Your Thoughts: Should Legislation Change in Order to Make Cyberbullying Illegal?

Technology has rapidly progressed over the years and now variety technological advancements are pinnacle to daily routines and communication. Where there are many positives aligned with these developments, there are also a selection of negative outcomes, one of those outcomes being online abuse.

The previous year saw many reports into cyberbullying, videoed attacks and online abuse; a rough insight to how frequent cyberbullying is:

• 25 per cent of teenagers report that they have experienced repeated bullying via their mobile phone, or on the Internet.
• 52 per cent of young people report being cyberbullied.
• 11 per cent of adolescents and teens report that embarrassing or damaging photographs have been taken of them without their knowledge or consent.

The worrying case is that abuse has led to suicide attempts, severe emotional harm and has significant impact on individuals’ lives. Even more concerning is that there are no specific laws in the UK that makes cyberbullying illegal, which poses the question to whether or not existing legislation is enough; we wonder if more could be done and if legislation needs to adapt for this relatively new method of abuse?

Lawyer Monthly decided to approach a variety of legal experts on the matter to gain their opinions and thoughts on the matter; we asked our experts what more can be done to address this prevailing issue, can the ease of removing one’s identity online pose difficulties for prosecution and if cases involving suicide should be taken more seriously.

Nicholas Taylor, Head of Media at Healys

Cyberbullying has long been discussed by academics, politicians, charities and the media worldwide; however within the UK there is no legal definition or specific legislation to tackle the problem. Too often, cases have led to victims taking their own lives, yet courts can only use existing legislation via interpretation to prevent harassment or threatening behaviour online: Defamation Act 2013, Education Act 2011, Communication Act 2003 s127, Protection from Harassment Act 1997, Criminal Justice & Public Order Act 1994 s154 and the Malicious Communications Act 1988.

Clarity on what constitutes cyberbullying is urgently needed to allow for legislation to pass. However, there are concerns for creating a definition, as the advancement of new technologies is far more rapid than the speed at which laws change, meaning bullies can continue to torment unnoticed.

Comparing cyberbullying across jurisdictions, specifically in the US, it is clear the UK could be doing more. The First Lady-Elect has announced cyberbullying to be the major social issue which she hopes to address throughout her husband’s Presidential administration. This public announcement provides positive media attention which may act as a deterrent to the bullies. Furthermore, there have been continuous attempts to pass legislation, significantly after the death and suicide of Megan Meier in 2009 due to cyberbullying, nonetheless, proposals are being dismissed due to criticism of ‘over criminalisation’. However, with funding following the footsteps of US’s proposed $25 million research and education fund, more research could be conducted in the UK to address this issue moving forward.

Legislation alone will not reduce cyberbullying across the UK; preventative measures are far more effective. Social media sites such as Facebook and Instagram, and education within schools have a duty to protect children and vulnerable adults. Currently Facebook and Instagram do not specifically use the terminology ‘cyber bullying’ within their Terms of Use or Community Guidelines. Children must be at least 13 to hold accounts; this is often ignored with numerous research findings showing younger children having accounts across social media sites. Sites need to take more ownership by acknowledging and implementing the term cyberbullying within their policies.

Perhaps the best prevention method is education. Children, teachers and parents should engage in developing and understanding internet safety, signals for abuse, and communication when being abused. If today’s society sees children as young as 5 with the latest smart phone, then lessons within schools relating to internet safety and social media should commence far earlier within primary schools, during PSHE. Moreover, lack of understanding can no longer be accepted, parents and teachers need to understand the latest apps and sites in order to protect the young. Ignorance is no longer bliss. Far too often the consequences of the victims are life changing and irreversible; suicide of a young child.

A framework of legislative and non-legislative provisions is needed within the UK. Currently legislation either needs amending or new legislation passed to make this crime illegal. Education needs improving and developing to reach younger children and parents, creating greater public awareness of this crime.

Phil Gorski, Solicitor at Blacks Solicitors

Does more need to be done?

It is very difficult to answer ‘no’ to this question given that the targets of cyberbullying are primarily children.  The effects can be severe, they can shape someone’s future development and physical boundaries are irrelevant; what is more, cyberbullying, like bullying in general, can become self-perpetuating – a quarter of people who are bullied go on to bully others themselves.

What could be done to address this issue?

From a legal point of view, the temptation is to say that problems can be solved by existing laws being altered or new laws being introduced, but cyberbullying is a multifaceted phenomenon and can range from the unpleasant and transitory to persistent and extremely threatening.  Few would suggest that the former should be criminalised and the latter is likely to be covered by laws that already exist.  Raising awareness of the issue and how it can be dealt with by children, parents, carers and schools continues to be vital.

What should be done if it results in suicide?

Unfortunately, it is rare that the tragedy of a person taking their own life in these circumstances results in the identification of a single person or group in relation to whom blame can be placed or charges brought.  The causes behind such a decision are likely to be extremely complex.  The hope is that the actions of those very brave parents who publicise what happened to their child goes a long way to raising awareness and helps reduce the likelihood of other children feeling that they are in the same position.

Abigail Hudson, Barrister at St John’s Buildings

The advancement and accessibility of new technology means we have never been more connected. While more and more of us have become accustomed to the world of social media and have reaped the benefits of it, the emergence of cyberbullying and online abuse is an issue that cannot be ignored in an increasingly tech-oriented society.

A key difficulty for those trying to police the issue is that there simply isn’t the structure in place to deal with cyberbullying as a standalone offense. Many online abuse cases rely on the ‘tacking on’ of cyberbullying to other, perhaps more serious crimes and, while much of what is said online can be covered by existing legislation such as the Malicious Communications Act (1998) or the Communications Act (2003), prosecution is often reliant on fitting the charge into the parameters of other offenses, such as stalking and threatening to cause violence.

There also exists the issue of anonymity. Tracing unknown posters on Facebook, for instance, would rely on getting the company involved. Unless the abuse has resulted in some sort of horrific incident, such as suicide, the cost and time required involved is so prohibitive that police are unlikely to follow up on it. This is especially relevant if the only likely result is a slap on the wrist, which in most cases, it is.

There is, then, an argument for a tailor-made law. Specialist legislation akin to the Cyberbullying Prevention Act in America, which criminalises usage of the internet to harass someone, poses a potential answer. This too, however, is not without its drawbacks.

A cyberbullying law would have to encompass a broad range of offenses, with each case becoming the responsibility of the Crown Prosecution Service to make a judgement on what constitutes abuse and what is merely freedom of expression. That is a difficult line to draw and an even tougher one to enforce consistently. Such an approach puts the defendant at the mercy of the individual handling the case, who may rely on their own benchmark for what constitutes abuse.

Realistically, there needs to be greater investment in education. Teaching children the effects of engaging in this kind of behaviour removes the need to create two victims by escalating cases to the courts.

While the need to crack down on abusive behaviour online is likely to become increasingly prevalent as more and more of us delve into the world of social media, we must ensure that prosecution is done the right way. It is important that we don’t criminalise an entire generation of kids for doing what kids have always done.