In recent years there has been a lot of debate on the way harmful communications online are dealt with and how criminal law plays its part in combating it. The commissioner of law stated that the law hadn’t “kept pace with the technological changes.” In that light, the law commission has published a set of recommendations that address the harms of online abuse. Protections concerning “freedom of expression” are likely to increase.
The law commission is an independent entity and was set by the parliament to keep laws in England and Wales under review and to recommend reformation. The Law commission constitutes a chairman with four law commissioners.
The project is government-funded and is a part of its Online Harms Strategy. The Law Commission also worked on two Sister projects on hate crime and the manipulation and sharing of intimate images without the persons’ consent. The reforms are focused on offences in the Communications Act 2003 and the Malicious Communication Act 1988.
The Law Commission believed that the current offences need reformation as they are inconsistent in protecting from online harms and in certain circumstances restrict freedom of expression. The review also states criminal law covering threatening and false communications and assisting in self-harm and cyber flashing. These new recommendations have been put forward because the previous laws governing online abuse were ineffective against online harm. They would often over criminalise certain situations and under criminalise others.
The objective is to ensure that the laws keep pace with the advancements in technology and are future-proofed alongside giving netizens a space, free of harm and abuse, for discussion without interfering with freedom of expression.
What Is The Problem?
Online communications have advanced immensely and now offer various opportunities to communicate with people. The magnanimity of these communications presents an increased possibility of harm. For instance, thousands of people from around the globe can target one single individual, or a local abuser can easily exert control over a victim – the physical boundaries of your home provide no refuge for the bullied.
The current offences do not take into account such a broad range of conduct or integrate harmful conduct, such as cyber flashing or have serious criminal sanctions.
The law commission deemed the criminal laws that directly address communication offences in the aforementioned acts as “overlapping, ambiguous and can be unclear” for netizens, law enforcement agencies and technology companies. Addressing “pile-on” harassment to an individual online by a group of people is also lacking in these communication offences as the online world was not taken into account.
The Commission’s main focus is to narrow down broad offences so they do not restrict or hinder the right to freedom of expression.
Harm Based Offence
The first recommendation is for new “harm-based” communications, replacing two existing offences of the Communications Act 2003 (section 127(1)) and the Malicious Communications Act 1988 (section 1).
The harm here is described as psychological or emotional harm rather than physical harm. The new offence aims to be more context-specific rather than focusing on vague categories of wrongful content. The Commission does not want to criminalise communications that are “grossly offensive” but lack the potential for harm. Alongside this, they aim to ensure that harmful communications do not evade criminal sanctions.
Likewise, the issue of purposely sending flashing images to an epilepsy patient is also debated. The government has been recommended to consider the introduction of such specific offences. The recommended offence is:
- An individual(s) posts something online that is likely to cause harm to a likely audience.
- An individual(s) posts a communication with the intent to cause harm to a likely audience.
- An individual(s) posts a communication without a reasonable excuse.
Encouraging or Assisting Serious Self-Harm
Evidence of “deeply troubling behaviour” was received by the Commission entails targeting vulnerable people and encouraging them to self-harm. This offence targets encouragement and assistance of self-harm at a high threshold – equivalent to GBH (grievous bodily harm). The change will ensure that the offence targets intentional encouragement of self-harm without excessively criminalising vulnerable people.
Cyberflashing is defined as the unsolicited sending of sexual images through digital technology. The Sexual Offences Act 2003 was amended to add the communication of images or videos of genitals. The offence recommends recognising the violation of the victim’s sexual independence without their consent. The offence would require either of the following:
- The defendant intends to cause alarm, distress and humiliation.
- The defendant is acting for a sexual motive.
- The defendant is unbothered and reckless regarding whether they caused alarm, distress or humiliation to the victim.
It also means that additional protections such as sexual harm prevention orders could also be available.
Sending Knowingly False Communications, Threatening Communications, and Making Hoax Calls to the Emergency Services
- Knowingly false communications: Currently, the offence of knowingly sending a false communication has a low threshold: “causing annoyance, inconvenience or needless anxiety”. The defendant would be held responsible if they knowingly send or post a communication that they are aware is false and intended to cause harm – physical, psychological or non-trivial emotional harm, to a likely audience without a reasonable excuse.
- Threatening communications: this offence specifically targets communications that contain threats of serious harm. It is an offence if the
- Defendant intends that the victim fear that the threat will be carried out.
- Defendant is reckless to whether the victim fears that the threat will be carried out.
The offence describes “serious harm” as including serious injury (equivalent to GBH), rape and financial harm.
- Hoax Calls to Emergency Services: the provisional proposal concerning hoax calls is to make it a specific offence. As of now, it is addressed under the communications act 2003. The report is currently under review regarding consideration of the recommendations by the government.
How Can We Help?
If you require specialist advice on a matter of criminal law, Royce Legal Solicitors have your back. Contact our criminal law team at 01706 655 592 to guide you. We advise on pleas, defences and potential sentences according to your circumstances. The above is a preliminary guide, and therefore for definitive guidance, we urge you to contact us.