Trolling Law Reform?

February 8, 2018

The government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.

With research showing that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying last year, the independent body will provide a robust review of the current laws and set out how they apply to online communications.

This independent review of the law is expected to be published within six months of when work starts in April. If deficiencies in the current law are identified, the Commission has agreed to further work looking at potential options for reform.

Law Commissioner Professor David Ormerod QC said:

‘There are laws in place to stop abuse but we’ve moved on from the age of green ink and poison pens. The digital world throws up new questions and we need to make sure that the law is robust and flexible enough to answer them. If we are to be safe, both on and off line, the criminal law must offer appropriate protection in both spaces. By studying the law and identifying any problems we can give government the full picture as it works to make the UK the safest place to be online.’

The Commission will analyse:

  • How the Malicious Communications Act 1988 deals with offensive online communications
  • How the Communications Act 2003 deals with online communications
  • What ‘grossly offensive’ means and whether that poses difficulties in legal certainty
  • Whether the law means you need to prove fault or prove intention to prosecute offensive online communications
  • The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of ‘sender’
  • How other parts of the criminal law overlap with online communications laws

The Government already has active programmes of work in some areas of online communications offences. As a result the Law Commission will not consider:

  • terrorist offences committed online
  • child sexual exploitation
  • platform liability

Following this analysis of the law, the Commission is expected to undertake a further six-month project before making recommendations to government, informed by public consultation.

Laurence Eastham writes:

While this whole exercise has a strong whiff of Something Must Be Done about it, a Law Commission review is a comforting way forward when one considers the alternative: ill-considered, tabloid-inspired government legislation. And one cannot discount the possibility that a change in the law is required. A number of the points raised in the Law Commission press release are genuine matters of concern. I will be fascinated to see what they make of the meaning of ‘sender’. I am less convinced that the Law Commission is well placed to determine the meaning of ‘grossly offensive’. 

The really frightening item identified for review is ‘Whether the law means you need to prove fault or prove intention to prosecute offensive online communications’. You may think that the answer is ‘of course it does – you’re the Law Commission and should know better’. But listing this item suggests the question is up for debate. If we are seriously contemplating a change that enables prosecution for offence caused without fault or intent then free speech is in danger and needs defending robustly.