The Law Commission, which advises the government on law reform has published a report advising changes to laws covering online abuse.
Online abuse is covered in the ‘communications offences’ found in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003.
The Law Commission believes that “these laws suffer from a range of problems. They argue that the offences do not adequately criminalise certain conduct – such as cyberflashing and pile‑on harassment – while the threshold of criminality, especially when applied to the online space, is often set too low. This can mean that freedom of speech is not properly protected.”
In short, they argue that these offences do not target the harms arising from online abuse. The result is that “the law over‑criminalises in some situations, and under‑criminalises in others”.
The Commission provisionally propose two complementary offences to replace section 1 of the MCA 1988 and section 127 of the CA 2003:
The first new offence relates to a defendant sending or posting a communication that was likely to cause harm to a likely audience. It would apply where a defendant intends to harm, or is aware of a risk of harming when sending or posting a communication, without reasonable excuse for doing so. The offence does not require proof that anyone was actually harmed.
- The aim of this proposed reform is to provide an effective mechanism for addressing a range of online behaviours.
- This could cover harmful and abusive emails, social media posts and WhatsApp messages, as well as pile-on harassment.
- The audience could include the recipient of a message, the defendant’s social media followers or other people – for example, someone else who sees a harmful tweet on Twitter.
- “Without reasonable excuse” is an element of the offence that must be proven by the prosecution.
- “Reasonable excuse” should be defined to include where the communication either was or was meant as a contribution to a matter of public interest. Under the proposals, the jury or magistrate will decide whether the defendant acted without reasonable excuse, but this factor must be considered. This requirement helps to ensure that freedom of expression is adequately protected. For example, it is unlikely that someone criticising the decision of a politician on Twitter, or airing a view on a particularly controversial issue, would be found to lack reasonable excuse.
The second new offence addresses knowingly false communications. Under the existing offence, it is a crime to send a knowingly false communication for the purpose of causing “annoyance, inconvenience or needless anxiety”. These new proposals would raise this threshold.
- The suggested threshold would be met if the defendant sends or post a communication that they know to be false, they intend to cause non‑trivial emotional, psychological, or physical harm to a likely audience, and they send it without reasonable excuse.
- The proposals wouldn’t cover communications that the defendant believes to be true – no matter how dangerous those communications may be.
The issue of ‘fake news’ lies beyond the terms of reference of this project so is not an issue that they address.
The Commission have also proposed reforms to cover cyber flashing which, for victims, is often experienced as a form of sexual harassment, involving coercive sexual intrusion into their lives. Whilst much of this behaviour would be captured by the proposed reforms, outlined above, they are also proposing:
- Amending Section 66 of the Sexual Offences Act 2003 to include the sending of images or video recordings of one’s genitals including when shared over AirDrop.
- That additional protections, such as Sexual Harm Prevention Orders, could be available when appropriate.
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