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The Harmful Digital Communications Bill has recently been reported back from the Justice and Electoral Select Committee. The Bill seeks to deter, prevent and mitigate the harm caused to individuals through digital communications and to provide victims of harmful digital communications with a quick and efficient means of redress. In addition to modernising existing legislation and establishing a new civil enforcement regime, the Bill controversially introduces a new criminal offence of posting a harmful communication with the intent that the communication causes harm to a victim. Surprisingly, the offence differs significantly from comparable legislation abroad where neither a mens rea standard of intent is present nor a requirement that a victim must suffer serious emotional distress in order for an offender to be liable. This paper critiques the likely application of the offence and ultimately concludes that in light of differing legislation abroad and cases which have arisen since the enactment of the Communications Act in the United Kingdom, that the mens rea standard should be modified to include subjective recklessness, and the requirement that an intended victim must suffer actual harm should be removed.

The criminalisation of intentionally harmful digital communications - Encouraging the responsible use of cyberspace or an offence of unnecessarily limited application?