Harmful Online Communications: The Criminal Offences A Consultation paper Consultation Paper 248 Law Commission Consultation Paper 248 Harmful Online Communications: The Criminal Offences A Consultation Paper 11 September 2020 I © Crown copyright 2020 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at https://www.lawcom.gov.uk/project/reform-of-the- communications-offences/ II The Law Commission – How we consult About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Green, Chair, Professor Sarah Green, Professor Nicholas Hopkins, Professor Penney Lewis, and Nicholas Paines QC. The Chief Executive is Phillip Golding. Topic of this consultation: We are consulting on reform of the communications offences (Malicious Communications Act 1988 and Communications Act 2003) in light of developments in online communication. We are also consulting on specific behaviours such as cyberflashing, pile-on harassment, and the glorification of both self-harm and violent crime. Geographical scope: This consultation applies to the law of England and Wales. Duration of the consultation: We invite responses from 11 September 2020 to 18 December 2020. Responses to the consultation may be sent: By email to [email protected] OR By post to Online Communications Team, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. If you send your comments by post, it would be helpful if, whenever possible, you could also send them by email. Availability of materials: The consultation paper is available on our website at https://www.lawcom.gov.uk/project/reform-of-the-communications-offences/ We are committed to providing accessible publications. If you require this consultation paper to be made available in a different format please email online- [email protected] or call 020 3334 0200. After the consultation: We will analyse the responses to the consultation, which will inform our final recommendations for reform to Government, which we will publish in a report. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission: We aim to be transparent in our decision- making, and to explain the basis on which we have reached conclusions. We may publish or disclose information you provide in response to Law Commission papers, including personal iii information. For example, we may publish an extract of your response in Law Commission publications, or publish the response itself. We may also share responses with Government. Additionally, we may be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. We will process your personal data in accordance with the General Data Protection Regulation. Consultation responses are most effective where we are able to report which consultees responded to us, and what they said. 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Any queries about the contents of this Privacy Notice can be directed to: [email protected]. iv Contents Page CHAPTER 1: INTRODUCTION 1 The problem 1 Freedom of expression 2 This paper – background 2 The terms of reference 3 Topics not in scope 4 This Paper – proposals and scope 4 “Online”: technological neutrality and the scope of our proposed reforms 5 Harm and the communications offences 5 Structure of this Paper 6 Acknowledgements 6 The project team 7 CHAPTER 2: COMMUNICATION, HUMAN RIGHTS, AND THE CRIMINAL LAW 8 The importance of freedom of expression 9 Harmful forms of expression 11 Article 10 ECHR 12 Article 17 and unprotected speech 13 What does compliance with Article 10 require? 14 Was there an interference? 15 Was the interference prescribed by law? 16 Did the interference pursue a legitimate aim? 19 Was the interference necessary in a democratic society? 20 Article 8 ECHR 22 When is Article 8 engaged? 22 Negative obligations under Article 8 26 Positive obligations under Article 8 28 Balancing Article 8 and Article 10 29 Conclusion 31 CHAPTER 3: THE EXISTING LAW 32 Introduction 32 Specific offences: obscene and indecent communications 33 Outraging public decency 33 Indecent Displays (Control) Act 1981 34 v Obscene Publications Act 1959 35 Harassment and stalking offences 37 Protection from Harassment Act 1997 37 Strengths of the stalking and harassment offences 40 Problems with the stalking and harassment offences 43 Public order offences 46 Public Order Act 1986 46 Section 4 of the Public Order Act 1986: fear or provocation of violence 47 Section 4A of the Public Order Act 1986: intentional harassment, alarm or distress 49 Section 5 of the Public Order Act 1986: harassment, alarm or distress 50 General communications offences 51 Malicious Communications Act 1988 51 Communications Act 2003 52 Strengths of the general communications offences 53 Problems with the general communications offences 54 Vagueness and uncertainty 54 Over-criminalisation 57 Under-criminalisation 60 Unsatisfactory targeting and labelling 64 Overlapping offences 66 Conclusion 66 CHAPTER 4: CRIMINALISING ONLINE ABUSE: BEHAVIOUR AND HARMS 67 Introduction 67 Abusive online communications 68 Defining online abuse 71 Types of online abuse within the scope of this Consultation Paper 74 Online abuse as experienced by different groups 76 Women 77 LGBT+ people 78 Disabled people 78 Religious groups 80 BAME people 81 Intersectionality 82 Children and young people 82 Categories of harm arising from abusive online communications 83 Emotional and psychological harms 83 Physiological harms 88 Exclusion from public online spaces and other social and interpersonal harms 89 Economic harms 90 Wider societal harms 90 Modalities of harm 91 vi Emotional and psychological harm as the basis of a new offence 92 Conclusion 96 CHAPTER 5: THE PROPOSED NEW COMMUNICATIONS OFFENCE 97 Introduction 97 Our approach to reform 97 The role of the criminal law 97 Technological neutrality 99 A harm-based model 105 The proposed offence summarised 106 Consultation Question 1. 107 The New Zealand Model 108 The conduct element 110 “Sent or posted a communication” 110 Consultation Question 2. 111 “A likely audience” 111 Consultation Question 3. 115 “Likely” harm, not actual harm 115 Consultation Question 4. 116 Categories of harm: emotional or psychological harm 116 The threshold of harm: “at least serious emotional distress” 117 Consultation Question 5. 122 Requirement to consider “the context in which the communication was sent or posted, including the characteristics of a likely audience” 122 Consultation Question 6. 125 Particular sensitivities of a likely audience 125 Consultation Question 7. 126 The mental and fault elements 126 “Intended or was aware of a risk of harm” 126 Consultation Question 8. 128 Consultation Question 9. 129 Consultation Question 10. 130 “Without reasonable excuse” 130 Consultation Question 11. 135 “Was or was meant as a contribution to a matter of public interest” 136 Consultation Question 12. 138 Consultation Question 13. 138 Private communications 138 Consultation Question 14. 141 Threats 141 Consultation Question 15. 142 Jurisdiction 142 Consultation Question 16. 142 vii CHAPTER 6: SPECIFIC FORMS OF ONLINE ABUSE AND COMPLEMENTARY LAW REFORMS 143 Introduction 143 The proposed harm-based offence 143 Section 127(2) of the communications Act 2003 144 The offences under section 127(2) 144 Proposed reform of section 127(2) 144 Persistent use 145 Consultation Question 17. 146 Knowingly false communications 146 False communications: the proposed new offence 147 Consultation Question 18. 149 The conduct element 149 Consultation Question 19. 150 The mental element: 150 Consultation Question 20. 154 Consultation Question 21. 155 Group harassment 155 Group harassment online: behaviour and harms 155 Is group harassment adequately addressed? 156 Is there justification for a specific offence to address group harassment? 158 Consultation Question 22. 161 Consultation Question 23. 162 Cyber-flashing 162 Cyber-flashing: behaviour and harms 163 Is cyber-flashing adequately addressed by the Sexual Offences Act? 164 Is cyber-flashing adequately addressed by our proposed harm-based offence? 164 Benefits of making cyber-flashing a sexual offence 166 Can this be achieved by amending section 66 SOA 2003 (exposure)? 166 Consultation Question 24. 167 Scope for a new offence 167 Consultation Question 25.