October 28, 2021

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UK Considers Criminalizing Cyberflashing And Internet Pile-Ons

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The UK’s Law Commission, responsible for reviewing legislation, is calling for more specific laws governing cyberflashing and ‘pile-on’ harassment.

In a report published today, the Law Commission says that while the Sexual Offences Act 2003 criminalizes the exposure of genitals, it needs to be amended to include photographs and videos.

It would apply where the defendant intends to cause alarm, distress or humiliation, is acting for a sexual purpose or is reckless as to whether the victim is caused alarm, distress or humiliation.

According to the Commission, current wording such as “grossly offensive” and “indecent, set the bar for criminality too low, while at the same time potentially criminalizing legitimate activity such as consensual sexting within a couple.

“Online abuse can cause untold harm to those targeted, and change is needed to ensure we are protecting victims from abuse such as cyberflashing and pile-on harassment,” says Professor Penney Lewis, criminal law commissioner at the Law Commission.

“At the same time, our reforms would better protect freedom of expression by narrowing the reach of the criminal law so it only criminalises the most harmful behaviour.”

When it comes to harassment, the Law Commission wants to see a new, specific offence targeting communications that contain threats of serious harm defined as including serious injury, rape and serious financial harm.

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And a new offence based on likely psychological harm will shift the focus away from the actual content of a communication, and onto its potentially significant harmful effects. It would apply where a communication is likely to cause harm to its audience, is intended to cause harm and has been sent or posted without reasonable excuse.

“This new offence could also capture pile-on harassment – when a number of different individuals send harassing communications to a victim,” says the Law Commission. “The fact that the offence is context-specific means it could be applied where a person deliberately joins a pile-on intending to cause harm.”

The changes would also make it an offence to intentionally encourage or assist serious self-harm, to send flashing images to people with epilepsy with the intention of inducing seizures.

However, the threshold for sending false communications has been raised, from the current need to cause “annoyance, inconvenience or needless anxiety”. A person would be liable only if they knowingly send or post a communication that they know to be false and they intend to cause non-trivial emotional, psychological, or physical harm to the likely audience, without a reasonable excuse.

According to the Alan Turing Institute, around a third of people have been exposed to online abuse, while Ditch the Label’s Annual Bullying Survey has found that of those who have been bullied within the last 12 months, 63 per cent experienced a moderate to extreme impact on their mental health.

However, some are concerned about the effects of the proposals on freedom of speech. Pressure group Article 19 has already criticized the proposals, claiming that “likelihood of harm” and “likely audience” are overly-broad terms, and that the phrase “without reasonable excuse” places the onus on the defendant, while international law makes freedom of expression a fundamental right that can be restricted only in exceptional circumstances.

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