The Law Commission has set out proposals for how criminal law can be changed to better deal with offensive online communications, including abusive messages, “cyber flashing”, pile-on harassment and the deliberate sending of false information.
According to the Law Commission, an independent statutory body created to review the law of England and Wales, existing communications laws have failed keep pace with changes in how we communicate.
This includes the Malicious Communications Act 1988 (MCA 88) and the Communications Act 2003 (CA 03), which the Law Commission claims “over-criminalises in some situations, and under‑criminalises in others”.
“As the internet and social media have become an everyday part of our lives, the amount of abuse has also risen,” said criminal law commissioner Penney Lewis.
“Unfortunately the law has not kept up and isn’t giving victims the protection they need,” said Lewis. “Our proposals will tackle this harmful behaviour whilst also ensuring that we protect people’s freedom of speech.”
In its proposals, published in a consultation paper on 11 September, the Law Commission wants to reform the communications offences in order to criminalise behaviours that would “likely cause harm.”
This 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. It would cover emails, social media posts and WhatsApp messages, and would include communications sent over private networks such as Bluetooth or a local intranet, which are not currently covered under CA 03.
The Law Commission’s second proposal for new criminal offences addresses knowingly false communications, as while it is already a crime to send a knowingly false communication for the purpose of causing “annoyance, inconvenience or needless anxiety”, the Commission’s proposal would raise this threshold.
“Our suggested threshold would be met if the defendant sends or posts 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,” said the Law Commission’s press release, adding that it would not cover communications the sender genuinely believes to be true.
The consultation paper also asks whether there should be specific offences covering a series of other behaviours – including the glorification of violence or violent crime, and the incitement or encouragement of self-harm – but does not put forward any proposals as the Law Commission is yet to consult with stakeholders on the issues.
The Law Commission will be consulting on its proposals until 18 December 2020. Once the consultation period closes, the Law Commission will analyse the responses, and use them to help develop recommendations for consideration by parliament.
“Online communication has been a lifeline for many in recent months but it should not be a refuge for abusive, harmful or criminal behaviour,” said digital secretary Oliver Dowden. “I thank the Law Commission for its review and look forward to seeing the final recommendations on its proposed reforms to criminal law next year.
“We will soon introduce new legislation to put more responsibility on companies so they have the right systems in place to protect people online.”
Frustration over delays
However, both Lords and MPs have previously expressed frustration over delays in the online harms bill, as well as the lack of a full government response to the online harms white paper published in April 2019, which put forward the world’s first framework designed to hold internet companies accountable for the safety of their users.
The government gave its initial response to the white paper in February 2020, when it put forward the proposal for Ofcom to be the online harms regulator. But in the government’s own press release announcing its initial response, it said the full response would be “published in the spring [of 2020]”.
In late June, a House of Lords select committee said the government should act immediately to deal with a “pandemic of misinformation”, and introduce a draft online harms bill as a matter of urgency so that tech giants can be held responsible for the harm done to individuals, wider society and democratic processes through online misinformation.