In July 2021 the Law Commission published plans to replace Sections 127(1) and 127(2) of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988. The Free Speech Union (FSU) agrees that these provisions need to be repealed, but we believe that some of the Commission’s proposals for replacement offences would create new problems for freedom of speech, including a risk of self-censorship by the public online.

The Law Commission proposes:

1. a new “harm-based” communications offence to replace offences within section 127(1) of the Communications Act 2003 and the Malicious Communications Act 1988;
2. a new offence of encouraging or assisting serious self-harm;
3. a new offence of cyberflashing; and
4. new offences of sending knowingly false communications, threatening communications, and making hoax calls to the emergency services to replace section 127(2) of the Communications Act 2003.

We commend the Law Commission’s recognition that freedom to speak only inoffensively is not worth having; its decision not to propose a new offence of glorifying violence and violent crime is also welcome. However we wish to raise concerns in relation to proposals 1–3, especially the new “harm-based” communications offence in proposal 1. (We do not regard the proposal for a specific offence for hoax calls to be a serious concern.)

We do not believe that the Government should take up recommendation 1 as it stands. It should instead simply repeal Section 127(1) of the Communications Act and Section 1 of the Malicious Communications Act; or, if it is inclined to take up the Commission’s recommendations, we believe that they will need to be heavily amended to protect freedom of speech. (Suggested amendments are outlined below.) Among other concerns, the concept of “psychological harm” that informs the proposed offence is too vague, subjective and open to interpretation.

If the Government is minded to take up any of the Law Commission’s proposals, any new offences would have to require proof of serious harm, as well as the intention to cause harm to a realistically defined “likely audience”, and allow a very broad public interest defence. It will need to ensure the prosecution threshold is high. The Commission believes that the proposed offence would be prosecuted even more rarely than existing offences. This would be most welcome, but care should be taken that loose wording does not result in an offence that is broader than intended. We recommend consideration of the following:

1. Intent to cause harm to a likely audience: The FSU has outlined in a consultation response to the Commission that any new offence would need, among other requirements, to be an offence limited to an intent to cause (serious) harm to a likely audience, with the term “likely audience” carefully defined so identity groups could not use the new offence to censor their critics;
2. Reasonable excuse: The definition of “reasonable excuse” needs to be wide enough to allow for the fullest range of discussion and debate;
3. The “public interest defence”: The “reasonable excuse” element of the offence should be reinforced by the self-standing “public interest” element. However, the current interpretation of “public interest” is liable to be too narrow and would need to be defined more broadly so as to encompass views deemed unreasonable or perverse, including when expressed at inopportune times, and views that are offensive to specific groups and public figures, even if these cause distress.
4. Likelihood of causing harm and proof of harm: Making distressing comments about other people should never be an offence. Robust speech often carries a risk of offence, or distress, including to the highly sensitive. Forceful speech cannot be criminalised, which would create a “heckler’s veto”. Irrefutable proof of serious harm should be required (see below).

With respect to the Law Commission’s second and third proposals, while we appreciate concern over cyber-flashing, we are worried that a specific offence to combat this activity would risk criminalising consenting behaviour between couples, and the FSU is against criminalising the encouragement of acts which are not themselves criminal, and therefore does not agree that there should be a specific offence of encouraging self-harm.