The Law Commission has recommended several legislative changes to protect against online abuse. Various aspects of the law could be updated, particularly in relation to cyber-flashing, encouraging self-harm, and threatening and false communications.
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Why are legal updates needed?
The laws in England and Wales have struggled to keep pace with the rapidly evolving nature of online communications. Online abuse is not uncommon, yet the legislation in this area has been described as “overlapping” and “ambiguous”. The Law Commission – which reviews the law and recommends reforms – says the current offences do not provide consistent protection from harm. In some cases, the law may even interfere with freedom of expression.
The Law Commission has published a set of recommendations. Together, these aim to address the harms that arise from online abuse, while at the same time balancing the right to freedom of expression. The changes are intended to be future-proof and work with new technology. The Law Commission’s recommendations relate to four main areas:
- Harm-based offence
- Encouraging or assisting serious self-harm
- Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The Law Commission has recommended implementing a new ‘harm-based’ offence. Rather than considering whether the content was wrongful (as is currently the case), the courts would question whether harm was likely. Otherwise, there is a situation where grossly offensive communications are penalised, even if they lack the potential for harm. Or, seemingly benign content can cause a great deal of harm – for example, if flashing images are deliberately sent to an epilepsy sufferer. Under the recommendations, communications that are genuinely harmful would not escape criminal sanction.
It is worth noting that the issue of deliberately sending flashing images to an epilepsy sufferer could be covered under a separate, specific offence.
Encouraging or assisting serious self-harm
There are instances of vulnerable people being targeted online and encouraged to self-harm. In a bid to police this, the Law Commission has recommended an offence in which the defendant intends to encourage or assist a high level of harm.
Cyber-flashing is the unsolicited sending of sexual images using digital technology. It can be considered a form of sexual harassment. The Law Commission advises amending the Sexual Offences Act 2003 to include a specific offence targeting the sending of images or video recordings of genitals.
Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The current offence of knowingly sending a false communication has a low threshold of “causing annoyance, inconvenience or needless anxiety”. The recommendation is to raise the threshold so that the defendant would be liable if:
- He sends or posts a communication that he knows to be false; and
- In doing so he intends to cause non-trivial psychological or physical harm to a likely audience; and
- In sending or posting he does so without reasonable excuse.
As for hoax calls to the emergency services, the Law Commission suggests that this should be made into a specific offence.
What happens next?
The Law Commission has published their recommendations in a report. This is now being reviewed by the government. It remains to be seen which laws will be updated, and how.
If you have been accused of online abuse, contact our criminal defence solicitors for free legal advice.
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