The push for reform around online communication offences

In the UK, over 70% of UK adults and 95% of those aged 16‑24‑year olds have a social media profile. The world has never been more connected. That being said, part of this development in communication technology means that some have found new avenues to torment and “troll” others.

Despite a 19% rise in reported social media crimes, very few recorded communication offences result in a criminal charge. Some argue that this is because the current legislation regulating these offences is out of date and no longer fit for purpose.

Subsequently, many charities, think tanks, and the Law Commission, have called for reforms to update, simplify and in some cases toughen the laws around online communication offences.

However, as with any debate around internet regulation, the right to freedom of expression arises as a salient issue. Consequently, some civil liberties organisations like Big Brother Watch, have argued that the tightening of regulations around online activity is potentially a dangerous step.

Current laws regulating online communication offences

The primary pieces of legislation which have regulated communication offences over the years are the Malicious Communications Act (MCA) 1988 , and the Communications Act (CA) 2003. 

Under Section 1 of the MCA 1988, sending communication to another individual, with the intent  of causing “distress or anxiety” is a criminal offence. Meanwhile, under Section 127(1) of the CA 2003, there is a crossover, whereby sending a message which is “grossly offensive or of an indecent, obscene or menacing character” through a “public electronic communications network,” is categorised as a criminal offence.

Further to this, Section 127(2) of the CA 2003, criminalises the act of sending a message which is false and known to be false by the sender of the message, and sent with the intent of causing “annoyance, inconvenience, or needless anxiety” to another person or people.

On top of these two pieces of legislation, back in 2015, the Criminal Justice and Courts Bill received royal assent, and with it brought significant changes to sentencing around online offences. This included the introduction of a targeted law against ‘revenge porn,’ which now punishable by up to two years in prison. A maximum two year sentence for trolls who send abusive messages or material was also introduced.

Campaign for change

A number of charities and media figures have recently spoken out in favour of bringing in tougher rules to regulate communication offences, and many argue that not enough is being done to hold trolls accountable.

Bobby Norris, a television personality, recently gave evidence at the Petitions Committee regarding the online homophobic abuse that he had been subjected to. This was part of the committee’s inquiry into tackling online abuse. Here, Mr Norris also discussed his petition, “Hold online trolls accountable for their online abuse via their IP address,” which had been signed by over 133,000 people.

Rachel Riley, a television presenter and mathematician, also voiced support for harsher treatment of “trolls” through her backing of MP Lucy Powell’s Online Forums Bill. This piece of legislation would have created legal accountability for secret Facebook forums and their administrators and moderators.

Elsewhere, the Epilepsy Society has also campaigned for the introduction of more targeted legislation around trolling, and argues that the current laws are no longer fit for purpose. The charity outlined that many of its members, as well as a young boy named Zach Eagling, aged nine, have been the victims of targeted attacks. These attacks see internet trolls send flashing images to trigger an epileptic seizure in those with the condition.. The charity “strongly believes” that the current legislation does not effectively deal with this specific offence.

However, there have been developments around proposed legislation aiming to regulate these kinds of offences. In April 2019, the Online Harms White Paper was produced, which outlined the government’s proposals to tackle a wide range of online offences, including but not limited to:

  • Revenge porn
  • Harassment
  • Trolling
  • Hate crime
  • The promotion of self-harm
  • Disinformation

The white paper recommended a new statutory duty of care on part of companies to “take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services”. It also proposed that this would be overseen by an independent regulator, which would impose a code of practice that platforms would have to comply with.

Meanwhile, the Law Commission has now published it’s consultation paper on the criminal law provision applying to individual acts, rather than regulation of platforms. It also forms part of the work on Online Harms by the Department for Digital, Culture, Media and Sport (“DCMS”) and the Home Office.

The Law Commission’s consultation paper

On 11 September, the Law Commission’s consultation paper on harmful online communications was launched. Ultimately, the paper assessed how and why Section 1 of the MAC 1988, and Section 127(1) of the CA 2003, should be reformed.

The consultation paper outlined that while both pieces of legislation cover a broad range of offences, the threshold for criminality is often too low. It states that this leads to some online harms, such as cyberflashing and pile-on harassment being left without sufficient criminal sanction. Moreover, the paper highlighted that due to the rapid evolution of technological advancements in online communication, criminal law has failed to keep up.

In response to the legislative gaps that have emerged over the years, the paper provisionally proposed to replace the offences in Section 1 of the MCA 1998, and Section 127(1) of the CA 2003. The new offence would require that a defendant sends a communication with the likely intent to cause harm to a likely audience.

Here, harm is categorised as “emotional or psychological harm,” which amounts to at least “serious emotional distress”. However, the offence would not require proof that anyone was actually harmed. That being said, the court would be required to consider the context in which the communication was sent and the characteristics of the “likely audience”. These characteristics could include race, religion, sexuality, or disability.

Overall, the consultation paper recommended that a holistic approach would be required to tackle online abuse. Moreover, it outlined that in addition to regulatory reform and criminal law, education and cultural change would also play a vital role.

Speaking out in support of these proposed reforms, Clare Pelham, Chief Executive at the Epilepsy Society, said: “The Law Commission’s proposals will fast forward the English justice system into the 21st century and meet these criminals head on. Social media has developed at a pace that far outstrips the law, providing a safe space for internet trolls to brazenly target disabled people and cause physical harm”.

The consultation period will run until late this year and end on 18 December 2020.

Protective or Draconian?

At the heart of this issue, lies the balance between protection from harm and freedom of expression. The Law Commission recognised this issue in its consultation paper and identified the importance of considering any potential violation of Article 10 of the ECHR. 

Subsequently, the paper outlined that any “interference” with Article 10 had to be “adequately prescribed by law” and a “proportionate pursuit of a legitimate aim”.

In addition to this, the Law Commission also highlighted that the current legislation regulating online harms, overlaps and is both broad and ambiguous in nature. As a result, it says this puts the legislation at risk of constituting a disproportionate interference to Article 10.

Likewise, Big Brother Watch has underlined the importance of the government “[getting] it right” when it comes to internet regulation and preserving Article 10. So far, it has dubbed the government’s approach to this kind of legislative reform, “ill-defined” and “overbearing” and argued that it could see “state-sanctioned monitoring” and widespread censorship of lawful expression online. The campaign organisation has also emphasised the importance of being “mindful” about how less democratic governments could use the policy proposals.

Ultimately, the online-offline equivalence must be preserved, the public protected, and any attempts to infringe on human rights thwarted. Yet, it seems new regulations are geared more towards an online-specific regime, and the potential for misuse of powers is great.

Article Created By Madaline Dunn