Prosecuting Communication Offences: Interpreting the Harms Model

This article explores the Law Commission’s 2021 paper - Modernising Communications Offences: a final report. The Commission recommends replacing the Malicious Communications Act 1988 and section 127(1) of the Communications Act 2003 with a new offence based on a harms-based model to control unlawful communications. The article contextualises the problems with current communication law, discusses the Harmful Digital Communications Act 2015 in New Zealand (the inspiration behind the Commission’s proposal and final recommendations) and the use of the terms “likely harm”, “likely audience” and “reasonable excuse”. The article concludes by suggesting that the Law Commission’s recommendations for this area of the law are inadequate and do not overcome many of the issues previously highlighted (in the Commission’s own Scoping Report) with the application of communication law in the 21st century, running the real risk of the overcriminalisation of speech