Current project status
The current status of this project is: Analysis of responses.
List of project stages:
- Analysis of responses
- 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
Reform of the law is needed to protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false. The Law Commission consulted on a number of proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression. We launched our consultation paper on 11 September 2020, and the consultation period ran until 18 December 2020. We are now analysing the many responses to our consultation, which will inform development of our final recommendations, to be published in 2021.
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, 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, cyber-flashing) 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.
In our Consultation Paper launched on 11 September 2020, we make a number of proposals for reform 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:
- A new offence to replace 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.
- Cyber-flashing – 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.
Background to the project
Our work on the criminal law forms part of the work on Online Harms by the Department for Digital, Culture, Media and Sport (“DCMS”) and the Home Office, and has been funded by DCMS.
The Online Harms White Paper published by DCMS and the Home Office in 2019 focusses on the regulation of platforms (eg Twitter and Facebook), whereas – as we note in the terms of reference below – this Consultation Paper is addresses the criminal law provisions that apply to individuals and not the liability of platforms. The criminal law is an important but, ultimately, limited part of the solution to online harms, which will require not just criminal law and regulatory reform but also education and cultural change.
This Consultation Paper forms part of the second phase of the Scoping Report that we published in November 2018. The purpose of that Report was to assess the extent to which the current law achieved parity of treatment between online and offline offending. We noted that there was considerable scope for reform, and identified three distinct possible strands of work, comprising: (i) reform and consolidation of the criminal laws dealing with online communications; (ii) a review of the law of hate crime in England and Wales; and (iii) a review of the law concerning the non-consensual taking and sharing of intimate images. From that Scoping Report have therefore flowed the following separately-funded but related Law Commission projects:
- Reform of the Communications Offences (this project);
- Hate Crime; and
- 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.
The terms of reference for the review
The following terms were agreed with DCMS.
- The overall purpose of this project is to recommend reform of the criminal law relating to abusive and offensive online communications, following a period of public consultation.
- The project will cover:
- Reform and potential rationalisation of the current communications offences as they relate to online communication, with the aim of achieving a coherent set of offences that ensure online users are adequately protected by the criminal law.
- Where necessary, consideration of the meaning of “obscene”, “grossly offensive”, and “indecent”, as well as the definitions of “publish”, “display”, “possession”, and “public place” and of how we can best achieve clarity and certainty of the law for people communicating online.
- Consideration of online communications which amount to the glorification of self-harm and of violent crime and how these might be addressed in the context of any reform of the communication offences.
- In addressing the topics above, the Commission will be mindful to ensure that any recommendations for reform do not create incoherence or gaps in the criminal law as it relates to abusive and offensive communication offline.
- The Law Commission will also conduct a review to consider whether coordinated harassment by groups of people online could be more effectively addressed by the criminal law. This work on group harassment will form an extension of the online communications project.
Topics not in scope of this project
The following areas are outside the scope of this project:
- terrorist offences committed online;
- child sexual exploitation; and
- platform liability.
Any recommendations will therefore not address these topics.
Contacting the Commission
If you would like to be kept up to date with this project, please contact the Law Commission on email@example.com and we will add you to our mailing list.
Area of law
Professor Penney Lewis