February 12, 2018

The Government has asked the Law Commission to review the laws around offensive communications and to assess whether they provide the right protection to victims online.

The Law Commission explains that with research showing that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyber bullying last year, it will provide a “robust review” of the current laws and set out how they apply to online communications.

The Commission expects to publish its review within six months of when work starts in April. If deficiencies in the current law are identified the Commission has agreed to carry out further work, looking at potential options for reform. This will be informed by developing Government policy in the Government Digital Charter, which aims to make the UK the safest place in the world online.

In particular, the Commission will analyse:

• how the Malicious Communications Act 1988 deals with offensive online communications;
• how the Communications Act 2003 deals with online communications;
• what “grossly offensive” means and whether that poses difficulties in legal certainty;
• whether the law requires a proof of fault or intention in a prosecution for offensive online communications;
• the need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”; and
• how other parts of the criminal law overlap with online communications laws.

The Government already has active programmes of work in some areas of online communications offences. As a result the Commission says that it will not consider:

• terrorist offences committed online;
• child sexual exploitation; and
• platform liability.

Following this analysis of the law, the Commission will undertake a further six month project before making recommendations to the Government, informed by public consultation.

Law Commissioner Professor David Ormerod QC said: “There are laws in place to stop abuse but we’ve moved on from the age of green ink and poison pens. The digital world throws up new questions and we need to make sure that the law is robust and flexible enough to answer them. If we are to be safe, both on and off line, the criminal law must offer appropriate protection in both spaces. …”. To read the Law Commission’s press release in full, click here.