Online abuse and harassment: criminal remedies

The irresponsible publication of inaccurate, abusive or private material online can give rise to a number of different civil causes of action. The most common of these are libel, harassment, misuse of confidential information and breach of the Data Protection Act 1998. The application of the latter three is a relatively new development in law. However, arguably the more significant change in the landscape is the identity of the prospective defendant; that is the 'publisher'. 15 years ago the term publisher would nearly always refer to the traditional press or publishing companies. There was no Twitter and little blogging. The old media was careful. If a newspaper libelled someone it could be sued. If it made too many mistakes it could go out of business. Today we are all publishers. setting up a website or a blog no longer requires any expertise. social networking is widespread; 30 million Britons - half the population - use Facebook, 10 million tweet. The majority of this new breed of publishers is sensible and law-abiding. However, there is a sizable minority who are not. A blogger or social networker may be driven revenge, passion, hatred and/or prejudice. They may lack judgement and/or be labouring under the misapprehension that the right to freedom of expression under Article 10 of the ECHR means that they can say whatever they want. The damage done by online publishing can be extreme. The world wide web does exactly what it says on the tin; upload and you publish to the whole world. Despite the size of the internet, an unintended consequence of the efficiency of search engines is that offending publications can quickly appear at the front of the haystack.

A firm letter from solicitors to a publisher may have the desired effect: the publisher realises that they have perhaps overstepped the mark and removes the offending material. Alternatively or additionally, a publisher has no appetite for litigation and again the material is removed. However, there will be circumstances where a publisher refuses to remove material because they either feel they are justified in publishing it, are indifferent to the damage caused and/or are acting maliciously. In these circumstances a decision has to be made whether to instigate legal proceedings. Litigation will be stressful, time-consuming and expensive. If the defendant is a 'man of straw' there will be no prospect of the claimant recovering their legal costs, let alone damages. Thus, the penniless defendant may feel they have nothing to lose in ignoring a letter of claim. In extreme circumstances, a defendant may yearn to be sued so that they can have their 'day in court' and garner more publicity. They may even see it as part of the game; having intended to provoke an angry reaction.

Are there any alternatives? One can complain to a hosting company, social networking site or the search engine companies. sometimes this may work, but often it will not. search engine companies have made it clear they do not want to police the internet. Under Us law intermediaries are effectively immune from suit. In the High Court case of

Tamiz v Google Inc Google UK Ltd [2012] EWHC 449 (QB) Mr Justice Eady held that Google, as the owner of Blogger, was not a publisher at common law [in the context of a libel claim]. Brett Wilson LLP is currently acting for Mr Tamiz in the appeal of this decision which is due to be heard in the Court of Appeal in December.

In any event, even if one could secure an injunction [requiring removal of the material], damages and costs against an intermediary, a determined primary publisher could simply switch hosting companies.  A publisher can choose a sympathetic hosting company in a far-flung country where enforcement of an English judgment would be difficult or impossible. The same material would reappear on the internet and the claimant would be back to square one.  Thus, in certain circumstances, going after the middle man may only be a temporary solution.

so what can one do to stop the determined publisher where taking civil action against them is not economically viable? In theory there may be answers within the criminal law.  'Defamatory libel' is no longer a criminal offence, having been formally abolished by section 73 of the Coroners and Justice Act 2009.  Therefore the publication of false statements likely to lower an individuals reputation is not an offence on its own. However, there may be circumstances where the publication of a defamatory statement is an offence or forms part of an offence under different statutes. For example, under the Communications Act 2003 or Protection from Harassment Act 1997. If the publisher is repeatedly publishing upsetting allegations such as 'X is a scum con artist and embezzles from charities' on a number of online forums and websites, it could be said that they are engaging in a course of conduct that amounts to harassment. The Protection from Harassment Act 1997 created a civil cause of action and two criminal offences. The basic criminal offence of harassment is punishable by up to six months' imprisonment.  Harassment that causes another to fear violence carries a prison sentence of up to five years.  The key issue here will not be whether what the publisher is saying is true (as is often the case in libel claims), but whether their conduct is 'reasonable'.   Liability for harassment only arises if there is a 'course of conduct' - this means there is more than one instance of the conduct complained of.   However, the courts have held that material uploaded to the internet is repeatedly published every time it is accessed by a user of the website. Thus, a publisher may embark on a course of conduct by uploading or tweeting one statement.

similarly, the type of breach of privacy claims now brought in the civil courts as actions for the misuse of confidential information will not necessarily attract criminal liability. This can be contrasted with the position in France where breach of privacy is a criminal offence in its own right; a recent example of its use being the criminal complaint by the Duchess of Cambridge in relation to the topless pictures of her sunbathing in a holiday villa. However, there may be circumstances where a criminal offence is committed - if the conduct is intrusive and repeated it may amount to harassment. Again, online publication may establish a course of conduct. secondly, if the material published is grossly offensive, indecent, obscene or consitutes information that the publisher knows it to be false, there may be liability under the Communications Act 2003.

A number of high profile prosecutions have recently been brought under the Communications Act 2003 in relation to online publications. These have ranged from the tweeting of jokes made in poor taste through to the 'trolling' of individuals on Facebook. There are two relevant offences. Firstly, section 127 (1) which is set out below:-

A person is guilty of an offence if he”

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

secondly, section 127(2) of the Act:-

A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he”

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

Both offences carry a maximum sentence of six months' imprisonment.

section 127 has been criticised as being an assault on freedom expression. The offence is problematic because its interpretation requires a subjective approach - what one person finds offensive another may not. In any event, sending an individual to prison for making a joke in poor taste may seem inappropriate - particularly if is an isolated event. Last month we reported that the Director of Public Prosecutions had launched a consultation on this very issue (see http://brettwilsonllp.blogspot.co.uk/2012/09/cps-to-introduce-guidance-on-when-to.html) 

Regardless of its faults, the Act clearly provides a framework for authorities to take action against individuals who are intent on causing mischief and who are not likely to be deterred by the threat of civil action.  section 127(2) in particular is tailor-made to use against a cyberpest who does not fear the threat of a libel writ.

It is unclear whether the recent spate of prosecutions is indicative of a wider willingness of the police to investigate these type of allegations or whether victims are going to have to continue to 'put up' if they are unable to take action through the civil courts.