Culture Secretary calls for overhaul of online abuse law

Maria Miller, the Culture Secretary, and Senior Labour MP Yvette Cooper have both called for a review of the law governing online harassment, stalking and abuse to prevent inconsistent enforcement and to encourage those affected to report the crime.

The current position

With the continuing rise in users of social media and a plethora of platforms, including Facebook, Twitter, Snapchat and Periscope, online abuse is more prevalent and commonplace than it has ever been.  Online abuse takes many guises. For instance, it can include inappropriate sexting (messages of a sexual nature), the publication of racial and homophobic posts, trolling and revenge porn.  Victims of these offences are covered by a number of pieces of legislation including the Protection from Harassment Act 1997 and the Malicious Communications Act 1988.

Ms Miller has drawn particular issue with two points surrounding online abuse.  Firstly, that social media network owners do not effectively monitor their websites/platforms and allow them to operate like the 'Wild West'.  Secondly, that there is a lack of Police training in respect of these offences.

Social media networks

Many commentators are critical of the way online giants respond (or fail to respond) to abuse reported on their platforms.  With millions of users, policing a network is a substantial task, although clearly an effective system is necessary to bury the 'Wild West' mantra.

Speaking to the BBC, a Facebook spokesperson explained there was a "small minority of people... intent on harassing others online" and that it was possible to effectively monitor the whole network.  However, it stressed that they continued to work with online safety experts and the feedback of their users in order to take preventative measures.  Facebook has recently implemented new security features on the site such as impersonation alerts, which flag up pages purporting to be the user.

Kira O'Connor from Twitter has said that the platform is "simply unable to delete prejudicial views from society".  She commented that intolerance is rooted in society and therefore such posts were likely to continue to appear.

Charlotte Halloway, Head of Policy at TechUK, which represents technology companies in the UK, said that the legislation in respect of this abuse was "fit for purpose" and that the focus should be on making sure that the Police and Crown Prosecution Service have the correct training to enforce the law.

Police enforcement

Recently, singer Lily Allen commented on the failure of the police to take sufficient action when she became the victim of the stalker.  The abuse started online with the creation of the Twitter handle @lilyallenRIP.  Allen commented that the police "made [her] feel like a nuisance, rather than a victim".  Police training in respect of online abuse is not yet mandatory.  The national policing lead for cybercrime training and development, Stephen Kavanagh, told BBC Radio 4's Today programme that victims are receiving an inconsistent approach from front desk officers.  Following an ‘explosion’ of crime in this area, he observed that more training is necessary.

The CPS has provided three examples of when to charge under existing legislation.  These were (1) online activity amounting to a credible threat to an individual, (2) specifically targeting an individual for harassment, stalking, coercive behaviour or revenge porn and (3) breaching court orders.

Reform

Following The Guardian’s campaign ‘Web We Want’ which looked into comments left on its own website, Yvette Cooper MP has suggested that online threats, harassment and stalking should be included in the Crime Survey for England and Wales. The survey, run by the Office of National Statistics and utilised by the Government, would evaluate the reported and unreported cases of online abuse with the aim of developing preventative policies.  Cooper herself has launched a campaign entitled ‘Reclaim the Internet’ and believes that legislation in this area should follow suit of the criminalisation of Revenge Porn which has given people the confidence to report this crime.  This was supported by the Culture Secretary who has commented that the law in its current state makes it difficult for the Police to take effective action.

Europe

In Delfi -v- Estonia 64569/09, heard in the European Court of Human Rights (‘ECtHR’) and subsequently referred to the Grand Chamber, it was found that a leading Estonian news site should monitor online comment forums and take action in respect of threatening posts and hate speech.  Although this decision does not directly bind England and Wales, ECtHR jurisprudence is persuasive. In the future, news platforms could be obliged to effectively monitor activity on their sites and take appropriate action where necessary.

The future

The owners of platforms/websites are under considerable pressure to do more to police inappropriate conduct on their networks. Although, there will always be a grey area in respect of content that may offend others but should arguably be protected in the interests of freedom of expression.

It is difficult to know where the line should be drawn and the problem is compounded by the fact that whilst networks bring together individuals from across the globe, they are often owned and operated from within the USA.   In Europe an individual's rights to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) are balanced against an individual's right to respect for private and family rights (under Article 8 of the ECHR) - which includes protecting individuals from harassment and unwarranted defamation.  In the USA, free speech is enshrined in the First Amendment and is jealously guarded.  Hate speech is effectively a constitutional right.

Undoubtedly, the police need to be properly resourced to deal with online abuse.  This can only come with proper training and funding.  One should not underestimate the enormity of the task of policing the internet, particularly where networks straddle borders and where much of what is complained about will be behaviour which whilst unpleasant should not necessarily be categorised as criminal.

Finally, whilst existing legislation can often be used to prosecute wrongdoers, nearly all of it pre-dates the internet in its current form.  There is a good argument for a new Act which consolidates and refines the law relating to online abuse.

Click here to read how Brett Wilson LLP can assist you if you have been a victim of online harassment or abuse.