They include creating offences to tackle cyberflashing (unsolicited photos), the encouragement or assistance of serious self-harm and sending knowingly false communications. To protect freedom of expression, the offences would be harm-based, covering only communications that cause serious distress.
The recommendations would reform the offences in s 1 of the Malicious Communications Act 1988.
Professor Penney Lewis, Criminal Law Commissioner at the Law Commission, said: ‘Online abuse can cause untold harm to those targeted and change is needed to ensure we are protecting victims from abuse such as cyberflashing and pile-on harassment.
‘At the same time, our reforms would better protect freedom of expression by narrowing the reach of the criminal law so it only criminalises the most harmful behaviour.’
The Law Commission said current laws rely on vague terms, set the threshold for criminality too low and potentially criminalise some forms of free expression that should be protected. For example, consensual ‘sexting’ between adults could potentially be classed as ‘indecent’ under current law.
The Commission’s recommended new offence would be based on likely psychological harm, shifting the focus away from content to potentially harmful effects. A criminal offence would be potentially committed where the defendant ‘sends or posts a communication that is likely to cause harm to a likely audience’, in doing so, the defendant ‘intends to cause harm to a likely audience’, and the defendant does so ‘without reasonable excuse’.
‘Harm’ refers to ‘serious distress’―a threshold familiar in criminal law, and used in offences in the Protection from Harassment Act 1997. Media articles would be exempt from the offence. ‘Reasonable excuse’ would include whether the communication was in, or was meant to be in, the public interest.
