‘Mobs, Trolls and Hate: The Law Commission Reports’? Article by Caroline Addy on The Law Commission Scoping Report on Abusive and Offensive Online Communications

The Law Commission has been reviewing the current criminal law on abusive and offensive communications[1] and its application to such behaviour when committed online. It has now published its report[2].

The scoping report notes the exponential growth of internet communication, the permanence of online communications, and the fact that women are disproportionately targeted and affected by online abuse. Furthermore, it notes that in a significant proportion of cases the perpetrator was not identifiable.

The seven recommendations in the report are as follows:

  1. The communications offences in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003 should be reformed to ensure that they are clear and understandable and provide certainty to online users and law enforcement agencies.
  1. As part of the reform of communications offences, the meaning of “obscene” and “indecent” should be reviewed, and further consideration should be given to the meaning of the terms “publish”, “display”, “possession” and “public place” under the applicable offences.
  1. In addition to a reform of the communications offences, there should be a review to consider whether coordinated harassment by groups of people online could be more effectively addressed by the criminal law.
  1. The Law Commission’s reviews of hate crime and communications offences should include consideration of:
  • the disproportionate targeting of women online, including through explicitly misogynistic language and sentiment; and
  • the effectiveness of the existing offences in labelling and punishing hate speech.
  1. The criminal law’s response to online privacy abuses should be reviewed, considering in particular:
  • whether the harm facilitated by emerging technology such as “deepfake” pornography is adequately dealt with by the criminal law; and
  • whether there are adequate remedies to deal with the most serious privacy breaches.
  1. As part of the reform of communications offences the threshold at which malicious and “false” communications are criminalised should be reviewed.
  1. The glorification of violent crime online and the encouragement of self-harm online are issues which should be considered in the context of the review of communications offences.

The discussion of current offences and the policing of online conduct in this report is a clear and valuable contribution to a vital public debate. It is a helpful review of the law as it stands as well as a thoughtful call for research and reform.

Some of the important findings of the Scoping Report are that:

  • The requirement in s.1 of the MCA 1988 for the offending message or item to be ‘sent to another person’ limits the scope of the offence considerably;
  • A person will only commit an offence under section 1(1) of the MCA 1988 if their purpose, or one of their purposes, in sending the article, letter or electronic communication is to cause distress or anxiety. If a consequence is not sought, even though it is foreseen as a virtually certain consequence, it is not clear that the mens rea of the offence is satisfied, given the purposive nature of the mens rea in section 1 of the Act;
  • The MCA 1988 criminalises the sending of ‘grossly offensive’ communications or articles, a term which is increasingly challenging to apply: it lacks explicit or agreed limitations; the ambit of the statutory limitation of ‘grossly’ offensive is unclear (‘From the outset, there has been confusion and criticism over where the threshold is crossed and when, or why, matter is considered grossly offensive, rather than simply vulgar abuse’); it has been said to be wrong in principle to ban something just because some people, or even most people, are offended by it;
  • Those who use the internet to communicate need clear and certain law, but case law has not provided it. Controversial prosecutions continue to arise in these cases because the underlying proscribed conduct is very broadly interpreted and the concepts are malleable. Without further clarification of the law there is a risk of overcriminalisation of online communication;
  • Any further review of the communications offences as they apply online should examine whether the offences relating to the sending of grossly offensive communications remain appropriate as a basis for criminal liability in England and Wales;
  • 127 of the Communications Act 2003 closely reproduced the wording of older legislation relating to the Post Office and telecommunications. As a result, it created a set of offences ‘that are remarkably broad…the result is a criminalisation of some forms of communication that many may find surprising’ and that would not be an offence in the offline world, even with the requisite intent;
  • A person can, strictly speaking, commit the offence in section 127(1) even if they only intend to store communications for themselves using online storage facilities – the offence may still be complete if its fault element is present. If the same content were printed or typed, and stored in a drawer in a person’s house, no offence would be committed without more. This raises questions about the scope of the offence, and its compatibility with the rights to privacy and freedom of expression;
  • Case law has established the fault element of the various s.127 offences. The undemanding nature of these criteria could have acute implications for freedom of expression, depending on how these offences are prosecuted;
  • It is unclear why communications made in the course of providing programme services (within the meaning of the Broadcasting Act 1990 – a complex and troublingly broad definition) are excluded from s. 127, so that members of the public may face criminal prosecution for offensive online publications but broadcasters will not. The distinction between the two groups is also now less meaningful, since anyone can now communicate text, audio and video communications to a mass audience;
  • The overlap between s.1 MCA 1988 and s.127 CA 2003 is confusing and consideration should be given to amalgamating the two into one coherent set of offences. The time is also apt for a reconsideration of the thresholds required for abusive and offensive communications to constitute criminal offences;
  • Many aspects of the Obscene Publications Act 1959 have not been adapted to address the realities of the modern technological environment, and interpretative difficulties arise as a result;
  • The OPA requires consideration of the effect of the material on ‘likely’ readers, an impossible group to define online unless access to the material is restricted, e.g. by a paywall;
  • The courts have applied conflicting definitions of an ‘article’ in relation to s.2 OPA (publication or possession with a view to publication, of an obscene article for gain) from prosecuting each separate comment in an internet relay chat to prosecuting an entire webpage. Both approaches could create lacuna or inconsistency when applied to online publications. The former has the effect of criminalising obscene private online conversations to one other person, arguably something to which the Act was not intended to apply;
  • Case law has failed to delineate precisely where the boundary lies between “indecency” and “obscenity” (under the MCA 1988 and the CA 2003, as well as the Indecent Displays (Control) Act 1981[3]), including what the terms actually mean, beyond generalisations. Given the vagueness of the term “indecent”, and the absence of definition – or even guidance – in case law, the term could potentially cover photographs of naked adults, certainly if in sexualised poses. Given there is no consent element to the offence, on another interpretation, a consensual naked photograph sent between two adults could be criminal;
  • Many of the currently available criminal offences are of very broad application, and: ‘It is clear that the offences overlap in the same set of factual circumstances in particular in an online context. However, liability online can also depend on the platform chosen by the sender, which may not be an appropriate way to determine criminal responsibility for a crime of possession.’
  • The Protection from Harassment Act 1997 is not providing an adequate remedy to victims of harassment by multiple perpetrators, whether or not the offenders are acting in concert. The mechanism for dealing with collective harassment in the PHA appears to be poorly understood and overly complex. Accordingly, the Law Commission considers that ‘further detailed enquiry is merited into whether specific offences of inciting, coordinating or participating in group harassment might be considered, so that they can be used to describe more effectively and punish this damaging form of abuse’;
  • The volume of hateful language used online is enormous. However, there is inconsistency as to how affected groups are treated across the criminal law, with certain hate crimes existing in respect of some characteristics, but not others. The question of whether the law should more explicitly address hateful communications, and label and criminalise them as such, is worthy of further consideration;
  • Despite the human rights protections and the extensive regulatory regime that exists in respect of privacy, there has been a reluctance to impose serious criminal sanctions on individuals for privacy-related offending, other than in sexual contexts;
  • The government introduced a specific offence in s.33 of the Criminal Justice and Courts Act 2015 governing the disclosure of ‘a private sexual photograph or film’, but the provision has not resulted in many prosecutions compared to the number of apparent reports. Research has suggested that the lack of anonymity for complainants is a major disincentive to reporting the offence;
  • The CJCA offence is also rather limited, applying only to acts ‘of a kind not ordinarily done in public’, which can exclude many kinds of image whose disclosure would be distressing and with a definition of ‘sexual’ that could exclude much, e.g. topless photographs of women. Disclosures to the person depicted are not covered, and manipulated images, such as ‘deepfakes’, are specifically excluded from the section (though other statutory provisions will apply). Finally, the provision does not define what consent is for the purposes of the section, nor from whom consent must be obtained. The law as drafted is too vague, the Commission concludes, and requires clarification;
  • Threats to disclose private sexual imagery are not an offence under the CJCA and research suggests such threats do not generally result in charges, suggesting the law is deficient in this area;
  • The online world is blurring the boundaries between public and private space, which can raise challenging questions in the prosecution of privacy offences.

The government has already announced its intention to conduct Phase 2 of this project.

Caroline Addy

[1]  Excluding online terrorist offences, fraud and child sexual exploitation. The behaviours and offences considered in the report are: gross offensiveness, obscenity and indecency, threatening communications, harassment and stalking, hate crime, ‘privacy offending’ and disclosure without consent, false communications and related inchoate offences.

[2]  The report is concerned only with the criminal liability of individuals. The Commission has not considered how or whether to reform the law, criminal or civil, concerning the liability of internet platforms.

[3]  The IDCA 1981 applies to displays in a ‘public place’. The courts are yet to determine whether the online environment is a public place.