July 26, 2021
The Law Commission’s recommendations, which have been laid in Parliament, would reform the “communications offences” found in s 1 of the Malicious Communications Act 1988 and s 127 of the Communications Act 2003. The Commission says 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, ensuring that the law is clearer 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 says that current laws that 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 like “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. This will, it says, shift the focus away from the content of a communication (and whether it is indecent or grossly offensive) toward 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 reasonable excuse.
Within the offence, harm refers to serious distress. This threshold is one well-known to the 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.
To complement the harm-based offence, the Commission has made recommendations to ensure 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, for example, “dick pics” sent via AirDrop; to recognise the violation of a victim’s sexual autonomy without their consent, the offence would require either that the defendant intends to cause alarm, distress or humiliation, or if the defendant is acting for a sexual purpose, the defendant is reckless as to whether the victim is caused alarm, distress or humiliation;
- encouragement or glorification of serious self-harm: an offence to target 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 2003 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 where the defendant intends the victim to fear 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 (e.g. “grossly offensive”) to focus on the harmful consequences of particular communications. The aim is to ensure harmful communications are appropriately addressed while providing robust protection for freedom of expression. To read the Law Commission’s press release in full and for a link to the recommendations, click here.