Reform of the Communications Offences

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The Government accepted the Law Commission’s recommendations to reform the communications offences, made in the 2021 Modernising Communications Offences report. The majority of the recommended offences, including offences of cyberflashing and encouraging or assisting serious self-harm, were implemented in the Online Safety Act 2023.

Download the report here.

Download a summary of the report here.

Read the interim response from DCMS here.

A Welsh translation of the report will be available soon.

The problem

The revolution in online communications has offered extraordinary new opportunities to communicate with one another and on an unprecedented scale. However, those opportunities also present increased scope for harm: the physical boundaries of a home now afford no haven to the bullied; the domestic-abuser can exert ever greater control over the life of the abused; many thousands of people can now abuse a single person at once and from anywhere in the world. The examples are many.

As we noted in our Scoping Report on Abusive and Offensive Online Communications in 2018 and expanded on in our Consultation Paper in 2020, the current criminal offences are ill-suited to addressing these harms. The broad nature of some of the offences does allow for their use across a wide range of conduct, although often the threshold of criminality when applied to the online space is set too low. Other forms of harmful communications (such as, for example, cyberflashing) are either left without criminal sanction or without sufficiently serious criminal sanction.

The criminal laws that most directly address online communications (what we call the “communications offences” in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003) are overlapping, ambiguous and can be unclear for online users, technology companies and law enforcement agencies alike. It is, for example, an offence to send a “grossly offensive” or “indecent” communication, but it is difficult to know exactly what those terms mean or where the line is crossed from a merely “offensive” communication into a message which may amount to criminal conduct. Some behaviours – such as when a group of people coordinate to “pile on” harassment to an individual online – are not specifically addressed by the communications offences, and it is difficult to apply other existing criminal offences that were not created with the online world in mind.

We are also concerned that the current offences are sufficiently broad that they could, in certain circumstances, constitute a disproportionate interference in the right to freedom of expression. Any criminal law solution to the problem therefore needs to offer effective protection from the harmful behaviours that have developed in the online space, whilst also ensuring that people have the freedom to express themselves, to interrogate orthodoxy, and to share ideas.

Our project

This is a review of the criminal law governing harmful, threatening, and false communications, as well as encouraging and assisting serious self-harm, and cyberflashing. We published our final recommendations on 21 July 2021. The recommendations in this report are designed to modernise the criminal law: to ensure the law works effectively in the new technological paradigm, and is future-proofed; to ensure the criminal law can be a useful tool in protecting people from genuine harm and abuse; and, in a world where we communicate widely and publicly to share or challenge complex and controversial ideas, to ensure the criminal law allows space for that discussion and does not disproportionately interfere in people’s legitimate freedom of expression.

This project was funded by the Department for Digital, Culture, Media & Sport (“DCMS”) as part of the Government’s Online Harms strategy. That strategy includes regulation of platforms; this regulatory framework is important context for our reforms, but it is not the focus of those reforms. This report is concerned to address the criminal law provisions that apply to individuals and not the liability of platforms. The inescapable reality is that the criminal law is a relatively cumbersome and expensive tool: it should be, and can only be, reserved for more seriously culpable communications. It is an important part of the solution to the problem of harmful communications, but a necessarily limited one.

The report represents the third and final publication in this area. We published a scoping report in November 2018, and a Consultation Paper in September 2020. There are also two separate but necessarily related Law Commission projects:

1. Hate Crime; and
2. Taking, Making, and Sharing Intimate Images without Consent.

It is worth noting that the Hate Crime project and this project deal with different (albeit occasionally overlapping) issues. A proportion of online abuse can be, and often is, described as “online hate”. Indeed, a significant subset of online abuse is targeted at people on the basis of their race, religion, sexual orientation, transgender status, or disability, which are “protected characteristics” for the purposes of hate crime law. However, not all abusive online communications amount to online hate. Equally, hate crime can encompass a wide range of behaviour – including, for example, acts of physical violence against people because of their race or sexual orientation, or criminal damage to businesses or places of worship – as well as hate speech.

Topics not in scope of this project

The following areas are outside the scope of this project:

1. terrorist offences committed online;
2. child sexual exploitation; and
3. platform liability

Our recommendations do not therefore address these topics.

Our recommendations

In the report, we recommend the following new or reformed criminal offences:

1. a new “harm-based” communications offence to replace the offences within section 127(1) of the Communications Act 2003 (“CA 2003”) and the Malicious Communications Act 1988 (“MCA 1988”);
2. a new offence of encouraging or assisting serious self-harm;
3. a new offence of cyberflashing; and,
4. new offences of sending knowingly false communications, threatening communications, and making hoax calls to the emergency services, to replace section 127(2) of the CA 2003.

Central to our recommended harm-based offence is a move away from a focus on broad categories of wrongful content (such as “grossly offensive”), to a more context-specific analysis: given those who are likely to see a communication, was harm likely? The aim is to ensure that communications that are genuinely harmful do not escape criminal sanction merely because they do not fit within one of the proscribed categories. Secondly, communications that lack the potential for harm are not criminalised merely because they might be described as grossly offensive or indecent, etc.

We also discuss the issue of flashing images being sent maliciously to known sufferers of epilepsy. We did not consult on a specific form of criminal offence for this behaviour, and therefore do not make recommendations as to the precise form of the offence, but we do recommend the government introduce a specific offence to address this behaviour.

We also consider the growing phenomenon of pile-on harassment, as well as the glorification of violent crime. However, as we explain, we do not make recommendations for specific offences to address this behaviour. We were not persuaded that specific offences to tackle these matters would be necessary, effective, or desirable. We believe the “harm-based” communications offence would capture pile-on harassment, and existing offences could also be used to prosecute those who co-ordinate pile-on harassment.

The recommendations aim both to offer better protection for freedom of expression, and also to address effectively the harms arising from online abuse. The report sets out the ways in which the law could be modernised to address online and offline communications in a proportionate and efficient way.

The summary of the report and the report itself explain our recommendations and the reasoning behind them.

Next steps

The Government accepted the Law Commission’s recommendations to reform the communications offences, made in the 2021 Modernising Communications Offences report. The majority of the recommended offences were implemented in the Online Safety Act 2023. These include offences of cyberflashing, encouraging or assisting serious self-harm, sending or showing flashing images electronically with the intention of causing harm to people with epilepsy, and various communications offences that amend the Malicious Communications Act 1988 and the Communications Act 2003.

Contacting the Commission

If you have a question about the report, please email criminal@lawcommission.gov.uk.