flashing images with intent to induce a seizure – a specific offence for sending flashing images to people with epilepsy with the intention of inducing seizures;
- knowingly false communications – a defendant would be liable if they knowingly send or post a communication that they know to be false and they intend to cause non-trivial emotional, psychological or physical harm to the likely audience without a reasonable excuse. This would raise the threshold for the offence currently in the Communications Act from knowingly causing "annoyance, inconvenience or needless anxiety" to causing "harm"; and
- threatening communications – the commission recommends a specific offence targeting communications that contain threats of serious harm. It would be an offence if the defendant intends the victim to fear that the threat will be carried out or the defendant is reckless as to whether the victim fears that the threat will be carried out. The offence defines "serious harm" as including serious injury (equivalent to grievous bodily harm in the Offences Against the Person Act 1861), rape and serious financial harm.
The reforms, if enacted, involve a shift away from prohibited categories of communication (eg, "grossly offensive") to focus on the harmful consequences of particular communications. The aim is to ensure that harmful communications are appropriately addressed while providing robust protection for freedom of expression.
For further information on this topic please contact Adelaide Lopez at Wiggin by telephone (+44 0 7826 798110) or email ([email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.
(1) To read the Law Commission's press release in full and for a link to the recommendations, click here.