Monday, 22 November 2021

Licence to chill

To begin with, a confession. I should probably have paid more attention to the Law Commission’s project on reforming communications offences.  The Commission published its Final Report in July 2021, recommending new offences to replace S.127 Communications Act 2003 and the Malicious Communications Act 1988.  

Now that the government has indicated that it is minded to accept the Law Commission’s recommendations, a closer – even if 11th hour - look is called for: doubly so, since under the proposed Online Safety Bill a service provider would be obliged to take steps to remove user content if it has “reasonable grounds to believe” that the content is illegal. The two provisions would thus work hand in glove.

There is no doubt that S.127, at any rate, is in need of reform. The question is whether the proposed replacement is an improvement. Unfortunately, that closer look suggests that the Law Commission’s recommended harm-based offence has significant problems. These arise in particular for a public post to a general audience. 

The proposed new offence

The elements of the Law Commission’s proposed new offence are:

(1) the defendant sent or posted a communication that was likely to cause harm to a likely audience;

(2) in sending or posting the communication, the defendant intended to cause harm to a likely audience; and

(3) the defendant sent or posted the communication without reasonable excuse.

(4) For the purposes of this offence:

(a) a communication is a letter, article, or electronic communication;

(b) a likely audience is someone who, at the point at which the communication was sent or posted by the defendant, was likely to see, hear, or otherwise encounter it; and

(c) harm is psychological harm, amounting to at least serious distress.

(5) When deciding whether the communication was likely to cause harm to a likely audience, the court must have regard to the context in which the communication was sent or posted, including the characteristics of a likely audience.

(6) When deciding whether the defendant had a reasonable excuse for sending or posting the communication, the court must have regard to whether the communication was, or was meant as, a contribution to a matter of public interest.

The Law Commission goes on to recommend that “likely” be defined as “a real or substantial risk”. This requires no further explanation for “likely to cause harm”. For “a likely audience”, it would mean a real or substantial risk of seeing, hearing, or otherwise encountering the communication. (Report [2.119])

Psychological harm

The challenge for any communications offence based on harm to a reader is how to reconcile the need for an objective rule governing speech with the subjectivity of how speech is perceived. The cost of getting it wrong is that we end up with a variation on the heckler’s veto: speech chilled by fear of criminal liability arising from the bare assertion of a claim to have suffered harm.

The focus on likelihood of ‘psychological harm’ as the criterion for the recommended offence has provoked criticism on grounds of subjectivity. It is notorious that protagonists in controversial areas of debate may claim to be traumatised by views with which they are in deep disagreement. The very kinds of speech that are meant to have the greatest freedom of of expression protections – political and religious – are perhaps those in relation to which that kind of claim is most likely to be made.

The Law Commission would argue that the recommended offence revolves around whether relevant harm is likely to be caused to someone likely to encounter the communication in question (the ‘conduct element’ of the offence). Harm has to be both likely and serious. A bare claim to have suffered harm would therefore not of itself demonstrate that harm was likely or serious, since a complainant might be unforeseeably sensitive. Additionally, the prosecution would have to show that the communication was made without reasonable excuse and that the defendant did not intend to harm someone likely to encounter the communication.

Kinds of audience

The Law Commission stresses that the offence would focus on the factual context within which the communication took place. Thus, the likelihood of a private communication sent to one person causing harm would be adjudged most obviously according to the characteristics of the intended recipient. If there was a real or substantial risk that the intended recipient would suffer harm, then (whether or not the intended recipient actually suffered harm) the conduct element would be made out. Further, if it was likely (at the point of sending the communication) that someone other than the intended recipient would also see the communication, then it would be relevant to consider whether that other person would be likely to suffer harm from doing so, taking into account their characteristics.

A similar analysis would apply to a group of readers. A post to a forum dedicated to disability issues would be likely to be read by people with disabilities. That characteristic would be taken into account, with the result that a likely audience would be likely to be caused serious distress by a hate post about disabled people. The Law Commission Consultation Paper applies that logic to the example of a tweet directed to a well-known disability charity by means of the ‘@’ function. The likely audience would primarily be the charity and its followers, many of whom could be assumed to have a disability.

How, though, should this analysis be applied to a public post to a general audience? What would be the relevant characteristics of a likely audience? How are those to be determined when no particular kind of individual is especially likely to encounter the post?

Does the general nature of the audience mean that the risk of satisfying the conduct element is reduced, because no particular relevant characteristics of an audience can be identified? Or is the risk increased, as the larger the audience the more likely it is to contain at least one person with characteristics such that they are likely to suffer harm? Since the draft offence refers to ‘someone’, one likely person appears to be sufficient to amount to a likely audience. The Consultation Paper at [5.124], discussing ‘likely audience’ in the context of the then proposed mental element of the offence, adopts that position.

The Law Commission Report does not fully address the question of the characteristics of a general audience. It responded to submissions raising concerns on the question of public posts by rejecting suggestions that a “reasonable person” standard should be applied, on the basis that sufficient protection was provided by the requirement of intent to harm and the need to prove lack of reasonable excuse.

Actual or hypothetical audience?

The uncertainty about the position of public posts to a general audience is exacerbated by lack of clarity over whether the conduct element of the offence requires proof that someone likely to encounter the communication actually did so (in which case the court’s analysis would presumably tend to be focused on the characteristics of the person shown to have encountered it, and the likelihood of their being harmed as a result); or whether it would be sufficient to rely on the mere likelihood of someone encountering it (in which case the court would appear to have to decide what characteristics to attribute to a hypothetical likely member of the audience).

If the latter, then at least for a public post to a general audience the relevant factual context - a feature of the proposed offence on which the Law Commission places considerable reliance -  would seem, as regards the characteristics of the hypothetical person likely to suffer harm, to have to be constructed in the minds of the judge or jury. 

The Law Commission states that the proposed offence is complete, both for likely harm and likely audience, at the point of sending the communication (Rep 2.56, 2.91, 2.117). On that logic it should not matter if no-one can be shown actually to have been harmed or actually to have encountered the communication. Proof of likelihood should suffice for both.      

The Law Commission also says (Rep 2.256) that:

“where a communication was sent or posted from a device to a social media platform, but was not made visible by that platform (perhaps because of preventative algorithms), it could be impossible for the offence to be made out because the prosecution would have to prove that there was a likely audience who was at a real and substantial risk of seeing the message. It might be that no one was at a real or substantial risk of seeing the communication (i.e. the likely audience was nobody).”

If the offence is complete at the point of sending, and if sending is the point at which the likely audience is to be determined, what would be the relevance of the post subsequently being blocked by the platform upon receipt? Does the likelihood of the post being blocked have to be considered? So could the offence still be committed if the post was unlikely to be blocked, but in fact was? Or, conversely, would the offence not be committed if the post was likely to be blocked, but slipped through? 

Such conundrums apart, the more hypothetical the conduct element of the offence, the more significant is the Law Commission’s rejection of a “reasonable person” when considering likelihood of harm. It leaves open the possibility that a notional member of a likely audience could foreseeably be someone of unusual, or even extreme, sensitivity.

Whether the likely audience member contemplated by the offence is actual or notional, as already noted the Law Commission’s intention appears to be that it would suffice if one person in the audience were likely to encounter the communication and likely to suffer harm as a result.

The question of whether the actual presence of someone in the audience has to be proved finds a parallel in offences under the Public Order Act 1986. These differ as to whether they require that a real person could have heard the relevant words, or simply that a hypothetical person could have done so. Thus for S.5(1) Public Order Act physical presence matters: were the words used “within the hearing or sight of a person” likely to be caused harm? The presence of an actual person likely to be caused harm has to be proved; but it does not have to be proved that such person actually heard the words or suffered harm. If the person present did hear them, the likelihood of their suffering relevant harm is judged according to their relevant characteristics. Thus a police officer may be regarded as possessing more fortitude than an ordinary member of the public.

In contrast, the offences of riot, affray and violent disorder under the Public Order Act are all expressly framed by reference to the effect of the conduct on a notional person of reasonable firmness hypothetically present at the scene; with no requirement that such a person be at, or be likely to be at, the scene.

Universal standards

One of the main criticisms of the existing law is that the supposedly objective categories of speech laid down (such as ‘grossly offensive’) are so vague as to be unacceptably subjective in their application by prosecution and the courts. The Law Commission endorses that criticism.  It rejects as unworkable universal standards for categories of speech, in favour of a factually context-specific harm-based approach.  

Yet a completely hypothetical interpretation of the Law Commission’s proposed offence could require the court to carry out an exercise – attributing characteristics to a notional member of a general audience - as subjective as that for which the existing offences (or at least s.127) are rightly criticised.

The Law Commission emphasises that “likely” harm means a “real or substantial risk”, not a mere risk or possibility. But if the assumed victim is a notional rather than an actual member of a general audience where does that lead, if not into the forbidden territory of inviting the court to divine universal standards: a set of attributes with which a notional member of the audience has to be clothed?

Claims to have suffered actual harm

The converse of the Law Commission’s emphasis on “likely harm” is that if someone claims to have suffered harm from encountering the communication, or indeed proves that they actually have done so, that should not be conclusive.

In practice, as the Law Commission has acknowledged, evidence of actual harm to an actual person may count towards likelihood of harm (but may not be determinative). (Consultation Paper [5.90])

Thus the Law Commission states that “the mere fact that someone was harmed does not imply that harm was likely … the jury or magistrate will have to determine as a matter of fact that, at the point of sending, harm was likely. If a person has an extreme and entirely unforeseeable reaction, the element of likely harm will not be satisfied.” (Report [2.107])

However, the Law Commission has also rejected the suggestion that a reasonableness standard should be applied. The result appears to be that if one person of unusual sensitivity, sufficient to be at real or substantial risk of harm, is foreseeably likely to encounter the communication, then the “likely audience” requirement would be satisfied. Hence the significance of the possible argument that the larger the audience of a public post, the more likely that it may contain such a person.

Insertion into an audience

At the level of practical consequences, whichever interpretation of the proposed offence is correct – actual or hypothetical likely audience member – it appears to provide a route for someone to attempt to criminalise someone else’s controversial views by inserting themselves into a likely audience.  The Law Commission accepted the possibility of this tactic (Report [2.153]), but considered that other elements of the offence (the need to prove lack of reasonable excuse and intent to harm) would constitute sufficient protection from criminalisation.

However, whilst it discussed how a court might approach the matter, the Report did not address in detail the possible deterrent effect on continued communication, nor the interaction with the illegality provisions of the draft Online Safety Bill.

How might the tactic work? Let us assume a social media post to a general audience, not about any one person, but expressing views with which others may profoundly disagree – whether the subject matter be politics, religion, or any other area in which some may claim to be traumatised by views that they find repugnant.

Would such a communication be at risk of illegality if the audience is likely to contain someone who would find what was said severely distressing? The Law Commission’s answer is ‘No’: not because one sensitive person in a general audience is not enough, but first of all because the necessary intent to cause severe distress to a likely audience member would be lacking; and second, because ordinary (even if highly contentious) political discourse should count as a contribution to a matter of public interest (Consultation Paper [5.185] – [5.187], Report [2.152] – [2.153]).

Nevertheless, it would be an easy matter for someone who objects to the contents of the post to seek to put further communications at risk by entering the conversation. One reply from someone who claims to be severely distressed by the views expressed could create an increased risk (actual or perceived) of committing the offence if the views were to be repeated.

That would be the case whether ‘likely audience’ requires the presence of an actual or hypothetical audience member. If it requires a foreseeable actual audience member, one has now appeared. It could hardly be suggested that, for the future, their presence is not foreseeable. The question for the conduct element would be whether, as claimed, they would be likely to be harmed.

If, on the other hand, the “likely audience” is entirely hypothetical, would an intervention by a real person claiming to be harmed make any difference? There are two reasons to think that it could:

1.      If there were any doubt that it was foreseeable that the audience is likely to contain someone with that degree of sensitivity, that doubt is dispelled.

2.     In practice, as the Law Commission has acknowledged, evidence of actual harm to an actual person may count towards likelihood of harm (but may not be determinative).

On either interpretation of the offence, any further communications would be with knowledge of the audience member and their claim to have been harmed. That would create a more concrete factual context for an argument that likely harm resulting from any further communications was intentional.

Of course, if a further communication were to be prosecuted and go to trial it still might not amount to an offence. The context would have to be examined. Serious distress might not be established.  The prosecution might not be able to prove lack of reasonable excuse. Intent to harm might still not be established.

But that is not really the significant issue where chilling effect is concerned. Rational apprehension of increased risk of committing an offence, by virtue of crystallisation of a likely audience and the claim to harm, would be capable of creating a chilling effect on further communications

The Law Commission may view the need to prove lack of reasonable excuse and intent to harm as fundamental to a court’s consideration. However, someone told that their potential criminal liability for future posts rests on those two criteria might, rationally, see things less diffidently.

If insertion into the audience has not chilled further communication, a further tactical step could be to notify the platform and assert that they have reasonable grounds to believe the continuing posts are illegal. Reasonable grounds (not actual illegality, manifest illegality or even likely illegality) is the threshold that would trigger the platform’s duty to take the posts down swiftly under S.9(3)(d) of the draft Online Safety Bill.

Conclusion

The Law Commission’s proposal draws some inspiration from legislation enacted in 2015 in New Zealand. That, too, is contextual and harm-based. However, the New Zealand offence is firmly anchored in actual harm to an actual identifiable person at whom the communication was targeted, and is qualified by an ‘ordinary reasonable person’ provision. The Law Commission has cut its recommended offence adrift from those moorings. 

That has significant consequences for the scope of the conduct element of the offence, especially when applied to public posts to a general audience. The structure of the conduct element also lends itself to tactical chilling of speech. It is questionable whether these concerns would be sufficiently compensated by the requirement to prove intent to harm and lack of reasonable excuse.



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