Cyber Harassment and Cyber Stalking
| Author | Matthew Richardson |
| Pages | 183-199 |
Chapter 6
Cyber Harassment and Cyber Stalking
6.1 OFFENCES AGAINST THE PERSON
Although it may sound slightly odd to talk about cyber crime in the context of offences against the person, the concept of hurting another person using a computer is a now genuine possibility. There is long-standing authority that an ‘assault’ can be committed by words or gestures alone and the judgment in R v Ireland; R v Burstow [1998] AC 147 meant that, where such words or gestures caused a diagnosable psychiatric condition, then they can be found to have caused grievous or actual bodily harm. If a person, for instance, sends malicious messages over the internet to another person thereby causing that person a psychiatric illness, the sender may theoretically be liable for an offence against the person, and not merely a communications offence or a computer misuse offence. Of course, there is also the possibility that computers can be used to cause physical (as opposed to psychological) harm – for example, if a person uses a computer to ‘hack’ into a life support system and turn it off, or if a person hacks an air traffic control system and causes an aeroplane to crash. However, such extreme examples for the moment remain within the realms of fiction. Notwithstanding the potential liability for committing assaults using a computer, it is much more likely that the targeting of another person using a computer will fall under a different type of offending against the person in the form of harassment or stalking.
6.2 SECTIONS 2 AND 2A OF THE PROTECTION FROM HARASSMENT ACT 1997 – HARASSMENT AND STALKING
Harassment or stalking very often involves communications between parties and, increasingly so, involves the use of communications via electronic means such as email and other social media. Campaigns of harassment or stalking can now be
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carried out entirely by use of computers or telecommunications systems. However, even though such ‘cyber harassment’ or ‘cyber stalking’ may utilise more modern forms of technology, the basic legal principles remain the same.
The Protection from Harassment Act 1997 (PHA 1997) was enacted in response to a 1996 Home Office consultation paper entitled Stalking – The Solutions.
The problem was that harassing behaviour fell between two stools – the civil law of private nuisance on the one side and the criminal law of offences against the person on the other side. However, victims of harassing behaviour had the right to sue for a remedy in the tort of private nuisance (such as a civil injunction) effectively removed by the case of Hunter v Canary Wharf [1997] AC 655, in which the House of Lords expressly overruled the decision of the Court of Appeal (Civil Division) in Khorasandjian v Bush [1993] QB 727. In Khorasandjian v Bush, the Court of Appeal had allowed a plaintiff to sue in the tort of private nuisance for harassing phone calls received at her parents’ home. In Hunter v Canary Wharf, it was decided that only those with exclusive rights to property (i.e. not licencees or visitors, etc.) could sue in private nuisance. On the criminal side, the House of Lords gave some assistance to victims of harassment in the case of R v Ireland; R v Burstow [1998] AC 147, in which their Lordships ruled that words or gestures alone (or, indeed, silent phone calls), could substantiate an assault and that harassing behaviour could cause a victim actual bodily harm or grievous bodily harm through psychological damage. However, the existing law still did not seem adequately to address those cases where the campaign of harassment was far more extensive and deleterious to the victim than simple assault but not so serious as to pass the extremely high threshold of causing actual and diagnosable psychological damage.
The PHA 1997 is interesting to the extent that it maintains the recognition that harassment constitutes both a civil and a criminal wrong. Section 1 creates a general prohibition on harassing behaviour and creates primarily a criminal offence (section 2) and secondarily a statutory tort
Following a further Home Office consultation on stalking (November 2011)
The general prohibition of harassment is provided for under section 1 of the PHA 1997 as follows:
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of another.
(1A) A person must not pursue a course of conduct—
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
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(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.
(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.
Section 2 of the PHA 1997, which creates the criminal offence of harassment, provides the following:
(1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
The offence of stalking was created by the addition of section 2A of the PHA 1997, which provides the following:
(1) A person is guilty of an offence if—
(a) the person pursues a course of conduct in breach of section 1(1), and
(b) the course of conduct amounts to stalking.
(2) For the purposes of subsection (1)(b) (and section 4A(1)(a)) a person’s course of conduct amounts to stalking of another person if—
(a) it amounts to harassment of that person,
(b) the acts or omissions involved are ones associated with stalking, and
(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.
(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking—
(a) following...
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