November 5, 2018

According to the new Law Commission Report, reforms to the law are required to protect victims from online and social media-based abuse.  The Report finds a lack of coherence in the current criminal law, which causes problems for victims, police and prosecutors.  The Report is also critical of the current law’s ability to protect people harmed by a range of behaviour online including:

• receiving abusive and offensive communications;
• “pile on” harassment, often on social media; and
• misuse of private images and information.

The Commission is calling for:

1. reform and consolidation of existing criminal laws dealing with offensive and abusive communications online;
2. a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment; and
3. a review of how effectively the criminal law protects personal privacy online.

The Law Commission was asked to assess whether the current criminal law achieved parity of treatment between online and offline offending.  For the most part, the Commission has concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending.  However, it considers there is considerable scope for reform:

• many of the applicable offences do not adequately reflect the nature of some of the offending behaviour in the online environment, and the degree of harm it can cause;
• practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context;
• more generally, criminal offences could be improved so they are clearer and more effectively target serious harm and criminality;
• the large number of overlapping offences can cause confusion; and
• ambiguous terms such as “gross offensiveness” “obscenity” and “indecency” do not provide the required clarity for prosecutors.

The Report finds that reforms would help to tackle and reduce not only online abuse and offence generally, but also:

• “pile on” harassment, where online harassment is coordinated against an individual. The Report notes that “in practice, it appears that the criminal law is having little effect in punishing and deterring certain forms of group abuse”; and
• the most serious privacy breaches, for example, the laws around sharing of private sexual images. The Report also questions whether the law is adequate to deal with victims who find their personal information e.g. about their health or sexual history, widely spread online.

The Department for Digital, Culture, Media and Sport will now analyse the Report and decide on the next steps including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.  To access the Law Commission’s Report, click here.