Reform of the criminal law needed to protect victims from online abuse says Law Commission

1 Nov 2018 12:10 PM

Reforms to the law are required to protect victims from online and social media-based abuse, according to a new Report by the Law Commission for England and Wales.

The full scoping report and a summary can be found here.

In its Scoping Report assessing the state of the law in this area, published today [1st November 2018] the Law Commission raises concerns about the lack of coherence in the current criminal law and the problems this causes for victims, police and prosecutors. It is also critical of the current law’s ability to protect people harmed by a range of behaviour online including:

• Receiving abusive and offensive communications
• “Pile on” harassment, often on social media
• Misuse of private images and information

The Commission is calling for:

1. reform and consolidation of existing criminal laws dealing with offensive and abusive communications online
2. a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment
3. a review of how effectively the criminal law protects personal privacy online

Professor David Ormerod QC, Law Commissioner for Criminal Law said:

“As the internet and social media have become an everyday part of our lives, online abuse has become commonplace for many.”

“Our report highlights the ways in which the criminal law is not keeping pace with these technological changes. We identify the areas of the criminal law most in need of reform in order to protect victims and hold perpetrators to account.”

Responding to the Report, Digital Minister Margot James said:

“Behaviour that is illegal offline should be treated the same when it’s committed online. We’ve listened to victims of online abuse as it’s important that the right legal protections are in place to meet the challenges of new technology.

“There is much more to be doing and we’ll be considering the Law Commission’s findings as we develop a White Paper setting out new laws to make the UK a safer place to be online.

Jess Phillips MP, Chair, and Rt Hon Maria Miller MP, Co-Chair, of the All-Party Parliamentary Group on Domestic Violence and Abuse and Katie Ghose, Chief Executive of Women’s Aid, welcomed the Report saying:

“Online abuse has a devastating impact on survivors and makes them feel as though the abuse is inescapable. Online abuse does not happen in the ‘virtual world’ in isolation; 85% of survivors surveyed by Women’s Aid experienced a pattern of online abuse together with offline abuse. Yet too often it is not taken as seriously as abuse ‘in the real world’.

“The All-Party Parliamentary Group on Domestic Violence and Abuse has long called for legislation in this area to be reviewed to ensure that survivors are protected and perpetrators of online abuse held to account. We welcome the Law Commission’s report, which has found that gaps and inconsistencies in the law mean survivors are being failed. We support the call for further review and reform of the law”.

The need for reform

We were asked to assess whether the current criminal law achieved parity of treatment between online and offline offending. For the most part, we have concluded that abusive online communications are, at least theoretically, criminalised to the same or even a greater degree than equivalent offline offending. However, we consider there is considerable scope for reform:

• Many of the applicable offences do not adequately reflect the nature of some of the offending behaviour in the online environment, and the degree of harm it can cause.
• Practical and cultural barriers mean that not all harmful online conduct is pursued in terms of criminal law enforcement to the same extent that it might be in an offline context.
• More generally, criminal offences could be improved so they are clearer and more effectively target serious harm and criminality.
• The large number of overlapping offences can cause confusion.
• Ambiguous terms such as “gross offensiveness” “obscenity” and “indecency” don’t provide the required clarity for prosecutors.

Reforms would help to reduce and tackle, not only online abuse and offence generally but also:

• “Pile on” harassment, where online harassment is coordinated against an individual. The Report notes that “in practice, it appears that the criminal law is having little effect in punishing and deterring certain forms of group abuse”.
• The most serious privacy breaches – for example the Report highlights concerns about the laws around sharing of private sexual images. It also questions whether the law is adequate to deal with victims who find their personal information e.g. about their health or sexual history, widely spread online.

Impact on victims

The Law Commission heard from those affected by this kind of criminal behaviour including victims’ groups, the charities that support them, MPs and other high-profile victims.

The Report analyses the scale of online offending and suggests that studies show that the groups in society most likely to be affected by abusive communications online include women, young people, ethnic minorities and LGBTQ individuals. For example, the Report finds that gender-based online hate crime, particularly misogynistic abuse, is particularly prevalent and damaging.

It also sets out the factors which make online abuse so common – including the disinhibition of communicating with an unseen victim and the ease with which victims can be identified.

The Report highlights harms caused to the victims of online abuse which include:

• psychological effects, such as depression and anxiety
• emotional harms, such as feelings of shame, loneliness and distress
• physiological harms, including suicide and self-harm in the most extreme cases
• exclusion from public online space and corresponding feelings of isolation
• economic harms
• wider societal harms

It concludes that abuse by groups of offenders online, and the use of visual images to perpetrate abuse are two of the ways in which online abuse can be aggravated.

Next steps

The Department for Digital, Culture, Media and Sport (DCMS) will now analyse the Report and decide on the next steps including what further work the Law Commission can do to produce recommendations for how the criminal law can be improved to tackle online abuse.

Further information/ notes to editors

Find out more about the work, read the full Scoping Report and the summary here.

If you have any media enquiries about this Report or interview requests, please contact Dan Popescu on: daniel.popescu@lawcommission.gov.uk or 07784 275513.

The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.

Other, related, Law Commission work: The Govt has already asked the Law Commission to conduct a broad review of hate crime legislation in England and Wales. The Govt has also announced we will be reviewing the law concerning the taking and sharing of non-consensual intimate images. Those projects contain related, but distinct, topics. For example, this Report calls for the Law Commission’s future work on hate crime and communications offences to include consideration of “the disproportionate targeting of women online, including through explicitly misogynistic language and sentiment”.

Topics outside the scope of this Report: The Report does not address child sexual exploitation online, terrorism offences or the liability of social media platforms. All these topics were outside our agreed Terms of Reference.

The Internet Safety Strategy generally:  In October 2017 the Government launched its Internet Safety Strategy green paper, pledging to make the UK the safest place in the world to be online. It is the first part of the Digital Charter. Our review forms part of that wider strategy; as the first step of working to ensure that the criminal law is providing clear, comprehensible and modern protection against the most serious abusive and offensive communications online.