Reform of the communications offences

The government published its Online Harms White Paper in April 2019, which set out a range of proposals to reduce illegal and harmful online activity. An initial consultation response was published in February 2020, with a full response expected before the end of the year and potential legislation coming in early 2021.

Meanwhile, the Law Commission is running a related consultation on reform to the existing communication offences legislation, with a view to updating criminal law to better “protect victims from harmful online behaviour including abusive messages, cyber-flashing, pile-on harassment, and the malicious sharing of information known to be false.” The consultation will run until 18 December 2020.

Cyberflashing is the unsolicited sending of sexual images using digital technology. Pile-on harassment is when a number of different individuals send harassing communications to a victim (eg mass Twitter trolling).

Several reforms are proposed in the consultation paper, notably:

  • Creation of new offence. This would replace the existing communications offences (ie the Malicious Communications Act 1988 and the Communications Act 2003) to criminalise behaviour where a communication would likely cause harm. The new offence would cover emails, social media and direct messaging apps such as WhatsApp. It would also apply to communications over private networks (eg intranets) which are not currently covered by the Communications Act 2003. Furthermore, the new offence would introduce the requirement of proof of likely emotional or psychological harm.
  • Cyber-flashing. It is proposed that this should be included as a sexual offence under section 66 of the Sexual Offences Act 2003.
  • False communication. The Law Commission believes that the existing threshold for committing the crime of false communication (under section 127(2) of the Communications Act 2003) is currently too high. It proposes lowering the threshold so that someone is only guilty of an offence if they: (i) send or post a communication that they know to be false (ii) they intend to cause non‑trivial emotional, psychological, or physical harm and (iii) they do not have a reasonable excuse.

Image cc by Pedro Figueiredo on Flickr via Prodavinci