Backbench Business: Regulation and Prevention of Online Harms

A Backbench Business debate on the Regulation and Prevention of Online Harms has been scheduled for Thursday 19 November 2020. Jeremy Wright MP will open the debate.

Online Harms White Paper (April 2019)

An Online Harms White Paper was published on 8 April 2019. In a statement to the Commons, Jeremy Wright, the then Secretary of State for Digital, Culture, Media and Sport, gave this context:

• …For so many people, the internet is an integral part of daily life; nearly 90% of UK adults are online, and for 12 to 15-year-olds the figure is 99%. As the internet continues to grow and transform our lives, we need to think carefully about how we want it to develop. In many ways, the internet is a powerful force for good; it can be used to forge connections, share knowledge and spread opportunity across the world. But it can also be used to circulate terrorist material, undermine civil discourse, spread disinformation, and to bully or abuse.

• Our challenge as a society is to help shape an internet that is open and vibrant, but that also protects its users from harm. There is clear evidence that we are not succeeding. Over 8,000 sexual offences against children with an online element were reported to the police in 2017, and that figure is continuing to rise. Up to 20% of young people in the UK have experienced bullying online…People are closing their social media accounts following unacceptable online abuse. For the vulnerable, online experiences can mean cyber-bullying and the risk of grooming and exploitation. We cannot allow such behaviour to undermine the very real benefits that the digital revolution can bring. If we surrender our online spaces to those who spread hate, abuse and fear, we will all lose.

According to the White Paper, existing regulatory and voluntary initiatives had “not gone far or fast enough” to keep users safe online. The Paper proposed a single regulatory framework to tackle a range of harms. At its core would be a statutory duty of care for internet companies. An independent regulator would oversee and enforce compliance with the duty. A consultation on the proposals closed on 1 July 2019.

Reaction to the White Paper

The White Paper received a mixed reaction. Children’s charities were positive. The NSPCC said that the Paper was a “hugely significant commitment” that could make the UK a “world pioneer in protecting children online”. However, some commentators raised concerns that harms were insufficiently defined and that the Paper blurred the boundary between illegal and harmful content. The Open Rights Group and the Index on Censorship warned that the proposed framework could threaten freedom of expression.

Interim response (February 2020)

In February 2020, the Government published its initial response to the consultation on the White Paper. This stated, among other things, that the Government was minded to make Ofcom the regulator for online harms.

When will a final Government response be published?

On 24 September 2020, Oliver Dowden, Secretary of State for Digital, Culture, Media and Sport, said that a final response to the consultation on the White Paper would be published “this year, with a view to having the legislation at the beginning of next year”.

For further background to the White Paper, see the Library Briefing Paper, Social media regulation (CBP 8743, 26 February 2020).

Offensive online communications: the Law Commission’s review

A range of criminal offences can cover offensive online communications, including sexual offences, public order offences, and stalking and harassment. There are also specific communications offences under s127 of the Communications Act 2003 and s1 of the Malicious Communications Act 1988. These prohibit communications that are menacing, grossly offensive, indecent, obscene or false. The Crown Prosecution Service website provides an overview of the current approach to prosecuting offensive online communications.

However, there are concerns that these offences – which predate the widespread use of social media platforms – are inadequate to deal with online harassment and abuse. There have therefore been calls for the Government to review the current law to ensure it is fit for purpose.

In 2016, the Law Commission consulted on whether reform of the law on online communications should be part of its 13th Programme of Law Reform. The project was subsequently commissioned by Theresa May’s Government in February 2018, which asked the Law Commission to “review the laws around offensive communications and assess whether they provide the right protection to victims online”. The Reform of the Communications Offences project page on the Law Commission’s provides full details of the project’s progress to date.

In November 2018, the Law Commission published a Scoping Report on Abusive and Offensive Online Communications. The report analysed the current state of the relevant criminal law and concluded that there was scope to improve it.

In June 2019 the Government announced that it had engaged the Law Commission to embark on the next phase of the review, with a final report to be published in spring/summer 2021.

The Law Commission launched a full consultation paper on 11 September 2020. Responses are sought by 18 December 2020. The Law Commission set out the following summary of the proposals on which it is seeking views:

• A new offence to replace the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm.
  • This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim).
  • This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003.
  • The proposals include introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences.
• Cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available.
• Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse.[1]

For the full consultation paper and a summary, please see:

• Harmful Online Communications: The Criminal Offences - A Consultation paper
• Harmful Online Communications: The Criminal Offences - Summary of the Consultation Paper

[1] Law Commission, Reform of the Communications Offences: Current project status