September 28, 2020

The Law Commission says that reform of the law in this area is needed to protect victims from harmful online behaviour, including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Commission is therefore consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression.

The Commission says that its proposals for reform aim to ensure that the law is clearer and that it effectively targets serious harm and criminality arising from online abuse. The proposals include:

• a new offence to replace the communications offences (the Malicious Communications Act 1988 and the Communications Act 2003), to criminalise behaviour where a communication would “likely cause harm”. This would include:
  • emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim);
  • communications sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the 2003 Act;
  • an introduction of the requirement to prove “likely harm”. Currently, neither proof of “likely harm” nor proof of “actual harm” are required under the existing communications offences.
• cyber-flashing (the unsolicited sending of images or video recordings of one’s genitals) should be included as a sexual offence under s 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available; and
• raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non-trivial emotional, psychological, or physical harm, and if they have no excuse.

The consultation runs until 18 December 2020. To access the consultation, click here.