Abusive and offensive online communications – protecting the public and the role of online service providers

Shayhan Patelmaster | Senior | Law | +44 207 9809 507 | shayhan.patelmaster@uk.ey.com

On Tuesday 16 April I chaired a roundtable meeting on an issue which has rarely been out of the press in recent months – abusive and offensive online communications. The meeting was organised by the Junior Lawyers Group of the Society for Computers and Law, the leading industry body for information technology and law, in collaboration with the Law Commission. We were lucky enough to discuss the subject with the Law Commissioner for criminal law for England and Wales, who presented the key findings of the Law Commission’s ‘Scoping Report’ – Abusive and Offensive Online Communications. The purpose of the report was to set out the criminal law applicable to abusive and offensive online communications, and highlight some of the challenges for the criminal law due to the growth of online communications in recent years.

The timing of the roundtable meeting was ideal. The previous week another important piece of the potential future regulatory jigsaw had been revealed – the Department for Digital, Culture, Media and Sport released its highly anticipated Online Harms White Paper, setting out the Government’s plans to introduce a ‘world-leading package’ of online safety measures. As part of this White Paper, the Government has proposed introducing a new regulatory framework for companies facilitating user interaction online, including introducing a new statutory duty of care to make such companies responsible for the safety of their users.

Back in February 2018, the Prime Minister, Theresa May, instructed the Law Commission to undertake a short and sharp six-month investigation into the applicable criminal law applying to abusive and offensive online communications. The Law Commission was asked to identify any deficiencies and consider whether there is equivalent protection for users both online and offline. The Law Commission published its findings on these matters late last year, concluding that applicable criminal offences do exist, that in some cases the breadth of online offences results in conduct being criminalised online where equivalent conduct may not be criminalised offline, and that the applicable criminal offences could be improved to be clearer and more accurately target harm caused by online conduct. In phase two of its investigations, the Law Commission intends to explore fully how such improvements can be made by amending the vast number of offences which are potentially applicable to online conduct.

Three points stand out from the ‘Scoping Report’ and the expert views in the room.

  1. The harm perpetrated online appears to affect vulnerable groups and minorities to a disproportionate extent. This aggravating characteristic of abusive behaviour online was clearly explored and understood by the Law Commission, and there are numerous references to this aspect of online harm throughout the ‘Scoping Report’.
  2. The criminal law may only be one part of the picture when regulating the online sphere, but it is an important one. Clarity in the criminal law is needed to provide important benchmarks to industry participants when monitoring and administering their platforms.
  3. It is notable how widely some of the applicable criminal offences are drawn. It is striking to read section 1 of the Malicious Communications Act 1988 and Section 127 of the Communications Act 2003, and consider how much online behaviour is potentially caught in the ambit of these offences. The potential burden on police forces, the Crown Prosecution Service and courts should not be underestimated, for example in deciding which potentially criminal activity to act upon given the breadth of the applicable offences and the limited resources of these organisations.

The momentum behind new legislation governing online service providers appears to be building fast. The work of the Law Commission can expect to form a crucial part in informing the new regulatory landscape governing online interactions between users. However, it is notable that the Government has not yet formally commenced phase two of the Law Commission’s work on Abusive and Offensive Online Communications. If online platforms will be expected to monitor their services effectively, they will need clear guidance from the criminal law on where conduct moves from distasteful or offensive, through to grossly offensive and potentially criminal behaviour.

Please contact us if you have any questions on the law affecting online service providers.

We will continue to monitor relevant changes in law and the likely effects on online service providers.