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Digital Business Lawyer

Law Commission to review laws on offensive communications

The UK Law Commission announced on 6 February 2018 that it is to carry out an independent review, upon request of the UK Government as part of its Digital Charter, into the laws around offensive communications in order to assess whether they provide appropriate protection to victims online, and potentially embark on further work on options for reform if deficiencies are identified. The Law Commission states that any potential reforms will be informed by developing policy in the Digital Charter, which was launched on 25 January 2018 and lists making the UK ‘the safest place to be online’ as one of its priority objectives. “There are already a range of legislative tools available to prosecutors, under which it is possible to bring charges against culpable offenders,” comments Gregor Pryor, Partner at Reed Smith. “In fact, we saw a ten-fold increase in prosecutions under Part 1 of the Malicious Communications Act between 2004 and 2014, which largely reflects an increased uptake in social media over that period.”

“The legislative review must be viewed as part of a parallel strategy with the Government’s social media code of practice provided for by the Digital Economy Act,” comments Nick Fenner, Partner at TLT. “This two-pronged approach recognises that there needs to be a way to effectively restrict the spread of offensive material without imposing unduly restrictive obligations on social media platforms and other intermediaries. As has been seen with regulation of the media in the past, it seems likely that the Government’s strategy will be to encourage effective self-regulation in place of legislation.”

In its announcement, the Law Commission lists the areas it will analyse as part of the review, which include how the Malicious Communications Act 1988 and the Communications Act 2003 deal with online communications; whether the law means you need to prove fault or intention to prosecute offensive online communications; whether there is a need to update definitions in the law which technology has rendered obsolete or confused; and what ‘grossly offensive’ means and whether it poses difficulties in legal certainty. 

 

“There are always going to be cases where any reasonable person would agree that something is grossly offensive,” adds Pryor. “However, in most cases ‘grossly offensive’ is not a standard that would be sufficiently certain to provide the necessary degree of legal certainty for people to be able to regulate that conduct online. Such concepts are inherently subjective and tread far too close to the line of moral judgement, something which the law should steer clear of in the modern world, where concepts of morality have such huge divergence.”

 

“It seems likely the Government’s strategy will be to encourage the platforms to adopt effective self-regulation and technological solutions, with legislation as a last resort for platforms that do not sign up to an agreed code or who are failing to implement it effectively,” concludes Fenner. “However, it is unlikely that online platforms will be permitted to retain their immunity from liability for third party postings unless they can show that a combination of self-regulation and technical measures address the issues of serious concern which the Law Commission’s review will highlight.”

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