Regulating Harassment: Is the Law Fit for the Social Networking Age?
| Published date | 01 June 2009 |
| Author | Nicola Haralambous,Neal Geach |
| Date | 01 June 2009 |
| DOI | 10.1350/jcla.2009.73.3.571 |
| Subject Matter | Article |
Regulating Harassment: Is the
Law Fit for the Social
Networking Age?
Neal Geach*and Nicola Haralambous†
Abstract The use of social networking websites, such as Facebook, has
escalated in recent years. A consequence of this has been that these
communication mediums are being increasingly used to bully and harass
other users. This article explores the extent to which existing legislation
provides sufficient protection against such activity. There is currently no
legislation dealing specifically with online harassment. Although existing
legislation, such as the Protection from Harassment Act 1997, can be
interpreted so as to cover issues of harassment over the Internet, such
legislation was not drafted with the Internet in mind. In light of this, the
extent to which this Act can offer effective protection against online
harassment can be questioned. While other statutory provisions, such as
s. 127 of the Communications Act 2003 and s. 1(1) of the Malicious
Communications Act 1988, do expressly take account of modern elec-
tronic mediums, both have limitations. This article evaluates the rationale
behind criminalising various forms of online conduct and argues that the
current overall legislative framework is inaccessible, uncertain and thus
inadequate to encompass activities in today’s evolving age of online social
networking. Consequently, the time has come for reform to ensure that
the law balances the need to protect individual well-being with the need
to safeguard against fictitious and vindictive allegations.
Keywords Harassment; Online; Cyberstalking; Facebook; Social
networking
Introduction
The recent escalation in the use of the Internet and, in particular, the use
of social networking websites, have opened the door for harassing and
bullying conduct to occur online. To date, much debate has centred on
the nature of the Internet community and the precise differences be-
tween online and offline harassment. As the existing harassment legis-
lation was not drafted with the Internet in mind, it could be argued that
it is insufficient to regulate online harassment. However, such claims
ignore the fact that existing legislation and in particular, the Protection
from Harassment Act 1997 (hereafter ‘PHA 1997’), is actually incredibly
wide and on a literal interpretation does cover instances of harassment
* LLB, LLM, Lecturer in Law, University of Hertfordshire; e-mail
N.Geach@herts.ac.uk.
† LLB, LLM, Barrister, Lecturer in Law, University of Hertfordshire; e-mail
N.Haralambous@herts.ac.uk.
241The Journal of Criminal Law (2009) 73 JCL 241–257
doi:1350/jcla.2009.73.3.571
via the Internet. In spite of its wide scope and apparent obvious applic-
ability for an online harassment prosecution, statistics1demonstrate that
there has been a decline in proceedings under the main harassment
offence within the PHA 1997, although conviction rates have continued
to rise. Other existing harassment legislation has been amended in
recent years in order to bring the law in line with modern methods of
communication, and this may be why proceedings are decreasing under
the PHA 1997. Following the enactment of the PHA 1997 there were no
proceedings brought using the Malicious Communications Act 1988
(hereafter ‘MCA 1988’). However, after amendment by the Police and
Criminal Justice Act 2001, the number of proceedings under the MCA
1988 for the same period has, by contrast, increased year on year, with
an average conviction rate of 62 per cent.2This suggests that the PHA
1997 is no longer favoured for prosecuting harassing conduct which
takes place online; this might itself indicate a lack of understanding of
the PHA 1997 on the part of prosecutors, who may think that the PHA
1997 is inadequate for online harassment. Despite the MCA 1988,
however, calls remain for the UK to create a specific offence of online
harassment. This article will explore the scope and workability of the
current UK legislation. It will be argued that the current legislative
framework, while proving workable in relation to harassment in this
new environment, is, in fact, excessively wide and, as a result, lacks
certainty and accessibility and thus is not appropriate in relation to the
social networking age.
The problem of ‘online harassment’
Put simply, ‘online harassment’ is harassment which occurs via the
Internet. This is a broad term which might encompass a wide range of
activities including sending abusive, threatening or obscene e-mails or
messages through mediums such as instant messaging or social net-
working websites; sending ‘friend requests’ or ‘poking’ other users on
such websites, for example Facebook; stalking other users’ characters on
virtual life websites such as Second Life; impersonating another person
online by creating a fake profile for them on a social networking website;
subscribing a person to mailing lists; ‘spamming’ or sending viruses via
e-mail. The number of potential ways in which a person might suffer
harassment has increased as the use of the Internet and more particu-
larly, social networking websites, has escalated. For instance, in July
2007, Graham Mallaghan, a postgraduate student who also worked as a
librarian at the University of Kent, was targeted by other Facebook users
when they created a ‘group’ about him called ‘for those who hate the
little fat library man’.3Over 350 people joined the group on which
1Hansard, House of Commons, Written Answers for 30 June 2008: Column 685W,
available at http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080630/text/
80630w0031.htm#08070177000028, accessed 16 April 2009.
2Hansard, House of Commons, Written Answers for 26 March 2008: Column 240W,
available at http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080326/text/
80326w0022.htm#080326122000022, accessed 16 April 2009.
3‘“Fat library man” bullied online’, BBC News Report, 23 July 2007, available at
http://news.bbc.co.uk/1/hi/england/kent/6912409.stm, accessed on 16 April 2009.
The Journal of Criminal Law
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