Abusive and Offensive Online Communications: Law Reform Call

The Law Commission has published its Scoping Report assessing the state of the law concerning abusive and offensive online communications

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.

In 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 said:

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 confusion.
  • 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 distress
  • 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.

Published: 2018-11-01T00:00:00


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