Helga Law Journal - 01.01.2021, Side 180

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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in sending it is that it should . . . cause distress or anxiety to
the recipient or to any other person to whom he intends that
it or its content or nature should be communicated.333

This addition was a breakthrough because it helped prevent the law from
being rendered irrelevant in the Internet era. It ‘puts together a low-level harm,
merely causing distress and anxiety, with an intention to cause such harm, and
thus it does not provide a criminal sanction for inadvertent innocuous
behaviour’.334 Furthermore, aside from providing the sole route to charge an
accused of one-off online acts, unlike the PHA, it does not require a cause of
action, which allows it to avoid the technical difficulties that may stem from
attempts to prosecute offences that fall in between an online and offline state.
However, it fails to capture the intricacy of online social interactions because the
nature of the stipulated act does not capture the harassment methods that can be
used on social networking sites. Examples of such include repeated friend
requests, “gift” requests and so forth. A more serious consequence of the narrow
mens rea and actus rea of the MCA is that the law becomes even more foreseeable
and out of reach as the PHA confusingly suffers from the opposite problem: its
mens rea and actus rea are too wide.335 It has been suggested by Geach and
Haramlambous that the wide s.2 actus reus of the PHA should be integrated with
the narrow mens rea of the MCA, in order to enable ‘for a low-level form of harm
to be caused such as distress or irritation, as this outcome would need to be
intentionally caused, which would then justify imposing a criminal sanction for
such conduct.336
Compared to real life, it is more legally obscure where the boundaries of
expression lie in the virtual world. This is largely due to the novel ways of
communication available in the virtual world. For example, the ability to post
videos on a platform such as YouTube. The CA 2003 has attempted to cover
these developments by adding two offences under s. 127 to specifically tackle
harassment conducted using electronic communication tools. Both offences
emphasize a public electronic communications network, making them narrow in
nature. According to Lord Bingham, s. 127 does not seek ‘to protect people
against receipt of unsolicited messages which they may find seriously
objectionable’, rather it serves to ‘prohibit the use of a service provided and
funded by the public for the benefit of the public for the transmission of
communications which contravene the basic standards of our society’.337 Indeed,
these offences have great potential to protect the individuals from online
harassment but the application is ultimately confined to public networks. This
excludes harassment which occurs using a private network such as workplace
bullying in the form of instant messaging. Overall the legal regime has failed to

333 Malicious Communications Act 1988, s 1 (1).
334 Geach and Haralambous (n 9), 243.
335 ibid.
336 Geach and Haralambous (n 9), 252.
337 Geach and Haralambous (n 9), 252.
establish clear confines and transparency in their regulation of cyberspace
communications. Not only is the degree to which individuals are protected from
harassment and ‘offensive’ communications dubious, but also the requisite
standards used to judge such speech are also too broad. As a result, the law
hinders cyberspace from fostering meaningful exchanges and from acting as a
platform for individuals to peacefully protest. Digital social movements cannot
be accommodated because of these uncertainties and the awkward silence
regarding the precise point at which expression can trigger the law may deter
unpopular or minority opinions.
7.3 The Second Thread: Contrasting Physical and Online
Protests
Despite laws that now target digital communications, there are no specifics
regarding online protest. However, in practice, the public vs private space debate
has manifested into a frequent obstacle for many protests. Recent developments
have blurred the distinction further. Enright and Bhandar have observed that
private law mechanisms are being increasingly used to counter student protests at
universities.338 Yet, universities have traditionally been considered as quasi-public
because despite being 'intrinsically private corporations’, they ‘serve at universal
public function’, which in the past had a ‘priority’ over their ‘corporate make-
up’.339 Similarly, in Appleby v UK (2003), a protest at a privately-owned shopping
mall was refused by the owners. The organizers applied to the European Court
of Human Rights claiming (ECtHR), arguing that the UK failed to uphold their
obligations to ensure Articles 10 and 11 of the ECHR. In the end, the Court found
that the owners’ private property rights trumped the state’s obligations.340
Unfortunately, it seems that a balance has yet to be struck in regards to protest –
private law mechanisms provides a simple but undeniable counter-position.
Notably, this issue also extends into cyberspace, however, because of the structure
of online communities, it may be harder to uphold the right to peaceful assembly
and free association.
The internet is, in essence, an open network and it is being increasingly seen
as a public good. Audibert and Murray explain that this is because of the
indispensable role that it now plays in our daily lives and its democratic function
in upholding Article 10.341 Yet, not every user subscribes to this principled
approach and the architecture of the Web is far more complicated nowadays. It
has evolved into ‘a patchwork of multi-sided platforms operating with different

338 Lucy Finchett-Maddock, 'The Right To Protest Is Under Threat From Several Different
Directions' <http://www.democraticaudit.com/2014/04/23/eternal-vigilance-is-required-to-
protect-the-right-to-protest/> accessed 25 June 2018.
339 ibid.
340 Appleby v UK [2003] ECHR 222, [2003] All ER (D) 39.
341 Audibert, Lucie C. and Murray, Andrew D. (2016) A principled approach to network neutrality.
SCRIPTED, 13 (2). pp. 118-143.