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.
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:
reform and consolidation of existing criminal laws dealing with offensive and abusive communications online
a specific review considering how the law can more effectively protect victims who are subject to a campaign of online harassment
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 done 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
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.
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.
Comment: Law Commission must safeguard freedom of expression
Index on Censorship urges the Law Commission to safeguard freedom of expression as it moves towards the second phase of its review of abusive and offensive online communications.
The Law Commission
published a report on the first phase of its review of criminal law in this area on 1 November 2018.
While Index welcomes the report's recognition that current UK law lacks clarity and certainty, the review is addressing questions that impact directly on freedom of expression and the Law Commission should now proceed with great caution.
Safeguarding the fundamental right to freedom of expression should be a guiding principle for the the Law Commission's next steps. Successive court rulings have confirmed that freedom of expression includes having and expressing views that
offend, shock or disturb. As Lord Justice Sir Stephen Sedley said in a 1999 ruling:
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not
The next phase of the review should outline how the UK can show global leadership by setting an example for how to improve outdated legislation in a way that ensures freedom of expression, including speech that is contentious, unwelcome and
Index on Censorship chief executive Jodie Ginsberg said:
"Index will be studying the Law Commission's first phase report on its review of abusive and offensive online communications carefully. Future proposals could have a very negative impact on freedom of expression online and in other areas.
Index urges the Law Commission to proceed with care."
The Government has announced the organisations that will sit on the Executive Board of a new national body to tackle online harms in the UK.
The UK Council for Internet Safety (UKCIS) is the successor to the UK Council for Child Internet Safety (UKCCIS), with an expanded scope to improve online safety for everyone in the UK.
The Executive Board brings together expertise from a range of organisations in the tech industry, civil society and public sector.
Margot James, Minister for Digital and the Creative Industries said:
Only through collaborative action will the UK be the safest place to be online. By bringing together a wealth of expertise from a wide range of fields, UKCIS can be an example to the world on how we can work together to
face the challenges of the digital revolution in an effective and responsible way.
UKCIS has been established to allow these organisations to collaborate and coordinate a UK-wide approach to online safety.
It will contribute to the Government's commitment to make the UK the safest place in the world to be online, and will help to inform the development of the forthcoming Online Harms White Paper.
Priority areas of focus will include online harms experienced by children such as cyberbullying and sexual exploitation; radicalisation and extremism; violence against women and girls; hate crime and hate speech; and forms
of discrimination against groups protected under the Equality Act, for example on the basis of disability or race.
CEO of Internet Matters Carolyn Bunting said:
We are delighted to sit on the Executive Board of UKCIS where we are able to represent parents needs in keeping their children safe online.
Online safety demands a collaborative approach and by bringing industry together we hope we can bring about real change and help everyone benefit from the opportunities the digital world has to offer.
The UKCIS Executive Board consists of the following organisations:
Commission for Countering Extremism
End Violence Against Women Coalition
Independent Advisory Group on Hate Crime
Internet Watch Foundation
Internet Service Providers and Mobile Operators (rotating between BT, Sky, TalkTalk, Three, Virgin Media, Vodafone)
National Police Chiefs' Council
National Crime Agency - CEOP Command
Northern Ireland Executive
UKCIS Evidence Group Chair
The UKCIS Executive Board is jointly chaired by Margot James, Minister for Digital and the Creative Industries (Department for Digital, Culture, Media and Sport); Victoria Atkins, Minister for Crime, Safeguarding and
Vulnerability (Home Office); and Nadeem Zahawi, Minister for Children and Families (Department for Education). It also includes representatives from the Devolved Administrations of Scotland, Wales and Northern Ireland. Board membership will be
kept under periodic review, to ensure it represents the full range of online harms that the government seeks to tackle.
As far as I can see if a porn website verifies your age with personal data, it will probably also require you tick tick a consent box with a hol load of small print that nobody ever reads. Now if that small print lets it forward all personal
data, coupled with porn viewing data, to the Kremlin's dirty tricks and blackmail department then that's ok with the the Government's age verification law. So for sure some porn viewers are going to get burnt because of what the government has
legislated and because of what the BBFC have implemented.
So perhaps it is not surprising that the BBFC has asked the government to pick up the tab should the BBFC be sued by people harmed by their decisions. After all it was the government who set up the unsafe environment, not the BBFC.
Margot James The Minister of State, Department for Culture, Media and Sport announced in Parliament:
I am today laying a Departmental Minute to advise that the Department for Digital, Culture, Media and Sport (DCMS) has received approval from Her Majesty's Treasury (HMT) to recognise a new Contingent Liability which will come into effect when
age verification powers under Part 3 of the Digital Economy Act 2017 enter force.
The contingent liability will provide indemnity to the British Board of Film Classification (BBFC) against legal proceedings brought against the BBFC in its role as the age verification regulator for online pornography.
As you know, the Digital Economy Act introduces the requirement for commercial providers of online pornography to have robust age verification controls to protect children and young people under 18 from exposure to online pornography. As the
designated age verification regulator, the BBFC will have extensive powers to take enforcement action against non-compliant sites. The BBFC can issue civil proceedings, give notice to payment-service providers or ancillary service providers, or
direct internet service providers to block access to websites where a provider of online pornography remains non-compliant.
The BBFC expects a high level of voluntary compliance by providers of online pornography. To encourage compliance, the BBFC has engaged with industry, charities and undertaken a public consultation on its regulatory approach. Furthermore, the
BBFC will ensure that it takes a proportionate approach to enforcement and will maintain arrangements for an appeals process to be overseen by an independent appeals body. This will help reduce the risk of potential legal action against the BBFC.
However, despite the effective work with industry, charities and the public to promote and encourage compliance, this is a new law and there nevertheless remains a risk that the BBFC will be exposed to legal challenge on the basis of decisions
taken as the age verification regulator or on grounds of principle from those opposed to the policy.
As this is a new policy, it is not possible to quantify accurately the value of such risks. The Government estimates a realistic risk range to be between 2£1m - 2£10m in the first year, based on likely number and scale of legal challenges. The
BBFC investigated options to procure commercial insurance but failed to do so given difficulties in accurately determining the size of potential risks. The Government therefore will ensure that the BBFC is protected against any legal action
brought against the BBFC as a result of carrying out duties as the age verification regulator.
The Contingent Liability is required to be in place for the duration of the period the BBFC remain the age verification regulator. However, we expect the likelihood of the Contingent Liability being called upon to diminish over time as the regime
settles in and relevant industries become accustomed to it. If the liability is called upon, provision for any payment will be sought through the normal Supply procedure.
It is usual to allow a period of 14 Sitting Days prior to accepting a Contingent Liability, to provide Members of Parliament an opportunity to raise any objections.