In a world of constant technological development, cyberbullying is an increasingly prominent issue. The Conservative, Labour and Liberal Democrat manifestos in the recent general election discussed the need to take further measures to combat cyberbullying. Similarly, the media coverage of incidents where harassment has led a victim to take their own life has stirred attention, with calls for measures to combat cyberbullying. Despite this, there is no legal definition of cyberbullying in the UK, and cases are dealt with using legislation that pre-dates the emergence of social media platforms. As an area that is under pressure to be reviewed, specific legislation for tackling online abuse should be enacted to reflect the role that the internet plays in cases of bullying.
‘Cyberbullying’ is defined by the UK’s Parliamentary Communications Select Committee as “bullying conducted using social media or other electronic means”.[1] In the United Kingdom, there is currently no legal definition for cyberbullying. Instead, existing laws are used to prosecute cyberbullying cases where it is seen fit. These include the Protection from Harassment Act 1997,[2] the Malicious Communications Act 1988,[3] Communications Act 2003,[4] Defamation Act 2003,[5] and the Criminal Justice and Public Order Act 1994.[6] The Crown Prosecution Service has guidelines for when these Acts can be used to prosecute. For example, prosecutors are advised that for a prosecution under Section 1 of the Malicious Communications Act 1998 and section 127 of the Communications Act 2003:
“A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law.”[7]
According to the CPS, what these offences prohibit is communications that are “grossly offensive”. When looking at the two Acts, there is a clear overlap between them in that they seek to criminalise threatening, menacing or obscene behaviour sent by online means:
Section 127 of the Communications Act 2003: Improper use of public electronic communications network
(1) 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.
(2) 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.
Section 1 of Malicious Communications Act: Offence of sending letters etc. with intent to cause distress or anxiety.
(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 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.
A problem arises because even though these Acts are similar, they carry different penalties. If prosecuted under Section 1 of Malicious Communications Act 1998, the maximum sentence for conviction on indictment is imprisonment for a term not exceeding two years or a fine (or both), or on summary conviction is imprisonment for a term not exceeding 12 months or a fine (or both).
By contrast, under the Communications Act 2003, a person guilty of an offence under Section 127 is liable to imprisonment for a term not exceeding six months or a fine (or both). There is clearly great overlap between these two provisions, coupled with a disparity in maximum sentences and a lack of guidance from the CPS about when each Act should be used. For example, in DPP v Connolly,[8] it was held that the terms of section 1 of the Malicious Communications Act 1998 of “indecent and grossly offensive” are to be considered as ordinary English words. In DPP v Collins,[9] it was said that the defendant must intend or be aware that the message is grossly offensive, indecent or obscene. There is no specific guidance from the CPS as to what constitutes “grossly offensive”, just that it must be more than something said in bad taste, is controversial or unpopular. This makes the current system arbitrary and inconsistent. The punishments may vary depending on which Act the prosecution tries to prosecute the defendant under, and if discretion is used as to what is considered “grossly offensive”, then some cyberbullying cases may fall through the net of prosecution. These inconsistencies underscore the need for new legislation.
Lord Best, the Chairman of the Parliamentary Communications Committee, argued that “legislation as it currently exists is generally fit for purpose and doing the job, even though it was drafted before social media was first invented”.[1]0 In making this statement, Lord Best highlights an inherent flaw in the existing legislation. In pre-dating the existence of sites such as Facebook (2004) and Twitter (2006), one of the key issues with the use of these laws to deal with cyberbullying is that they were created with the intention of tackling other offences, hence the confused and overlapping provisions within them.
Further, it has been argued that cyberbullying is merely the commission of an act which is a crime under existing law through a different medium, and therefore no legislative intervention is warranted. Parliament recognised this in noting that “social media is simply a platform for human beings to misbehave”.[11] However, as noted by Fenwick, these laws may fail to consider free expression concerns; the failure of the current laws to balance ECHR protections with the need to prosecute may mean that some behaviours attract ECHR protection whilst also having the potential to constitute cyberbullying. Article 10 of the European Convention of Human Rights provides the right to freedom of expression and information.[12] This poses a dilemma when considering the issue of cyberbullying and legislative prevention, as what is posted online could potentially fall within the realms of being a statement of opinion, rather than harassment. Furthermore, guidelines provided by the ECHR require prosecutors to take context into account:
“Prosecutors should have regard to the fact that context in which interactive social media dialogue takes place is quite different from the context in which other communications take place. Access is ubiquitous and instantaneous. Banter, jokes and offensive comments are commonplace and often spontaneous. Communications intended for a few may reach millions.”[13]
It would appear, therefore, that there is a potential grey area within the prosecution of such offences. Some instances of cyberbullying may be justified as being “banter” or a “joke”, yet can have devastating consequences for the individual. The notion that “communications intended for a few may reach millions” also seems to displace responsibility for the effect that these communications may have. If a person were to post an embarrassing video about someone that became viral, does this mean they should avoid responsibility because they did not expect it to become as popular as it did? Is this conduct considered a “joke”, or is it cyberbullying? The distinction made in these guidelines between interactions in person and interactions made online highlights a definite grey area in criminal prosecution of online activities such as cyberbullying. Having specific legislation to govern online interaction, which properly spell out what constitutes harassment or causing offence through these platforms, is thus necessary.
On October 11th, it was announced that the government are proposing a voluntary levy on social media firms and other websites as part of an internet safety green paper.[14] It was said that the levy would target issues such as cyberbullying and online abuse, having a social media code of practice to help combat online bullying, with annual reports to track progress on these issues. Because these measures are voluntary, however, it is uncertain how effective they are truly capable of being. The ministers suggested that if companies refused to participate, then a mandatory approach would be considered, but no plans were given as to how this could happen. The government’s reluctance to force companies to follow these rules is based on arguments that non-legislative routes are “quicker, more effective” and obtain “a better result for everybody”.[15]
However, if such efforts prove unable to persuade companies to adopt their methods, the issue at hand will remain unresolved. Rather than trying to avoid legislation, a legal definition of cyberbullying should be adopted as in other jurisdictions, to make it clear to people what constitutes cyberbullying. Although preventative measures such as self-regulation by media-providers can be effective, this should be supported by changes to legislation. The law as it currently stands fails to capture the nature of cyberbullying, with its lack of legal definition leaving the area ambiguous.
The law needs to embrace the fact that there have been massive developments in technology in the past two decades; legislation should be adapted or enacted to reflect such changes. Failing to do so leaves victims vulnerable if their claim does not fall within the current legislation used. Criminal prosecution on a wider scale due to revision of harassment laws and enactment of new legislation may act as a deterrent to those who instigate online abuse. Social prevention methods, such as more education about what cyberbullying is, would supplement such legislation; having revised laws would hopefully clarify and raise awareness of cyberbullying as an issue. Laws predating the rapid changes in technology are not sufficient. At the minimum, a legal definition of cyberbullying at the very least is necessary to clarify what is recognised in law as constituting it. Parliament should then look to enacting new legislation to combat this issue: one which can have devastating effects on people’s lives.
