The current law relating to communications offences is proving to be out of date already given the surge in digital communication and social media in recent years. In an attempt to address this, The Law Commission has published a set of recommendations aiming to address the harms that arise from online abuse. As a counterbalance, protections for freedom of expression are recommended to increase.
The Law Commission is independent and was set up by parliament to keep the law in England and Wales under review and to recommend reforms. The organisation is headed by a Chairman with four Law Commissioners.
The project was funded by the government as part of its Online Harms strategy and is the third and final report to be published. Two related projects by the Law Commission were on hate crime and the taking, making and sharing of intimate images without consent.
The reforms would be of certain offences in the Malicious Communications Act 1988 and the Communications Act 2003. The Commission concluded that the current offences do not provide consistent protection from harm and may, in some circumstances, interfere with freedom of expression.
The review is of the criminal law covering threatening and false communications, as well as encourage and assisting self-harm and cyber-flashing. The aim is to make sure that the law works with new technology and is future-proofed, that it protects people from genuine harm and abuse and ensures there is space for discussion in that it does not disproportionately affect legitimate freedom of expression.
What is the problem?
Online communications have undergone a revolution which offers many opportunities for people to communicate with each other. The scale of which presents an increased scope for harm: thousands of people from all over the world can target a single person or a domestic abuser can exert control over a victim, for example.
The current offences do not allow use over such a wide range of conduct and some forms of harmful conduct, such as cyber-flashing, remain without criminal sanction. The communications offences in the Acts mentioned above are referred to in the report as “overlapping, ambiguous” and can be unclear for online users, technology companies and law enforcement agencies. “Pile ons” are referenced, where a group of people cause harassment to an individual online as such behaviour is not specifically addressed in the existing offences.
The Commission is also concerned that the current offences are so broad that they may interfere with the right to freedom of expression.
- Harm Based offence
The first recommendation is for a new “harm-based” communications offence to replace the two existing offences under section 127(1) of the Communications Act 2003 and section 1 of the Malicious Communications Act 1988.
The new offence would be based on a more context specific analysis rather than focusing on broad categories of wrongful content. The questions would be given those likely to see a communication, was harm likely? The Commission aims for the offence not to criminalise communications that are grossly offensive but lack the potential for harm whilst ensuring that communications that are genuinely harmful do not escape criminal sanction.
The issue of deliberately sending flashing images to epilepsy sufferer is also discussed with a recommendation that the government considers introducing a specific offence to cover the behaviour.
The recommended offence is:
- the defendant posts a communication that is likely to cause harm to a likely audience;
- in sending the communication the defendant intends to cause harm to a likely audience;
- the defendant poses the communication without reasonable excuse.
- Encouraging or assisting serious self-harm
The Commission received evidence of “deeply troubling behaviour” where vulnerable people were targeted and encouraged to self-harm. An offence is recommended that has a high threshold of harm intended to be inflicted or encouraged, and that the defendant intended to encourage or assist that same level of harm. The high threshold suggested is one of grievous bodily harm.
Cyberflashing is the unsolicited sending of sexual images using digital technology, often experiences as a form of sexual harassment. The recommendation, therefore, is for the Sexual Offences Act 2003 to be amended to include a specific offence targeting the sending of images or video recording of genitals. This would mean that the additional protections provided in the Act, such as Sexual Harm Prevention Orders, could be available.
- Sending knowingly false communications, threatening communications, and making hoax calls to the emergency services
The current offence of knowingly sending a false communication has a low threshold of “causing annoyance, inconvenience or needless anxiety”. The recommendation is to raise the threshold so that the defendant would be liable if:
- he sends or posts a communication that he knows to be false;
- in doing so he intends to cause non-trivial psychological or physical harm to a likely audience; and
- in sending or posting he does so without reasonable excuse.
The provisional proposal in respect of hoax calls is to make it a specific offence. At the moment it is addressed under the Communications Act 2003.
The report is now with the government for review and to consider the recommendations.
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Online abuse is an ever increasing issue before the Courts. In Chabloz v Crown Prosecution Service  EWHC 3094 (Admin) the High Court dealt definitively with several highly technical legal challenges concerning Communications Act defences.
On 25 May 2018 at Westminster Magistrates’ Court, Alison Chabloz, was convicted of three offences under section 127(1)(a) and (b) of the Communications Act 2003. She appealed her convictions to Southwark Crown Court, but on 13 February 2019 her appeal was dismissed. She then appealed by way of judicial review.
What were the charges?
The first two charges involved the sending of a message or matter that was grossly offensive on the internet. This consisted of a hyperlink on her blog to two performances of her antisemitic songs. These songs had been performed by her at a meeting of a right-wing organisation called the London Forum. The meeting had taken place four days earlier, at the Grosvenor Hotel in London. The performances had been video-recorded and then uploaded onto YouTube.
She had not been involved in the uploading. However, she had a free account with wordpress.com and had been allocated a subdomain entitled “tellmemorelies.wordpress.com”. This is a blog which allowed her to publish and manage multimedia content. On this blog she informed those looking at the site that she had performed the songs and pasted a hyperlink. The hyperlink connected with the YouTube site and allowed immediate streaming of the London Forum video of her performances.
The third charge concerned section 127(1)(a), and occurred on 2nd September 2017. The applicant accepted that she had uploaded the video of her performing another song called “I like the story as it is – SATIRE!” onto the YouTube website. This song was grossly offensive for the same reasons.
The claimant did not take issue that the songs were grossly offensive. However, she submitted that the posting of a hyperlink was a neutral act which did not cause an offensive message to be sent. In respect of the third offence, she submitted that she had sent the video to a server in California, which was an inanimate object, so communication with it was not possible.
What did the Court say?
In relation to the hyperlink defence, it held:
“It is possible to approach Issue 1 in three different ways and reach the same conclusion: that, on the facts of this case, the applicant was properly convicted under section 127(1)(b).
The first is by reference to ordinary common sense: the applicant told those looking at her blog that she performed these songs and that her performances had been uploaded onto YouTube. To facilitate their access to those performances, she pasted onto her blog page the hyperlink to the YouTube video. That was not in any sense a neutral footnote or a passive reference to something unconnected to her, but instead a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material.
It was the applicant who set in train the sending process. She used the internet to put in place an interface between the two websites (the embedded deep link between her blog and YouTube) which ensured the conveyance of the contents of a video from one to the other. The software created a direct link to where the video was stored and enabled immediate access to it by the push of a button. As long as it remained on YouTube, it was accessible via the applicant’s blog.
Moreover, the purpose of setting up the link was to cause the material to be sent. Without the applicant going onto the YouTube site, copying the hyperlink and pasting it onto her own wordpress.blog page, it would not have been possible for others to access the material from that location. The applicant put in place the process by which the video was sent, which is why it can be said that she caused the message to be sent. It is not tenable to argue, as Mr Davies attempted to do, that the Court should ignore all of that and to say that the causing of it to be sent was the act of the visitor to her blog who clicked on the hyperlink.
The second analysis of Issue 1 considers the posting of the hyperlink by reference to the decisions in Collins and in Chambers. As Lord Bingham stated in Collins, the aim of section 21 is to protect the integrity of a public service and to prevent it being a means by which grossly offensive material may be enabled. That is precisely what the applicant was doing here. In addition, the answering machine situation in Collins is directly analogous to the hyperlink here, and, as per Chambers, it makes no difference if the message (in this case the hyperlink to the YouTube video) was stored as content or as a separate message. I agree with [Counsel] that it would be wrong to place undue emphasis on the technology that was involved in achieving the applicant’s aim.
The third approach to Issue 1 is by reference to the non-binding authorities to which Mr Davies himself referred which dealt expressly with hyperlinks, albeit, as I have said, in the context of defamation. In my view, those authorities are not inconsistent with the approach that I have already outlined. On a proper analysis, both the Canadian Supreme Court in Crookes and the European Court of Human Rights in Magyar suggest that what might matter is the connection between the person posting the hyperlink and the underlying message. Was the defendant endorsing the underlying message, or was it just a footnote? There was room in both cases to say that the defendants were neutral hosts of current affairs sites who were not endorsing the particular message in question, but in the present case the answer is plainly different: the applicant was telling people that there was a video of her singing her songs and providing them with the means by which with one click they could access those performances. That was an unequivocal endorsement of the material.
During the course of his helpful submissions, Mr Davies attempted a number of analogies in order to advance his arguments, including references to blackmail letters sent from abroad, messages to the speaking clock and even a libretto prepared without the author’s permission. As my Lady pointed out during argument, in the modern digital age such analogies are unhelpful. The Court has to deal with the modern world as it is, in order to see whether or not the offence is created by this relatively recent statute have captured this particular type of behaviour. That is at root a relatively simple task, and analogies with other means of communication do not assist.”
The Californian server point
Counsel argued on her behalf that a communication could not be made with or to an inanimate object. Therefore, in relation to the third charge, he said that the sending of the video to YouTube’s server meant that there was no communication and therefore no basis for a conviction under section 127(1)(a).
This argument received short shrift from the Court, which held:
“In my view, this argument fails for four separate reasons. First, there is nothing in the Act to provide any support for the proposition that the message had to be received by a human being in order for the offence to have occurred. [Counsel] accepted that the intended recipient did not need actually to receive it, but maintained that there had to be such an intended recipient in the first place. Such a qualification would, in my view, be contrary to the words of section 127, which is dealing with individuals using a public electronic communications system to send or cause to be sent messages of a particular kind, and does not stipulate if, when, how or by whom any such message has to be received.
Secondly, assuming that [Counsel] is right and there had to be an intended recipient, it is wholly unrealistic to suggest that the video uploaded to YouTube was “a packet of data always intended for an inanimate object” (paragraph 39 of Mr Davies’s skeleton). In my view, it was no such thing: it was a video of a song performed by the applicant, uploaded to YouTube by the applicant, intended solely to be seen by other people. So there were intended recipients, and the criminal offence cannot disappear because the applicant used the YouTube platform as her chosen method of communication.
Thirdly, I consider that [Counsel’s] contentions are contrary to Collins. Lord Bingham made clear that the offence was complete when the message was sent to the inanimate answer machine (see  of his judgment, which I have cited); what happened thereafter was irrelevant to the offence. Otherwise, as he pointed out, criminal liability would turn on the happenstance of, for example, whether the message was received by an individual or not. Moreover, in the light of Collins and the challenges of the digital age, I would suggest that John Stephenson J’s remark in Treacy v DPP  AC 537, on which Mr Davies also relied, that the sort of demand with menaces required for blackmail “cannot of course be an offence if made to the winds” was not meant in a general way but went specifically to a necessary ingredient of the offence of blackmail. It is not applicable here, save perhaps to note that, 50 years on, it might be thought that sending messages to the winds (or certainly the clouds) was a prescient, if rather romantic, description of the internet itself.
Fourthly, [Counsel’s] submissions are contrary to the approach in Chambers, Kingsley Anthony Smith and Sutherland. There is no reason to depart from either the reasoning or the result in any of those cases. There is no reason at all to distinguish between Twitter and YouTube for these purposes.
For these reasons, the fact that the message in question was sent to the YouTube bunker in California, rather than, say, to the applicant’s next-door neighbour, is irrelevant in law. The offence under section 127(1)(a) was made out when the video was downloaded to YouTube by the applicant with the intention that people might view it. That is therefore the answer to Issue 2.”
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