Law Commission Proposes Reforms To Communications Offences To Target Serious Harms From Online Abuse And To Protect Freedom Of Expression

Publication Date28 July 2021
SubjectMedia, Telecoms, IT, Entertainment, Criminal Law, Social Media, Crime
Law FirmWiggin
AuthorMs Adelaide Lopez

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...

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