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July 26, 2016
The Law Commission has identified certain areas of law that it suggests may require reform. One of these is dealing with offensive online communications.
At present, in England and Wales, the criminal law seeks to tackle offensive internet communications through a number of legislative provisions, many of which precede the digital age and vast growth in the use of social media. For example, Part 1 of the Malicious Communications Act 1988 makes it an offence to send a communication which is “indecent or grossly offensive” with the intention of causing “distress or anxiety”; and s 127 of the Communications Act 2003 applies to threats and statements known to be false, but also contains areas of overlap with the 1988 Act. 1209 people were convicted under s 127 in 2014, (compared to 143 people in 2004). Part 1 of the Malicious Communications Act saw a ten-fold increase in the number of convictions over the same period.
The Crown Prosecution Service issued charging guidelines in 2013 following a string of high profile prosecutions after the case of Chambers v DPP  EWHC 2157 (QB) (in which the High Court overturned a conviction for posting a joke threatening to blow up Robin Hood Airport). The CPS guidelines urged restraint in consideration of freedom of expression. Guidelines are, however, no substitute for clearer statutory provisions, the Commission says.
The Commission notes that the free speech advocates, Article 19, raised concerns about the ambiguity in their evidence to the House of Lords Communications Committee in 2014. They highlighted the confusion surrounding the broad definition of “grossly offensive” in the 1988 and 2003 Acts, which may fall foul of the principle of legal certainty. This confusion is increased by the scarcity of legal argument available due to the frequency of guilty pleas in cases of this nature.
Two recent cases, which saw offenders boasting on Facebook after receiving suspended sentences, have raised further questions regarding whether the current law is fit for purpose. In both cases, suspended sentences were revoked in favour of custody, yet there is a lack of clarity regarding the underlying criminal offences.
In addition to the 1988 and 2003 Acts, online abuse may be caught by several other provisions. The scope and inter-relationship between these provisions (covering, among other things, harassment, public order offences and revenge porn) is unclear, the Commission says. “There is a clear public interest in tackling online abuse and “trolling”, but this must be done through clear, and predictable legal provisions”.
In its consultation, the Commission is asking whether the current law is capable of dealing with offensive internet communications, whether there is scope for simplifying the law in this difficult area, and whether this area of the law should be included in the Commission’s 13th Programme of law reform. The consultation closes on 31 October 2016. To access the consultation, click here.