This is a short joint submission to the Law Commission's Harmful Online Offences consultation. This submission is by the Open Rights Group and Preiskel & Co LLP solicitors.
Opposing the new offence
We do not support the Law Commission's proposed offence. We are concerned with its breadth. We echo and adopt Article 19's submissions in this regard.
The threshold of a "likelihood to harm"
appears to be very broad, and it could include many communications which could cause distress to readers, as the result of their strongly-held religious, political or cultural beliefs, but be legitimate discourse.
"Intent to harm or awareness of the risk of harming a likely audience" compounds this. "Risk" as a threshold seems very low. It appears to open up prosecution to anyone whose postings can be related to someone who has experienced
mental distress as a result of reading those communications.
"Likely audience" again is in our view vague and open to interpretation. Making communications "without reasonable excuse" reverses the normal
burden for speech: speech, protected as a fundamental right, is permissible unless it is unlawful. Speech should not be confined to that which courts feel is most socially useful, and therefore defensible under a "reasonable excuse" defence.
In short, by attempting to capture a wide range of behaviours within a single online offence, with a highly malleable concept of mental distress and wide potential audiences, the offence opens up the potential for a wide
range of legitimate communications to be deemed criminal.
Additionally, the problems we identify with the new potential offence may be made worse by the government's proposed Online Harms framework, which will impose a legal
duty over Internet Society Services to exercise a "duty of care" over their users. Given that "mental distress" is very personal and driven by context, this ambiguity could exacerbate the legal uncertainties inherent within the
"duty of care" expectations. If the legal test for the point where mental distress triggers criminal liability is difficult to understand, or to assess content against, this is likely to create an incentive for companies to remove legal content
that is found in the grey areas of "likely audiences" experiencing a "risk" of mental distress in order to successfully carry out their legal duties, and avoid direct risk of regulatory action.
A review is to take place into whether misogynistic conduct should be treated as a hate crime, following Labour MP Stella Creasy's call to change the law.
The move was announced during a debate on proposed legislation to criminalise upskirting in
England and Wales. On Wednesday, MPs approved the Voyeurism Bill, which would ban the taking of unsolicited pictures under someone's clothing, known as upskirting, in England and Wales.
'Justice' Minister Lucy Frazer said the Voyeurism Bill was
not the right vehicle for seeking such a change in the law but said she sympathised with Creasy's views. She said ministers would fund a review into the coverage and approach of hate crime laws.
The Law Commission will now review how sex and
gender characteristics are treated within existing hate crime laws and whether new offences are needed. This review will include how protected characteristics, including sex and gender characteristics, should be considered by new or existing hate crime
Update: Governments should not be policing thought
The Law Commission will review how sex and gender characteristics are treated within existing hate crime laws and whether new offences are needed.
Index does not believe the UK needs new laws to protect women from abuse and
The UK already has dozens of laws on its books that make criminal the kind of abusive actions that are disproportionately targeted at women: rape, harassment, stalking. Despite this, the most egregious crimes against
women frequently go unpunished. In the case of rape, conviction rates are woeful. A report published in 2017 found that only one in 14 rapes reported in England and Wales ended in a conviction.
Creating new laws that make misogyny
a hate crime will do little to change this, as lawyers argued earlier this week . Nor are they likely to help change attitudes. In fact they can do the opposite.
Laws that criminalise speech are deeply problematic. In a free
society, thoughts should not be criminal no matter how hateful they are. Yet laws that make hate criminal -- in a well-meaning but misplaced effort to protect minorities and persecuted groups -- are on the rise.
We should all be
worried about this. As the US delegation noted in a United Nations Human Rights Council meeting in 2015, hate speech laws are increasingly being abused by those in power to target political opponents or to persecute the very minority groups such laws are
meant to protect.
In addition, they do little to improve tolerance or treatment of such groups: Such laws, including blasphemy laws, tend to reinforce divisions rather than promote societal harmony, the US delegation said. The
presence of these laws has little discernible effect on reducing actual incidences of hate speech. In some cases such laws actually serve to foment violence against members of minority groups accused of expressing unpopular viewpoints.
As if to prove their point, Russia used the same meeting to praise hate speech laws and the need to police hate speech in Ukraine so as not to ignite nationalistic fires.
Tackling hate requires changes in
society's attitude. Some of those changes need laws -- such as those we rightly already have to outlaw discrimination in the workplace. Some require major changes in our institutions to the structures and practices that reinforce inequality. But
prohibiting speech, or policing thought, is not the way to do this.
Offsite Comment: Stella Creasy's war on thoughtcrime