After an introduction from Shayhan Patelmaster, chair of the SCL Junior Lawyers Group, Professor David Ormerod began with a brief outline of what role the Law Commission plays in society, acting as an independent body for legal reform in England and Wales. He also highlighted the caveat of the Commission’s work that the Government must have expressed a serious intention to take forward law reform in this area before work commences. He then outlined the origins of the recently published Scoping Report:
The origins of the report
“The development of the internet has caused a seismic shift in the way we communicate as a society and has brought with it the potential for harm and offence on a huge scale. Online activity is used to humiliate, control and threaten victims as well as to plan and orchestrate acts of violence” – CPS 2018
David then moved on to discuss the impetus behind the Law Commission’s work in this area, detailing the current climate of offensive communications where a lack of clarity and understanding of the law has created a “wild west” of online abuse. It was clear from around six months ago, when the Prime Minister commissioned phase 1 of the report, that there was a need for reform.
What makes online and offline different?
The focus of the evening then turned to the key differences between offensive communication in an offline and online setting. In particular, the following key areas were highlighted as being drastically different online.
- The nature of the content – even one to one communication in many cases is viewable by the many (think mentions on Twitter). The content is permanent, searchable and exists in far greater volumes. In the context of messages , negative threats such “I will not x you” are not, unless they are grossly offensive, currently criminal but can still be construed as abusive.
- The characteristics of the abuser – it can be particularly difficult for the victim to identify the abuser without help from the platform or the police. An abuser no longer has to be in the same room, or even country to send immediately effective abuse. Furthermore, the possibility of coordinated “piled-on” abuse is far easier to achieve online. Finally, many abusers feel emboldened by the perceived anonymity of posting online, even those who are not anonymous don’t believe they are committing a crime.
- The characteristics of the victim – online abuse has a disproportionate impact on women, with 67% of women surveyed feeling apprehension when thinking about the internet or social media (Amnesty International).
What should the focus of reform be?
Following a brief overview of the existing applicable law, David moved onto the Commission’s recommendations on what areas of the law require reform.
- A general review of the current communication offences – providing clarity of definitions that reflect the reality of online communication. Examining what appropriate thresholds should be for criminal liability
- Coordinated online campaigns
- Online hate speech
- Online privacy abuses – currently the only remedies available are fines under the Data Protection Act 2018/GDPR regime and those under s.33 of the Criminal Justice and Courts Act 2015
David closed his presentation by stressing that the Commission had not had enough time to suggest meaningful solutions to the aforementioned issues. The Law Commission is currently discussing the commencement of a possible phase 2 of the report with Government. He also recommended that any solutions should be future-proofed to avoid the inevitable evolution of current technology, that is likely to leave the law once again trailing behind.
Round-table discussion
The second element of the evening comprised of a discussion between David and attendees at the event. The following points were amongst those addressed:
- Administrative workability – wow can strained police resources be effectively used when the volume of content is considered?
- Platform liability – outside the scope of the report’s remit but still an important point to consider given the recent report by Parliament’s Digital, Culture, Media and Sport Committee
- The age of criminal liability – given that children are increasingly communicating online before the age of 10, how can equally offensive communications be tackled at this age. This was also outside the Commission’s remit
A summary and the report itself can be found on the Law Commission website.
About the Speaker: Professor David Ormerod is a Professor at QMU and Commissioner for Criminal Law at the Law Commission. He tweets as @OrmerodDavid.
Christopher Ireland is currently SCL Student Ambassador at the University of Southampton but is soon to join the Legal Innovation and Technology team at Simmons & Simmons
