More than 70% of UK adults have a social media profile and internet users spend over four hours online each day on average. Whilst the online world offers important opportunities to share ideas and engage with one another, it has also increased the scope for abuse and harm. A report by the Alan Turing institute estimates that approximately one third of people in the UK been exposed to online abuse.
The recommendations, which have been laid in Parliament, would reform the “communications offences” found in section 1 of the Malicious Communications Act 1988 (“MCA 1988”) and section 127 of the Communications Act 2003 (“CA 2003”). These offences do not provide consistent protection from harm and in some instances disproportionately interfere with freedom of expression.
The reforms would address the harms arising from online abuse by modernising the existing communications offences, ensuring that the law is clearer and that it effectively targets serious harm and criminality. The recommendations aim to do this in a proportionate way in order to protect freedom of expression. They 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.
Professor Penney Lewis, Criminal Law Commissioner at the Law Commission said: “Online abuse can cause untold harm to those targeted and change is needed to ensure we are protecting victims from abuse such as cyberflashing and pile-on harassment. At the same time, our reforms would better protect freedom of expression by narrowing the reach of the criminal law so it only criminalises the most harmful behaviour.”
Minister for Digital and Culture Caroline Dinenage said: “We are putting new legal responsibilities on social media companies to protect the British public. But we have to be confident we can hold the individuals using these sites to threaten, abuse and spread hate accountable too. I thank the Law Commission for its detailed recommendations which we will carefully consider as we update our laws for the digital age, protecting freedom of speech while making sure what is unacceptable offline is unacceptable online.”
The laws that govern online abusive behaviour are not working as well as they should. The existing offences are ineffective at criminalising genuinely harmful behaviour and in some instances disproportionately interfere with freedom of expression.
Reliance on vague terms like “grossly offensive” and “indecent” sets the threshold for criminality too low and potentially criminalises some forms of free expression that ought to be protected. For example, consensual sexting between adults could be “indecent”, but is not worthy of criminalisation.
Other behaviours such as taking part in pile-on harassment, which can be genuinely harmful and distressing are not adequately criminalised. Additionally, the law does not effectively deal with behaviours such as cyberflashing and encouraging serious self-harm.
The result is that the law as it currently stands over-criminalises in some situations and under-criminalises in others. This is what the Commission’s recommendations aim to correct.