English Law Commission Consultation on Harmful Online Behaviour

 The Law Commission of England is holding consultations on what it calls the Reform of the Communications Offences:

"Reform of the law is needed to 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 Law Commission is consulting on proposals to improve the protection afforded to victims by the criminal law, while at the same time provide better safeguards for freedom of expression. We launched our consultation paper on 11 September 2020, and the consultation period will run until 18 December 2020."

In its consultation paper, the Commission makes a number of proposals:

"The proposals include:

• A new offence to replace the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.
  • This would cover 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).
  • This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.
  • The proposals include introduction of 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.
• Cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.
• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse."