Law Commission consultation on communications offences – Law Society response

The proposals

In its consultation paper launched on 11 September 2020, the Law Commission made a number of proposals for reform of the criminal law concerning communications offences, 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 revolution in online communications has offered extraordinary new opportunities to communicate with one another and on an unprecedented scale.

However, those opportunities also present increased scope for harm: the physical boundaries of a home now afford no haven to the bullied; the domestic abuser can exert ever greater control over the life of the abused; many thousands of people can now abuse a single person at once and from anywhere in the world.

The proposals include:

• a new offence to replace the current communications offences (the Malicious Communications Act 1988 and the Communications Act 2003) to criminalise behaviour where a communication would likely cause harm
• covering 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)
• including communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the Communications Act 2003
• introducing 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
• including cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available

Our view

We submitted our response on 18 December 2020. We agreed that the case for reform, as set out in the consultation paper, is made out.

Clearly the law relating to communications offences needs to be updated to reflect the way in which people communicate in the twenty-first century.

In reforming the law, we stressed the importance or respecting fundamental rights such as freedom of expression and privacy.

In order to comply with the rule of law the new criminal offences must be clear and certain, such that citizens can know precisely what conduct and communications are permitted and what will constitute a criminal offence.

We raised some concerns as to the definitions contained in the proposed new offence, and the mental element proposed, which is broad, unconventional and potentially vague in meaning.

We suggested, given the subject matter of the new offence, that the need to respect human rights be explicitly set out in the legislation creating the offence.

What this means for solicitors

If and when the new offences are enacted into law criminal solicitors, be they prosecutors or defence, will need to become familiar with them.

Next steps

The Law Commission will now consider all the responses to the consultation submitted by a number of organisations and individuals, and consider what, if any, changes need to be made to the proposals.