Online communications reform could benefit universities

Reform has been recommended by the Law Commission. Its paper, 'Harmful Online Communications: The Criminal Offences', is likely to change the way in which protections under the criminal law are enforced and the potential consequent impact on how such conduct may need to be addressed in the higher education sector.

This is part of a series of articles on online risk in the higher education sector, which also looks at how to deal with online harassment from an HR perspective and what disclosures under freedom of information laws tells us about how providers are addressing online safeguarding.

The Law Commission consultation

The Law Commission's consultation, which recently closed to submissions, follows its earlier 2018 'Scoping Report on Abusive and Offensive Online Communications' which highlighted that current criminal law has been outpaced by technological change and was unsuited to addressing the risk of online harms.

The latest consultation is in addition to separate work being carried out in relation to hate crime and the forthcoming Online Harms Bill.

Both the 2018 report and 2020 consultation paper highlight a number of issues with the present criminal law both in terms of the lack of protection against a number of harms, such as 'piling on' – where thousands of unconnected people around the world can abuse a person – and conversely the over criminalisation of some behaviours due to the way offences are presently defined in the Malicious Communications Act 1988 and the Communications Act 2003.

There are real concerns that the definition of offences under the present law erodes rights to freedom of speech and expression, as enshrined by the Human Rights Act 1998. The Law Commission consultation seeks to promote a change which will lead to the reform and rationalisation of current communications offences and provide affected individuals with coherent and adequate protection from harm.

To achieve this the Law Commission has considered that some of the terminology presently applied in UK criminal law, such as "obscene", "grossly offensive" and "indecent", to be too vague and at risk of criminalising lawful free speech on the assumption that an individual's behaviour is morally and legally reprehensible simply because it causes offence to another. The Law Commission argues that this is a notion that the law should be slow to adopt, citing the leading free speech case of Redmond–Bate v the DPP, in which Lord Justice Sedley held that "freedom to speak inoffensively is not worth having".

Instead the Law Commission's proposals envisage a shift away from vaguely defined terms to a harm-based approach on offences.

The Law Commission's resulting proposals are that:

• The "communications offences" under Section 1 of the Malicious Communications Act 1988 and Section 127 of the Communications Act 2003 are reformed to cover behaviour where a communication would be likely to cause harm;
• The new offence would cover the use of all communications including e-mails, social media, in addition to pile on harassment. This would cover even private networks such as Bluetooth or local intranets that are not presently covered by the 2003 Act;
• A move to a harm-based offence which requires proof of likely harm. In summary, the offence requires evidence that an actor has no reasonable excuse for their communication and intends or is aware of the likely risk of harm that their communication will cause to its recipients. Proof of likely harm will include emotional and psychological harm or at least serious emotional distress. Proof of likely harm is not required under existing offences;
• Adding an offence of cyberflashing – unsolicited sending of images of genitals. This would be regarded as a sexual offence under Section 66 of the Sexual Offences Act 2003 under the Law Commission's proposals;
• The threshold for false communications be raised to require evidence that the defendant knows that the post is false and is intending to cause non-trivial emotional, psychological or physical harm and they have no reasonable excuse.

Impact on higher education providers

It is likely to be well into 2021 before the Law Commission publishes a response to the feedback it has received to its proposals, and it may take several years from then for any recommendations it makes to the government to reform the law to be acted on and become enshrined in law. However, it is worth higher education providers reflecting on how these changes may impact on their approach to managing the risk of online harassment against their students.

A key issue will be the way in which higher education providers define such behaviours in their codes of conduct and disciplinary procedures. While misconduct in the higher education setting is defined by the terms of the student contract and providers have a parallel power to pursue breaches of their disciplinary codes distinct from the criminal law, their categorisation of offences often closely mirrors the criminal law for understandable reasons.

As a result, the majority of higher education providers define online harassment offences in a similar way to the present criminal law, such as by referencing types of offending communications as "offensive". This creates the same difficulties as the Law Commission has identified of creating disproportionate offences and in turn unfairly and potentially unlawfully restricting freedom of speech and expression. In the context of higher education this concern is magnified due to the statutory requirement that registered higher education providers ensure the right to freedom of speech and expression on campus. This obligation has been of further importance since 2018 when it was also included in the conditions for registration with the Office for Students.          

A move to an approach based on evidence of likely harm rather than one based on vaguely defined terms as the test for a conduct breach both within the wider criminal law and within internal higher education codes of conduct would be beneficial. It would arguably create a much fairer and proportionate approach to such allegations and also avoid the additional risk for a registered higher education provider of potentially infringing a student's legal rights to freedom of speech and in turn its conditions of registration.   

In the meantime higher education providers should continue to ensure that their work in this area follows the clear sector focus guidance that has already been prepared to help them address the risk of harassment against students.

These resources include the November 2016 guidance on how to handle student misconduct which may also constitute a criminal offence, which Pinsent Masons assisted in the preparation of, which set out the overarching principles for addressing misconduct allegations, but did not specifically address the online setting. It also includes UUK's similar promotion of a zero-tolerance approach to online harassment in its September 2019 paper 'Changing the Culture: tackling online harassment and promoting online welfare', and most recently in November this year its guidance on tackling racial harassment in higher education.