On July 20, 2021, the Law Commission for England and Wales issued a final report on its review of the criminal law governing “harmful, threatening, and false communications” and encouragement of and assistance with “serious self-harm … and cyberflashing.” The report was commissioned by the Department for Digital, Culture, Media & Sport and forms part of the government’s “Online Harms” strategy. This report served to reinforce what the Law Commission had determined in previous reports — namely, that the current criminal offenses in England do not effectively address the harm that can occur as a result of advances in online technologies and new modes of communication — and made recommendations to reform the law.
Communications offenses are primarily contained in section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003. In its report, the Law Commission expressed concern that the current offenses are overlapping, ambiguous, and too broad and vague, and that they may potentially interfere with the right to freedom of expression. This right, which is provided for by article 10 of the European Convention on Human Rights and incorporated into the domestic law of the United Kingdom by the Human Rights Act, stipulates that any interference in the right to freedom of expression must be proportionate and adequately prescribed for by law.
The report includes 16 recommendations to modernize communications offenses, with the intention of future-proofing them. The recommendations aim to avoid interfering with the right to freedom of expression by removing the current content-based approach to certain communications offenses — which requires communications to be grossly offensive or indecent for an offense to be committed — and replace this with a harm-based-offenses approach that “targets communications likely to cause serious distress.”
The most significant new offense proposed by the Law Commission is a harm-based communications offense with the following elements:
(1) The defendant sent or posted a communication that is likely to cause harm to a likely audience;
(2) in sending or posting the communication, the defendant intends to cause harm to a likely audience; and
(3) the defendant sent or posted the communication without reasonable excuse.
Harm means psychological harm that amounts, at a minimum, to serious distress. Due to concerns that the scope of the offense would be limited, evidence of actual harm does not need to be provided. Whether the communication is likely to cause harm must be considered in the context in which the communication was sent and the characteristics of those who are likely to encounter it. The Law Commission proposed that the term “likely” be defined as “a real or substantial risk.” The proposed penalty for this offense is up to two years’ imprisonment on conviction on indictment, with the harm that was caused being taken into account during sentencing.
To help ensure the offense does not become redundant with the development of new technologies, the proposed offense is not constrained to purely electronic communications — it encompasses any form of communication, such as electronic communications, letters, or sending items to a person.
In addition to creating the new, harm-based communications offense, the Law Commission recommended an amendment to section 127(2) of the Communications Act 2003, which provides for the offense of knowingly sending a false communication for the purpose of causing annoyance, inconvenience, or needless anxiety to another person. The Law Commission stated it believes that the current threshold is too low “to justify the imposition of a criminal sanction” and recommended an amendment to include the requirement that defendants intend to cause psychological or physical harm that is not trivial when sending or posting, without a reasonable excuse, communications that they know to be false. The Law Commission specifically noted that misinformation and “fake news” will fall outside the scope of this offense.
Among the recommendations made by the Law Commission are the creation of other offenses, including the following:
- Sending or posting a communication that conveys a threat of serious harm.
- Encouraging or assisting with serious self-harm. This offense requires that a high degree of harm be inflicted or encouraged, and prosecution of such offenses requires the consent of the director of public prosecutions so that the most serious examples of self-harm will be targeted.
- Sending flashing images to people with epilepsy to induce a seizure.
- Placing hoax calls to the emergency services.
The Law Commission also recommended amending section 66 of the Sexual Offences Act 2003 to include the offense of “cyberflashing” — sending images or video recordings of genitals with the intent of causing the victim alarm, distress, or humiliation, or being reckless as to whether this will occur.
The Law Commission considered an offense relating to “pile-on harassment,” in which different people send harassing messages to a single individual that results in a cumulative harmful effect, and an offense of glorifying violent crime, but in both cases determined that it was not proportionate or appropriate to do so.