Consultation on amending Scottish hate crime legislation: analysis of responses

12. Online hate (Q27)

12.1 Criminal offences committed online can be aggravated in the same way as offline offences. However, the consultation paper noted growing concern about the increase in hostile online activity and the response to this. Within this context, Lord Bracadale’s review considered how well the current law operates in relation to online conduct, and whether any changes are needed. The review concluded that the proposed reforms to hate crime legislation (and the introduction of new gender-related laws in particular) would provide an appropriate response to both online and offline hate offences, and that no further specific legislative change focusing on online offences was therefore needed at this stage. Question 27 in the consultation asked if respondents agreed with this view, as follows:      

Question 27: Do you agree with Lord Bracadale’s recommendation that no specific legislative change is necessary with respect to online conduct? [Yes / No / Unsure]

Key points

• There were mixed views on the recommendation that no specific legislative change was necessary with respect to online conduct – 44% of respondents agreed, 23% disagreed, and 33% were unsure (representing 292, 153 and 224 out of 669 respondents). However, organisations were more likely than individuals to answer ‘yes’ (58% compared to 42%; 42 out of 73 respondents, and 250 out of 596 respondents respectively).
• Respondents who agreed that no legislative change was required mainly thought that online conduct was already covered by existing legislation, or that it would be adequately covered if other recommendations were taken forward. Additionally, some thought that the nature of online activity did not merit a legislative response, or that the challenges involved meant that legislative action was not worthwhile.
• Those who thought that legislation was required mainly said that online hate was a serious and increasingly prevalent issue which needed a specific tailored response.  
• There was also a general view that legislation and enforcement activity in this area would be inherently difficult, and that a package of measures (legislative and non-legislative) was needed to address issues related to online conduct.

12.2 Table 12.1 shows that there were mixed views on Lord Bracadale’s recommendation that no specific legislative change is necessary with respect to online conduct – 44% of respondents agreed, 23% disagreed, and 33% were unsure. However, organisations were more likely than individuals to say ‘yes’ to this question (58% compared to 42%), while individuals were more likely than organisations to say ‘no’ (24% compared to 15%). 

Table 12.1: Q27 – Do you agree with Lord Bracadale’s recommendation that no specific legislative change is necessary with respect to online conduct?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	17	52%	6	18%	10	30%	33	100%
Public sector / partnerships	14	67%	1	5%	6	29%	21	100%
Faith groups	9	90%	–	0%	1	10%	10	100%
Other organisations	2	22%	4	44%	3	33%	9	100%
Total organisations	42	58%	11	15%	20	27%	73	100%
Total individuals	250	42%	142	24%	204	34%	596	100%
Total (organisations and individuals)	292	44%	153	23%	224	33%	669	100%

Percentages may not total 100 due to rounding.

12.3 Altogether, 285 respondents (62 organisations and 223 individuals) provided further comments at Question 27, and the views expressed are presented below. Respondents often made very similar points regardless of how they answered the tick-box question.

12.4 It should be noted that individual respondents in particular often used their comments to restate points made in response to previous questions in relation to the need for hate crime laws and the appropriate scope of hate crime legislation, the balance to be struck with protecting freedom of expression, and the legal thresholds that should be in place for such offences etc. Some simply restated their overall views on hate crime legislation (generally opposition) without offering any additional comments on the need for specific legislation covering online conduct. 

12.5 Additionally, it was not always clear from people’s comments if they appreciated that the question was asking about the need for additional legislation beyond that proposed in Lord Bracadale’s other recommendations.   

Support for no specific legislative change

12.6 Respondents who agreed with Lord Bracadale’s recommendation offered one of two main reasons for their view:

• They thought online conduct was already covered by existing legislation. This view was mainly put forward by individuals, faith organisations and some third sector organisations.  
• They thought online conduct would be adequately covered if other recommendations related to new aggravations and stirring up offences were taken forward. This view was expressed by a range of organisations as well as some individuals. 

12.7 Alongside both of these views, respondents argued that online conduct should be held to the same legislative standards and treated the same as offline conduct so therefore no separate legislative change was needed.

12.8 However, two further perspectives were offered by some individual respondents:

• Some thought that the nature of online conduct did not merit a legislative response. These respondents argued that online abuse does not cause direct harm, and that people have the choice not to look at content that they find offensive; there was also a view that social media companies are already taking reasonable action on this issue. Occasionally, respondents suggested that online activity was already over-regulated and this should be reduced, or ‘rolled back’.   
• Others said that the challenge of enforcing laws against online conduct (e.g. because of the cross-border nature of online activity, the difficulty of identifying anonymous posters etc.) meant that legislative action would not be worthwhile.

12.9 Organisations who agreed that no specific legislative action was required to tackle online conduct often said that, while they saw online hate as a significant problem, they did not think that additional legislation was the answer. Instead they saw this as an issue of education and enforcement. These respondents made similar points to respondents who answered ‘no’ or ‘unsure’, and the relevant views are covered together at paragraph 12.15.   

Opposition to no specific legislative change 

12.10 Those respondents (representing a range of organisation types as well as some individuals) who disagreed with Lord Bracadale’s recommendations made two main points:

• They saw online hate as a serious issue that had a significant impact on individuals and communities and was increasing in prevalence. Respondents highlighted the incidence of online hate related to sex / gender, disability, LGBT communities, young people etc., with some providing evidence of the nature and extent of abuse experienced by different groups. There was a view that online conduct can be particularly abusive and hostile at least partly because of the potential for anonymity.
• They argued that current / non-specific laws are not well designed to accommodate online behaviour, particularly given the rapidly changing nature of online activity. As such, they thought this type of conduct required a tailored response. 

12.11 Less often, respondents also suggested that specific legislation would (i) fill a gap left by the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, or (ii) provide clarity and transparency regarding the legal treatment of online abuse. There was one specific proposal for a new harassment offence covering both online and offline activity.

12.12 Respondents offered two different qualifications to their support for specific legislation in this area:

• Respondents (mainly organisations) often said that this was an inherently difficult area to legislate for, and that new laws on their own would not be enough to tackle online abuse. They thought that legislation would need to be accompanied by other measures. (See paragraph 12.15 for further discussion of this view).
• Less commonly, respondents agreed with the recommendation but stressed the need for any additional offence in this area to incorporate appropriate language and legal thresholds and appropriate protections for freedom of speech. 

12.13 Occasionally, respondents (mainly individuals) argued that the nature of the online environment (e.g. because of its impersonal or indirect nature, because people could choose not to look at content) meant that more limited controls were merited and that any additional legislation and related penalties should reflect this. In addition, there were specific calls for the repeal of Section 127 of Communications Act 2003.

Uncertainty about the need for specific legislative change 

12.14 Respondents who said they were unsure about the need for specific legislative change covering online conduct often made similar points to other respondents who had answered ‘yes’ and ‘no’. In other cases, however, respondents said they (i) did not know enough about the issue, or were not familiar enough with the internet to give a view; or (ii) recognised this as a serious issue and thought action was required but did not know what the best solution was. There were also calls for clarification on how legislative arrangements would work in practice with respect to online conduct. 

Other non-legislative activity to tackle online conduct

12.15 Across all groups of respondents, regardless of how they answered the tick-box question, there was a view that legislation (or specific legislative change) would not on its own represent a sufficient response to online hate. Respondents called for a package of measures including:

• Education and information targeted at the public in general, or specific groups, to ensure appropriate identification and reporting of online criminal conduct – guidance to accompany any new hate crime legislation was suggested  
• Greater support and safeguarding for vulnerable groups using the internet – the specific point was made that the internet was an important resource for many groups (young people, LGBT people, the disabled) and steps needed to be taken to ensure this was a ‘safe space’ for potentially vulnerable individuals who should feel confident about taking action if they experience abuse 
• More resources and training to support the policing and prosecution of legislation in this area 
• Greater regulation of social media companies and platforms, including greater responsibility in term of monitoring content and taking action 
• Action to encourage more positive online behaviour.

Other comments on addressing online conduct

12.16 There were a number of other comments made by a range of mainly organisational respondents who highlighted the complexity of tackling online conduct, and the challenges faced in reaching a judgement on the right course of action. For example, they said:

• This was a rapidly changing area, and that any decision about the need for specific legislative change required further research and investigation, and / or should take account of work being undertaken by the Law Commission.^[12] Some in this group agreed that no additional laws were currently required (they answered ‘yes’ to the closed question), but thought that the matter should be kept under review.  
• This issue needed to be considered in the context of other reforms under consideration. In particular, there was a view that the response to online misogyny should be considered alongside other possible reforms to tackling offline misogyny.
• Other aspects of online activity – covering, for example (i) low-level, repeated and cumulative online abuse; (ii) encouragement to self-harm and suicide, (iii) ‘grooming’ etc. – also gave rise to concern, and also needed to be addressed, with some saying this should be done via legislative change. 
• This was a global issue and could not be solved via Scottish legislation alone – there were calls for the development of a UK or international approach.