Concerns about harassment, bullying and exploitation online, which have bubbled under the surface for years, are currently enjoying a high level of prominence. This has been reflected in our clients’ experience: the rate of enquiries in relation to such issues have increased by several hundred percent over the past twelve months, to the point where we are now fielding several such queries a week.
The wide-ranging nature of these problems means that there are often great differences in the objectives of those who contact us. Threats of violence have almost always been reported to the police before they come to us and the same applies to any communication which suggests that the writer has information about the victim’s home address or might have followed them home. In such cases, our client’s primary concern is to identify the culprit and by doing so to give them back the security and peace of mind which such threats deprive them of.
By contrast, those who have been victimised, even very cruelly, in an exclusively online space are surprisingly reluctant to involve the police. They are often much more interested in self-help remedies designed to make their online experience more pleasant, rather than necessarily to identify or punish the person they are complaining about. There is also a sense that the police will not take their concerns seriously, although with so few attempting to make a report it is difficult to gauge how realistic that concern is.
Consistently with the different objectives of these client groups, the range of available remedies also varies depending on the precise behaviour complained of. There are various statutes which can be applicable to online harassment, including the Malicious Communications Act 1988 and the Communications Act 2003 which can apply to communications (including posting on Twitter or social networks) which are grossly offensive, indecent or threatening; the Protection from Harassment Act 1997 which requires a course of conduct which the perpetrator knows (or ought to know) would amount to harassment; and the Public Order Act 1986 in relation to behaviour which is calculated to cause alarm, harassment or distress. The police can investigate allegations which seem to them to fall within one of these categories, including collecting evidence and speaking to the alleged perpetrators. How far they will proceed with this may ultimately depend in part on a CPS view on whether a prosecution is proportionate or desirable in light of the DPP’s guidance on prosecutions for online behaviour.
Those guidelines were brought in at the beginning of 2013 because, generally speaking, it was recognised that the CPS was having difficult in setting an appropriate threshold for prosecutions (see more detailed comment here). The guidelines, prepared after wide-ranging consultation, represent a broadly sensible approach which is flexible enough to accommodate unexpected circumstances while setting thresholds below which action will not be taken. It remains to be seen how appropriately the CPS and the Police will exercise the discretion inherent in those guidelines in deciding which cases merit further investigation and which do not.
For more serious matters, we may have to consider formal proceedings. Orders can be obtained to require online service providers to disclose details that might assist in identifying users, such as the virtual addresses of the machines used to go online, or other activity on their profile which might betray a real-world connection. From there, we can prepare and issue applications for injunctions to restrain behaviour, or bring proceedings for damages for the harm that the behaviour has done. One of the advantages we have in this regard is that we are able to undertake High Court advocacy in-house and therefore we can often respond more quickly than another firm which would have to take instructions and then brief an external barrister.
On other occasions, the concern is not about identifying the perpetrator, but in preventing or limiting the harm that such publications can do to the victim’s reputation. We tend to take a pragmatic approach to reputational issues. The harm that can be done to a person’s reputation by this sort of behaviour cannot be overstated, but it is not always the right approach to launch into proceedings. Sometimes, this simply gives the harmful material a fresh airing when the matter comes to trial. In those cases we will seek to use the legal weapons available to us to obtain a quick and confidential resolution in our client’s favour, which ensures that the fundamental objective (of removing the harmful material) is achieved without delay. On other occasions, we will put our client in touch with our contacts in the reputation management and PR fields, who are able to work with them to put our a positive message and dilute or distract from any negative material which exists, but which it is not cost-effective to seek to get removed.