The Law Commission has today published proposals to better protect victims from harmful online behaviour including abusive messages or emails, cyberflashing, and pile-on harassment. Reforms to tackle the malicious sharing of information known to be false have also been proposed.
In the last two decades, the rise of the internet and social media has created extraordinary new opportunities to engage with one another on an unprecedented scale. However, the existing communications offences have not kept pace with changes in how we communicate: in some cases they fail to address harmful behaviours online, and in others they risk interfering with our rights to freedom of expression.
The proposals, laid out in the Law Commission’s consultation paper, aim to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse. This is balanced with the need to better protect the right to freedom of expression.
The proposals include:
- Reforms to the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.
- This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim).
- This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.
- The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.
- Cyberflashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.
- Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse.
Professor Penney Lewis, Criminal Law Commissioner said:
“As the internet and social media have become an everyday part of our lives, the amount of abuse has also risen. Unfortunately, the law has not kept up and isn’t giving victims the protection they need.
“Our proposals will tackle this harmful behaviour whilst also ensuring that we protect people’s freedom of speech.”
Digital Secretary Oliver Dowden said:
“Online communication has been a lifeline for many in recent months but it should not be a refuge for abusive, harmful or criminal behaviour.
“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.”
Online abuse is covered in the ‘communications offences’ found in section 1 of the MCA 1988 and section 127 of the CA 2003.
However, these laws suffer from a range of problems. 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, 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.
Proposals for reforms in more detail
The Law Commission’s proposals seek to strike the balance between protecting victims from harmful behaviour, whilst also better protecting the right to freedom of expression. The proposals are also “technologically neutral”. In other words, as the technology and behaviours change, the criminal law will be able to adapt so won’t be left behind.
We 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”. Our proposals would raise this threshold.
- Our 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.
- Our 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 we tackle.
We have also proposed reforms to cover cyberflashing 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, we 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 (“dick pics”) including when shared over AirDrop.
- That additional protections, such as Sexual Harm Prevention Orders, could be available when appropriate.
Other areas of reform
The consultation paper also asks questions – but does not put forward proposals – on a series of behaviours. We are interested in hearing consultees’ views on whether there should be specific offences covering:
- Incitement or encouragement of pile‑on harassment
- Knowing participation in pile‑on harassment
- Glorification of violence or of violent crime
- Incitement or encouragement of self‑harm