Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Saturday, 22 August 2009

Cyber-Harassment: Go Directly to Jail

The Guardian reports that Keeley Houghton, 18, of Malvern, has been sentenced to three months' imprisonment for threatening on her Facebook page to kill another young woman. If this sentence sounds a bit harsh for what some might take as childish invective, it was apparently the latest in a long string of instances of Houghton persecuting her victim, including incidents that had led to previous convictions for assault and criminal damage. None of the reports I can find are specific about the offence Houghton was prosecuted for, although the reference to 'Harassment' makes me suspect that the charge was under s.1 Protection from Harassment Act 1997. This requires a 'course of conduct' of two or more incidents that a reasonable person would think was harassment. The report in The Guardian indicates that Houghton had earlier harassed her victim in a pub, so two instances within a few days would certainly be a 'course of conduct' as far as the court was concerned.

This case indicates, probably unsurprisingly, that sending abusive messages on Facebook or via any other social networking site is seen no differently in the eyes of the law from verbal abuse or sending poison-pen letters. But what other legal avenues are open to prosecuting this sort of behaviour?

Another way of prosecuting harassment is under s.5 of the Public Order Act 1986, which defines the offence of causing harassment, alarm or distress. Under s.5(1)(b), an offence is committed if someone

"displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

But it is unlikely that a posting on Facebook would be considered to be such a 'display of writing', especially considering that the Act goes on to say at s.5(2) that:

"An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

Blackstone's Criminal Practice notes at B11.71 that it was held in Chappell v DPP that receiving an abusive letter at home does not constitute an offence under s.5, because it falls in the exclusion under s.5(2). In the course of giving judgement, Potter J noted that had the Malicious Communications Act 1988 been in force when the acts in question had been committed, they would have certainly comprised an offence against s.1 of it, which (as now amended) provides that:

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication]2 which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

This would on the fact of it seem a more fruitful option for charging someone who had made malicious Facebook posts. So, a one-off incident would probably be charged under s.1 MCA 1988, whilst repeated incidents, or one that formed part of a larger course of conduct, would be an offence under s.1 PHA 1997.

Now, it's safe to say that there is a great deal of abusive and harassing material on the Internet. Very little of it ends up in court, and such cases have often been based on defamation rather than harassment. But the impact of bullying should never be underestimated; it can and does ruin lives. Hopefully, this case will show that persistent bullying and harassment, including via online services, can and will be dealt with in the criminal courts.

What it does raise though is the question of what sort of forum such bullying can take place in. If I abuse someone in Second Life, am I harassing them or sending a malicious communication? If I build a large advertising banner in Second Life that displays abusive messages about another user, does that count under s.5 POA? Probably not, for jurisdictional reasons if nothing else, but the question of 'where' the inside of a shared world actually is crops up increasingly often in legal discussions. It's a fascinating topic, so much so that I'd be tempted to write a novel about it - except that my friend Charlie Stross has done so already.

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