Abusive and Offensive Online Communications: Law Reform Call

November 1, 2018

Reforms to the law are required to protect victims from
online and social media-based abuse, according to a new Report by the Law
Commission for England and Wales.

its Scoping Report
 assessing the state of the law in this area,
published on 1 November 2018, the Law Commission raises concerns about the lack
of coherence in the current criminal law and the problems this causes for
victims, police and prosecutors. It is also critical of the current law’s
ability to protect people harmed by a range of behaviour online including:

  • receiving abusive and offensive communications
  • ‘pile on’ harassment, often on social media
  • misuse of private images and information.

The Commission is calling for:

  1. reform and consolidation of existing criminal laws dealing
    with offensive and abusive communications online
  2. a specific review considering how the law can more
    effectively protect victims who are subject to a campaign of online harassment
  3. a review of how effectively the criminal law protects
    personal privacy online.

Professor David Ormerod QC, Law Commissioner for Criminal
Law, who is due to speak at an SCL meeting on 17 January, said:

‘As the internet and social media have become an everyday
part of our lives, online abuse has become commonplace for many. Our report
highlights the ways in which the criminal law is not keeping pace with these
technological changes. We identify the areas of the criminal law most in need
of reform in order to protect victims and hold perpetrators to account.’

Responding to the Report, Digital Minister Margot James

Behaviour that is illegal offline should be treated the
same when it’s committed online. We’ve listened to victims of online abuse as
it’s important that the right legal protections are in place to meet the
challenges of new technology. There is much more to be doing and we’ll be considering the
Law Commission’s findings as we develop a White Paper setting out new laws to
make the UK a safer place to be online.’

The Law Commission was asked to assess whether the current
criminal law achieved parity of treatment between online and offline offending.
For the most part, it has concluded that abusive online communications are, at
least theoretically, criminalised to the same or even a greater degree than
equivalent offline offending. However, the Commission suggests that there is
considerable scope for reform:

  • Many of the applicable offences do not adequately reflect
    the nature of some of the offending behaviour in the online environment, and
    the degree of harm it can cause.
  • Practical and cultural barriers mean that not all harmful
    online conduct is pursued in terms of criminal law enforcement to the same
    extent that it might be in an offline context.
  • More generally, criminal offences could be improved so they
    are clearer and more effectively target serious harm and criminality.
  • The large number of overlapping offences can cause
  • Ambiguous terms such as ‘gross offensiveness’, ‘obscenity’
    and ‘indecency’ don’t provide the required clarity for prosecutors.

Reforms would help to reduce and tackle not only online
abuse and offence generally but also:

  • ‘pile on’ harassment, where online harassment is coordinated
    against an individual – the Report notes that ‘in practice, it appears that the
    criminal law is having little effect in punishing and deterring certain forms
    of group abuse’
  • the most serious privacy breaches – for example, the Report
    highlights concerns about the laws around sharing of private sexual images and
    questions whether the law is adequate to deal with victims who find their
    personal information widely spread online.

Impact on victims

The Law Commission heard from those affected by this kind of
criminal behaviour including victims’ groups, the charities that support them,
MPs and other high-profile victims.

The Report analyses the scale of online offending and
suggests that studies show that the groups in society most likely to be
affected by abusive communications online include women, young people,
ethnic minorities and LGBTQ individuals. For example, the Report finds
that gender-based online hate crime, particularly misogynistic abuse, is
particularly prevalent and damaging.

It also sets out the factors which make online abuse so
common – including the disinhibition of communicating with an unseen victim and
the ease with which victims can be identified.

The Report highlights harms caused to the victims of online
abuse which include:

  • psychological effects, such as depression and anxiety
  • emotional harms, such as feelings of shame, loneliness and
  • physiological harms, including suicide and self-harm in the
    most extreme cases
  • exclusion from public online space and corresponding
    feelings of isolation
  • economic harms
  • wider societal harms.

It concludes that abuse by groups of offenders online, and
the use of visual images to perpetrate abuse are two of the ways in which
online abuse can be aggravated.

Next steps

The Department for Digital, Culture, Media and Sport (DCMS)
will now analyse the Report and decide on the next steps including what further
work the Law Commission can do to produce recommendations for how the criminal
law can be improved to tackle online abuse.