Trolling legislation needs to be simplified, says Law Commission

This article titled “Trolling legislation needs to be simplified, says Law Commission” was written by Owen Bowcott Legal affairs correspondent, for theguardian.com on Wednesday 13th July 2016 12.25 UTC

Legislation criminalising indecent or grossly offensive communications should be clarified to help tackle abuse and “trolling” on the internet, the Law Commission has suggested.

Launching a public consultation on laws that may need reform, the body that identifies legal flaws also proposed reviewing ineffective or outdated parliamentary acts governing weddings, surrogacy, the “Maxwellisation” process – in which individuals facing criticism are given an opportunity to respond during public inquiries – codification of the law in Wales and confiscation of the proceeds of crime.

Many of the laws used to prosecute online abuse predate the digital age. Part 1 of the Malicious Communications Act 1988 makes it an offence to send a communication which is “indecent or grossly offensive” with the intention of causing “distress or anxiety” while section 127 of the Communications Act 2003 applies to threats and statements known to be false.

More than 1,200 people were convicted under section 127 in 2014, compared with only 143 people in 2004. There was also a tenfold increase over the same period in convictions under the Malicious Communications Act.

Free speech campaigners, such as Article 19, have raised concerns about the confusion surrounding the broad definition of “grossly offensive” in the 1988 and 2003 acts. “This confusion is increased by the scarcity of legal argument available due to the frequency of guilty pleas in cases of this nature,” the Law Commission says.

Other laws governing harassment, public order offences and revenge porn are also used to prosecute online behaviour deemed to be criminal.

“There is a clear public interest in tackling online abuse and ‘trolling’,” the Law Commission notes, “but this must be done through clear, and predictable legal provisions.”

The Law Commission says it could consider whether the current law is capable of dealing with offensive internet communications, and whether there is scope for simplifying the law.

On weddings, the commission said it had identified a series of problems raised by recent legal changes. They include where a marriage can take place – for example, outside, which is not currently generally permitted by the law. At present, some religious marriages are found to be invalid because they took place in a location permitted by religious or cultural practices but not currently permitted by law.

There are also problems over who should be able to solemnise a marriage, the content of any ceremony, notice and registration requirements for a marriage, insufficient clarity on the formalities required for a marriage to be valid and how far the rules governing the formation of a civil partnership should be aligned with those for the solemnisation of a marriage.

The government has called for changes to the way the surrogacy laws operate. The main issue has been the dilemma faced by courts, which cannot make a parental order in favour of a single person.

The Law Commission notes: “There is potential uncertainty caused by surrogates (and sometimes their husbands) being entered as parent(s) on the birth certificate of a child born as the result of a surrogacy arrangement. Currently, parental orders can only be obtained after the birth of the child and upon an application to court by the intended parents. In one case, the effect of the law ‘was that the children were marooned stateless and parentless’.”

The conditions for making parental orders are alleged, by some lawyers, to be over-restrictive.

The time taken to complete public inquiries has aroused concern. “The recent publication of the report of the Iraq inquiry almost seven years after the committee chaired by Sir John Chilcot began its work on 30 July 2009 is one example, but by no means the only one,” The Law Commission observes.

One factor said to be a cause of delay is the practice of sending witnesses relevant sections of a draft report in which they are criticised. This practice is known as Maxwellisation, following the 1974 inquiry into the publisher Robert Maxwell. Maxwellisation, it is suggested, goes far beyond what natural justice requires. The Law Commission is asking for public support to investigate the problem.

The commission’s next programme of law reform begins in October but it is seeking public responses to help it identify priorities.

Sir David Bean, the chairman of the Law Commission, said: “We must not forget, however, that there are still many other areas of the law which cause real problems for our citizens and require urgent reform. The need for modern, simple and accessible law remains as great as ever.”

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