Law Commission gets set to tackle online abuse

Almost every single business has some sort of social media presence and Covid-19 has shown the importance of social media on an unprecedented scale. As an example, during lockdown, many took up virtual riding with apps such as Zwift, where they cycle on a static bike trainer at home but ‘with’ people from all over the world, and perhaps messaging each other as they ride. However, there can be a darker side to this sort of activity, with tales of women being harassed on rides. It is also well known that people can be targeted on Twitter. On the other hand, some activities are “overcriminalised”, such as the incident some years ago when a Twitter user tweeted that they were going to blow up Robin Hood airport and was prosecuted under the Communications Act 2003. That case has been heavily criticised over the years.

The Law Commission has published proposals with the aim of better protecting victims from harmful online behaviour including abusive messages or emails, cyberflashing and pile-on harassment. It They also proposes reforms to tackle the malicious sharing of information known to be false.

The proposals aim to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse. This is balanced with the need to better protect the right to freedom of expression.

The proposals include:

• Reforms to the communications offences (the Malicious Communications Act 1988 and the Communications Act 2003, to criminalise behaviour where a communication would likely cause harm. This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim). This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the Communications Act 2003.

• The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.

• Cyberflashing – the unsolicited sending of images or video recordings of genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.

• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse.

The Law Commission’s paper deals with the criminal offences of individuals, but what of the role of the social media platforms in taking down offensive content? The UK government’s White Paper on online harms proposes a liability regime in which platforms will be answerable to a regulator for content hosted on their sites and select committee reports have called for the government to progress these plans as soon as practicable. To the extent that an organisation could be caught by the new offences, the Law Commission suggests that news outlets and cinema should be exempt, although someone posting an abusive comment on a new story would not be.

The UK government will be considering the Law Commission’s proposals and then decide on further action. Watch this space.