In December, ARTICLE 19 responded to the UK Law Commission’s consultation on reform of communications offences. ARTICLE 19 welcomes this consultation but finds that the Law Commission’s proposals for criminalising communications that are ‘likely to cause harm’ are deeply flawed. We urge the Law Commission to re-consider the scope of its proposed new offence.
ARTICLE 19 welcomes the UK Law Commission’s consultation on reform of communications offences. We have long argued that some UK communications offences, such as the criminalisation of ‘grossly offensive’ communications under section 127 of the Communications Act 2003 are overly broad and should be repealed. ARTICLE 19 also recognises that communications online raise serious challenges for human rights protection. In particular, some communication can prevent others from speaking up, silence marginalised groups or have some serious consequences offline such as physical violence, harassment or violations of privacy.
Unfortunately, we are unable to support the Law Commission’s proposals for an alternative offence that would criminalise behaviour that is ‘likely to cause harm’ to a ‘likely audience’. Whilst well-intentioned, these proposals are also unduly broad and could have a very serious chilling effect on freedom of expression.
The new proposed offence contains some elements that can help protect freedom of expression, including: (i) the reference to intent; (ii) the mention that courts must have regard to the context in which the communication was sent or posted.
Unfortunately, we believe that these elements are insufficient to outweigh the significant concerns raised by the other elements of the proposed offence:
- Likelihood of harm: This criterion is unduly broad. To begin with, the definition of harm itself is too broad. It includes both physical and psychological harm. The latter would have to reach the level of “serious emotional distress.” Given the nature of conversations on Twitter, it is easy to imagine that this level would be reached easily. Speech offences must be extremely narrow in order to comply with international standards on freedom of expression. Criminalising speech that could cause psychological harm is a recipe for chilling speech that some find offensive or critical. For this reason, we generally do not recommend including the likelihood of psychological harm in these kinds of offences.
- Likely audience: The fact that the offence is directed to a ‘likely audience’ is also concerning and overly vague. As currently drafted, someone posting an opinion on a contentious issue, whether political or otherwise, could well cause ‘serious emotional distress’ to a person they are not targeting in any way, simply because that person had decided to follow them or that opinion had been re-tweeted by someone else they knew. Given how recommender systems work, how people often follow other social media users they might disagree with or how people might look for opinions they know they will be offended by, we are concerned that the various elements of the offence would be rapidly made out. This would ultimately have a chilling effect on freedom of speech.
- Intent to harm or awareness of the risk harming a likely audience: We are concerned that the intent lacks specificity since it is not limited to intent to cause physical harm. It is also enough to be aware of the risk of harming. In practice, this means that someone who knows that a particular topic is controversial but goes ahead and uses robust language that they know may upset others to a high degree could get caught. It is also unclear how significant the risk needs to be for this particular element of the offence to be triggered. In our view, mere awareness of harm is too low a threshold for a speech offence and could have a serious chilling effect on freedom of expression.
- Without reasonable excuse: A reasonable excuse “defence” is not sufficient to protect freedom of expression: this effectively means that speech must be justified by default. Under international law, freedom of expression is a fundamental right that can be restricted only in exceptional circumstances. This effectively turns this principle on its head. It would also mean that individuals must have a ‘reasonable’ excuse to engage in debate or dissent, i.e. they must have an excuse to exercise their fundamental right to freedom of expression. The fact that the courts must have regard to the question whether what was said contributed to a ‘matter of public interest’ is somewhat positive but it is also reflective of a very narrow view of freedom of expression, one that is limited to speech that is considered to have more value.
In our view, the Law Commission should re-think the scope of the proposed offence entirely, alongside other proposals to criminalise the sending of communications that a defendant knows to be false and intends to cause non‑trivial emotional, psychological, or physical harm, without reasonable excuse. ARTICLE 19 stands ready to engage further with the Law Commission’s plans for reform in this challenging area.