On 20 June 2014 Rhory Robertson, Collyer Bristow partner and head of the Cyber Investigation Unit (CIU), addressed some 100 or so personal injury (PI) lawyers at the APIL child and adult abuse conference, on the subject of cyber-bullying.
Here are some of the key points from his speech:
Cyber-bullying in the news
Scarcely a day goes by without there being a report of someone, somewhere being cyber bullied. Incidences are not limited to celebrities but can, and do, affect anyone and everyone. The latest reported incident concerned a pregnant woman who was being harassed right up to and during the birth of her child. This month Robert Jeffery admitted one count of stalking involving fear of violence and was jailed for three years. The judge said, “you showed vindictive cruelty to Sarah Sutton and that cruelty had devastating consequences...For six months she went through psychological hell”.
How big is the problem?
News stories would suggest the problem is large, but finding official statistics on cyberstalking is difficult. Government sources suggest a ‘global epidemic’.
Youth cyber-bullying is increasingly prevalent in schools, colleges and the workplace. Statistics from Ditch the Label’s Annual Cyberbullying Survey 2013 say 7 out of 10 young people have been victims of cyber-bullying.
In May 2014 Sky News reported the results of an FOI request. They asked police forces how many investigations they had launched in the last three years under Section 127 of the 2003 Communications Act, that is the sending of menacing or offensive messages. The results were alarming. Over the three years, 1,932 children were investigated and 1,203 were either charged with a criminal offence, fined, cautioned or warned verbally.
Government and parents must tackle this issue and children must be made aware of the consequences of being both the cyber-bullied and the cyber-bully.
What is cyber-bullying?
Threatening behaviour or unwanted advances directed at another using the Internet and other forms of online and computer communications.
Cyber-bullies are also known as ‘trolls’. They sow discord on the Internet by starting arguments or upsetting people, by posting inflammatory, extraneous, or off-topic messages in online communities.
No one piece of legislation covers ‘cyber-bullying’ so cases use a combination of laws depending on the facts. However, statutes like the Communications Act 2003 do not make provision for civil claims. For this, victims usually need to make use of the Protection from Harassment Act 1997, as amended.
The Defamation Act 2013 reformed issues around freedom of expression and protection of reputation. It is outside the scope of this report, but to bring a libel action, the victim has to show serious harm as a consequence of the defamatory statement. Serious harm can include psychological damage. Psychological damage is an injury for which compensation can be sought. So, in some cases, a victim can choose either or both a claim under the Defamation Act and for personal injury.
Advantages and disadvantages of the legal options
A victim has to report to the Police.
- Disadvantages include variable police responses and a loss of control over the proceedings plus limited damages.
- Advantages include not having to pay costs, obtaining a restraining order against the person doing the bullying, getting the offensive material removed. If a custodial sentence is achieved, it sends a message to other cyber-bullies.
- Disadvantages include having to pay for legal assistance and any damages will be modest.
- Advantages include retaining control and obtaining relevant injunction against the person doing the bullying, as well as modest damages.
A victim of cyberstalking or bullying can apply to the courts for an immediate injunction, restraining the perpetrator from continuing the offensive conduct online.
To get a harassment claim off the ground there has to be a course of conduct i.e. more than one incident which is likely to alarm or cause distress to the victim. There is no requirement of a physical threat or risk of immediate physical harm, which means a civil injunction can be used to combat a wide variety of intrusive activities carried out online. It is a powerful tool since a breach is a criminal offence, carrying a maximum of 5 years imprisonment and/or a fine.
Damages under section 7(1) are awarded for anxiety and/or distress. The victim needs to show that the conduct was oppressive and unacceptable but does not have to prove actual psychological harm.
This statute has been interpreted widely by the courts. The claim need not always be against the bully. An employer can be vicariously liable for harassment committed by an employee in the course of employment. (Majrowski v Guy's and St Thomas' NHS Trust  UKHL 34.)
Schools may find themselves being vicariously liable for postings by students, whether it happens on a school PC, or from home on mobile devices. The best defence is similar to the one found in the Bribery Act; demonstrate that adequate steps have been taken to educate everyone.
Behaviour policies and e-safety teaching applies in all schools. From September, all school children will be taught how to use technology safely, respectfully and securely. The Child Exploitation and Online Protection Centre/National Crime Agency has issued advice on sexting and has produced material for teachers.
In March 2014 the government updated advice to schools on bullying and cyber-bullying, setting out their legal duties, and the powers and the steps they can take to tackle it effectively. The Online Safety Bill, with its emphasis on parental responsibility, will also assist schools in cases of cyber bullying – and rightly so. Parents should be involved in helping their children understand risk.
So far there have been no cases of damages for personal injury or a consequence of online bullying, despite the large number of reports to the police and substantial evidence of mental illness, but this will change before too long. Technology is making it increasingly easy to cyber- bully. The law will keep pace with the technology and remedies are there for the victims who suffer psychological harm.
PI lawyers should think it worthwhile to be in the vanguard of what could be an avalanche of claims against those who cyberbully and cause illness, and interestingly whether they have claims against social media sites using the vicarious liability principle. However, there may be difficulties. Keep in mind social media sites are often based outside the UK: Twitter in the US, Facebook in the US and the Republic of Ireland and Ask.FM in Latvia.