Law Commission publishes reforms targeting serious harm arising from online abuse.

The question

Will the proposed reforms targeting serious harms arising from online abuse be more effective at criminalising harmful behaviour? 

The key takeaway

Current laws governing online abusive behaviour are often ineffective at criminalising generally harmful behaviour and in some instances disproportionately interfere with the right of free speech. The Law Commission (Commission) has therefore sought to modernise the law to address online and offline communications in a proportionate and efficient way. This is similar to the recent House of Lords report that suggested the Online Safety Bill does not go far enough to criminalise certain behaviour’s online. 

The background

The rise of the internet and social media in the 21st century has created extraordinary new opportunities to engage with each other on an unprecedented scale. However, the Commission says that the current laws that govern online abusive behaviour are not as effective as they should be in that they over-criminalise in some areas and under-criminalise in others. The Commission has therefore proposed a number of reforms targeting serious harms arising from online abuse while protecting freedom of expression more effectively. The recommendations would reform the “Communications offences” found in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. These offences do not provide consistent protection from harm and in some instances disproportionately interfere with freedom of expression. The Commission focuses on recommending a new offence based on likely psychological harm, and other offences to tackle cyberflashing, the encouragement or assistance of serious self-harm and sending knowingly false communications. 

The development

The new harm-based offence 

The Commission is recommending a new offence based on likely psychological harm. This will shift the focus away from the content of a communication (and whether it is indecent or grossly offensive) toward its potentially significant harmful effects. As such, the 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.

To complement the harm-based offence, the Commission has made recommendations to ensure the law is clearer and protects against a variety of abusive online behaviour including: 

• False communications: A new offence of knowingly sending or posting a false communication with the intention of causing non-trivial psychological or physical harm to a likely audience, without reasonable excuse.
• Cyberflashing: Amending s55 of the Sexual Offences Act 200 to include the sending of images or video recordings of genitals with the aim of causing alarm, distress or humiliation to the victim.
• Threatening communications: A specific offence targeting communications that contain threats of serious harm, designed to deal with the most serious threatening communications. It will be an offence if: (a) the defendant sends or posts a communication that is a threat of serious harm; and (b) in conveying this threat, the defendant intends the victim to fear that that threat would be carried out.
• Encouragement or glorification of serious self-harm: A new offence targeting intentional encouragement or assistance of self-harm at a high threshold. The offence will be committed where the defendant encourages or assists self-harm at a high threshold (equivalent to grievous bodily harm).

Why is this important?

The reforms, if enacted, involve a shift away from prohibited categories of communication (eg “grossly offensive”) to focus on the harmful consequences of particular communications. The aim is to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse, balanced with the need to provide robust protection for freedom of expression. The reforms 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.

Any practical tips?

Platforms should get ahead of the game and ensure they have the rigorous systems in place to protect people online, before it is soon formally introduced in new legislation. Areas to consider include: age gating; robust monitoring and reporting measures in place in order to seek out and remove harmful content; and user self-verification to make it easier to identify those that seek to cause harm.