By Pyari Chopra
Technology has fundamentally changed the way we communicate with each other. However, as the Law Commission recognises, this unprecedented scale, frequency and content of communication has led to a far increased scope for harm. [1] Online abuse has become increasingly prevalent across the internet landscape and has only intensified in the context of the COVID-19 pandemic and its associated lockdowns. [2]
Despite this, criminal law in the UK has not kept up to pace with these changes and remains inadequate in providing protection for such victims. The Law Commission has noted that the offences commonly relied upon in the context of online abuse are meant to be broader and more general. Hence, elements of the offence rely on semantically vague and ambiguous words such as ‘grossly offensive’ and ‘indecent’. This has led to both under-criminalisation and over-criminalisation as the current law relies on vague definitions which are susceptible to subjective interpretation. [3]
To ensure that 1) communication that is genuinely harmful is sanctioned and 2) communication that lacks potential for harm is not criminalised, the Law Commission has focused on moving away from broader categories of wrongful content to offences that promote a context-specific analysis. [4]
Recommendations from the Law Commission
In summary, the Law Commission recommends the creation of:
1. A new communications offence based on likely psychological harm to replace the offences in s 1 of the MCA 1988 and s 2 of the MCA 1988. [5]
By focusing on the harm caused by the communication, the Law Commission adopts an approach that focuses on the harmful effects of communication rather than its contents, which they believe will not only better target the different forms of online abuse, but also protects freedom of expression and avoids over-criminalisation. [6] The Law Commission did not create specific offences for pile-on harassment or hate-crimes as the new offence would be able to capture such behaviour.
2. A new offence for sending a knowingly false communication. [7]
This replaces the existing offence criminalising such communication if it is sent for the purpose of causing “annoyance, inconvenience, or needless anxiety”. [8] The Law Commission sets the threshold higher by criminalising such behaviour only if it is intended to cause non-trivial psychological or physical harm to a likely audience, and it must be sent without reasonable excuse. [9]
3. A new specific offence for making hoax calls to emergency services. [10]
As a distinctly harmful form of communication, the Law Commission recommends that there should be a specific offence to address it. [11]
4. A new specific offence for making threatening communication. [12]
The new recommended offence was created as the general, harm-based offence may not reflect the defendant’s culpability. [13] A defendant is liable when he conveys a threat of serious harm, and intends or is reckless as to whether that threat causes fear to the object of the threat. [14]
5. A new specific offence to be added under the Sexual Offences Act 2003 to include a specific offence targeting the sending of images or video recordings of genitals. [15]
The Law Commission concluded that Cyberflashing should be classified as a sexual offence rather than a communication offence to ensure that additional protections for sexual offences, such as Sexual Harm Prevention Orders, would be available to victims for Cyberflashing. [16]
6. A new specific offence for encouraging or assisting serious self-harm. [17]
The Law Commission was careful in crafting this offence, so as to ensure that genuine cases would be covered by this offence but vulnerable people who shared “non-suicidal self-harm” content would not be caught by it. [18] Hence, the Law Commission recommends an offence with a high threshold of harm, and requires the offence to intend to encourage or assist that same level of harm. This offence will also require the consent of the DPP to prosecute. [19]
7. A new specific offence for the sending of flashing images to people with epilepsy with the intention of inducing seizures. [20]
The Law Commission concluded that the specific offence would be the most direct and appropriate way to curb such behaviour.
All in all, it remains to be seen whether Parliament will adopt such reforms. However, with the urgent need for a more cohesive and comprehensive legal framework for online abuse, it is likely that Parliament will at least consider these proposals seriously.
References:
[1] Law Commission, Modernising Communications Offences: A final report (Law Commission No 399, 2021), Para 1.3
[2] Ibid, Para 1.12
[3] Ibid, Paras 1.7; 2.3 - 2.5
[4] Ibid, Para 2.6
[5] Ibid, Paras 2.38 - 2.39
[6] Ibid, Paras 2.41 - 2.43
[7] Ibid, Para 3.1
[8] Communications Act 2003, s 127(3)
[9] Law Commission, Modernising Communications Offences: A final report (Law Commission No 399, 2021), Para 3.19
[10] Ibid, Para 3.94
[11] Ibid, Paras 3.92 - 3.93
[12] Ibid, Paras 3.134 - 3.135
[13] Ibid, Paras 3.127, 3.130
[14] Ibid, Para 3.135
[15] Ibid, Para 6.133
[16] Ibid, Paras 1.41, 6.128
[17] Ibid, Para 7.97
[18] Ibid, Para 7.43
[19] Ibid, Paras 7.70, 7.71, 7.82, 7.96
[20] Ibid, Para 3.142
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