How do we regulate relationships between adults? What are the limits to freedom of speech? Is intimacy only based on physical proximity?
This is the text of a talk delivered by Sarah Phillimore at #CCCBri on 11th June 2018
ONLINE ABUSE, INTIMIDATION AND HARASSMENT
is the law fit for purpose?
How do we regulate relationships between adults? What are the limits to freedom of speech? Is intimacy only based on physical proximity?
Sarah Phillimore June 11th 2018
1. The Serious Crime Act 2015, section 76 enacted a new criminal offence of controlling or coercive behaviour in an intimate or family relationship.
(1) A person A commits an offence if A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive and at the time of the behaviour, A and B are personally connected,
(2) the behaviour has to have a serious effect on B, and A knows or ought to know that the behaviour will have a serious effect on B.
(3) Personally connected means an ‘intimate personal relationship’ or previously in an intimate relationships or members of the same family living together.
(4) )A’s behaviour has a “serious effect” on B if—(a)it causes B to fear, on at least two occasions, that violence will be used against B, or (b)it causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities.
(5) (5)For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.
2. What I would like to consider is the question of how we – or even should we – be attempting to use the law to address similar behaviour from those with whom we are not or have not been physically intimate.
3. I think that this is a question worth asking because the rapid development of new technologies and the virus like spread of social media platforms, mean that at no other point in human history have we had the opportunity to communicate so easily with such a wide range of other humans. Can intimacy realistically be restricted to familial physical proximity or previous sexual relationships?
4. Criminalising coercive and controlling behaviour in relationships has been subject to some serious criticism from lawyers – The Secret Barrister for example commented:
The intention behind this law, I add as a rider, is noble. The genesis of many violent domestic relationships can be located in non-violent but controlling and coercive behaviours exhibited early on. If we can address the latter, we can hopefully reduce the former. So far, so unobjectionable. It’s the next step of the argument that trips up the logician – namely that the best way to address controlling or coercive relationships is to pass a shiny new law threatening a 5-year prison term for those whose relationships do not cut the mustard. Like a pissed-up Premier League chairman on transfer deadline day throwing good money after bad, Parliament convinces itself that unwanted, ingrained human behaviour can be eradicated if we just chuck another law at it and send the bobbies in. Or, in the official argot of the Guidance to the Act: “This offence sends a clear message.” As any lawyer will tell you, and as I’ve said before in relation to the utterly useless stalking legislation, creating criminal offences to “send a message” is the golden ticket to ensuring the enactment of thoroughly bad law.
5. There is a lot in that criticism with which I agree. There are many examples of bad law drafted in a hurry to appease those who said Something Must be Done. But ‘sending a message’ is not a wholly futile endeavour. The law can and does encourage society to hurry up and modify its behaviour – as we saw with laws relating to sex and race discrimination and the decriminalisation of male homosexuality.
6. Messages are not useless. So, as the criminal law now at least in theory recognises the psychological harm caused in intimate relationships by coercing and controlling behaviours, to what extent does – or should – the law protect those who do not fall within section 76(1)(b).
7. I ask the question and I am speaking to you today because I motivated by both the personal and the professional. As a lawyer I find fascinating all questions about the extent to which the law could or should be used to mould human behaviour. As a person, I have been on the sharp end of online harassment for some two years now and have had to confront some difficult truths about the availability of protection against this or any reliable mechanism to make my abusers stop.
8. The principles and issues I will now discuss relating to non-intimate coercive control are of course relevant to how people will see the effectiveness of criminalising coercive control in intimate relationships.
9. No doubt, the emotional and physical proximity of the parties in intimate or familial relationships makes the issue of emotional harm potentially much more serious and immediate – but the issues around subjective interpretations of offence, and lack of understanding or will to engage with online issues remain relevant across all contexts.
Just how well is the law dealing with really appalling behaviour from adults online?
10. My story – for over 2 years now I have been subjected to repeated and public abuse by a group of about 3 or 4 people on line. I have been called a ‘nasty cunt’ ‘mad’ ‘liar’ ‘unhinged’, seen countless publications including my full name, my Chambers, my photograph and my home address, there have been 2 complaints to the ICO countless complaints to my Chambers, at least 3 threats to report me to Children’s Services, 2 SAR. Etc.
11. How have I tried to deal with this? .I have tried every option open to me: I have complained to the regulatory body of the profession to which one of the group belongs, I have sent letters before action via solicitors, I have ignored them for months on end, and finally I reported it to the police. But still it continues.
12. I am fortunate to be a more than usually resilient individual but at times I have felt very frightened and demoralised at the constant stream of public denigration attempting to establish a digital footprint that proclaims me to be a mad liar. This goes far beyond mere words on a screen and advising me to block and ignore is of limited use when my home address is published or my child is threatened.
So what are the current legal options?
13. Three Acts are commonly relied upon to attempt to regulate online abuse.
(1) The Malicious Communications Act 1988 (MCA) section 1 outlaws indecent and grossly offensive, false, and threatening messages
(2) The Protection from Harassment Act 1997 (PHA), which prohibits fear of violence and harassment arising from a ‘course of conduct’ – 2 or more instances. In 2012 section 2A was added to create a new offence of stalking. As of 6 January 2017, the maximum sentence for an offence of harassment causing fear of violence (section 4) and stalking causing fear of violence or serious alarm/distress (section 4A) is doubled from 5 years’ imprisonment to 10 years’ imprisonment (by virtue of s.175 of the Policing and Crime Act 2007)***
(3) the most commonly used mechanism for prosecution of online abuse is the Communications Act 2003 (CA). Section 127 outlaws words or phrases that are of grossly offensive, indecent, obscene or of menacing character when sent over a public electronic communication network.
14. The Director of Public Prosecutions v. Collins  UKHL 40 (19 July 2006) sets out what the prosecution need to prove under section 127
(1) Is the communication liable to cause gross offence, to those which it relates? This is to be judged by reasonable contemporary standards looking at the particular message in its particular context
(2) That the person sending the communication must either intend it be grossly offensive or be aware that it may be taken as such.
15. The existing legal framework does not work well. The Chief Constable of Essex Police Stephen Kavanagh commented in 2016 that existing laws are ‘inadequate and fragmented’. All predate the rise of the internet and near ubiquitous use of social media platforms to communicate instantly to a potential audience of millions.
16. Finding a definition of ‘grossly offensive’ is difficult as the police must grapple with subjective interpretations of what different people will find offensive as well as the wider demands to protect freedom of speech. Under CPS guidelines prosecutors should only proceed with cases under section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than:
(1) Offensive, shocking or disturbing; or
(2) Satirical, iconoclastic or rude comment; or
(3) The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.”
17. In February 2018 the Government asked the Law Commission to report on amendments to the current law. Hopefully the report will be completed in September. Law Commissioner Professor David Ormerod QC said:
“There are laws in place to stop abuse but we’ve moved on from the age of green ink and poison pens. The digital world throws up new questions and we need to make sure that the law is robust and flexible enough to answer them.
“If we are to be safe, both on and off line, the criminal law must offer appropriate protection in both spaces.
“By studying the law and identifying any problems we can give government the full picture as it works to make the UK the safest place to be online.”
18. The Government also published at the end of May a strategy report about internet safety which has the ambitious aim to look at how we can ensure Britain is the safest place in the world to be online. The Strategy considers the responsibilities of companies to their users, the use of technical solutions to prevent online harms and government’s role in supporting users. The consultation covered various aspects of online safety including:
(1) the introduction of a social media code of practice, transparency reporting and a social media levy,
(2) technological solutions to online harms,
(3) developing children’s digital literacy,
(4) support for parents and carers,
(5) adults’ experience of online abuse, and
(6) young people’s use of online dating websites/ applications.
19. The public consultation revealed
(1) Six in ten people said they had witnessed inappropriate or harmful content online
(2) Four in ten people said they had experienced online abuse
(3) Four in ten people said concerns they put to social media companies were not taken seriously
20. I am glad that policy makers are talking about this but in my view the problems we face go beyond individual laws or policies that are less effective than we would like.
There are additional complicating factors:
(1) How to ensure that social media companies who operate outside the jurisdiction of our domestic law, take effective action to prevent individuals from abusing their platforms
(2) the pressing need to protect freedom of speech and expression as one of our most fundamental and important freedoms;
(3) the convenient way to dismiss online abuse as not ‘really real’ or trivial when compared with other more imminent threats of physical harm.
Behaviour of the platforms
21. This point is beyond my knowledge or expertise to make any useful comment upon. I remain sceptical that there is really anything that can be done to make Britain ‘the safest place in the world to be on line’ other than adopting Chinese levels of censorship and limiting access. It is after all the World Wide Web.
22. However, I have noted recent reports of further efforts being made by for example Twitter, to improve its algorithms to make sure abusive accounts do not flourish. I hope we will continue to see social media platforms continue to take greater responsibility for the content they allow to be published.
23. Their historic unwillingness to do so is to a large extent tied in with consideration of issues around freedom of speech.
Freedom of speech
24. See Article 10 of the ECHR. This protects the right to communicate and express yourself in any medium, including in words, pictures and actions. But it can be limited; any limitation must:
(1) be lawful
(2) necessary and proportionate
(3) and for one or more of the following aims:
(a) national security, territorial integrity or public safety
(b) preventing disorder or crime
(c) protecting health or morals
(d) protecting other people’s reputation or rights
(e) preventing the disclosure of information received in confidence
(f) maintaining the authority and impartiality of the judiciary.
25. A useful recent example of the tensions around freedom of speech has been the case of the Nazi Pug. A significant number of commentators, including a number of lawyers, have been very critical of the conviction in Scotland of Markus Meechan, aka Count Dankula, under section 127 of the Communications Act. He published on line a video of his girlfriend’s pug giving a Nazi salute in response to the words ‘gas the Jews.’ Mr Meechan’s defence was that the video had been made solely to annoy his girlfriend who was excessively fond of her pug and lauded its ‘cuteness’.
26. This conviction did surprise and worry me. Mr Meechan wasn’t aiming his YouTube videos against individual Jewish people suggesting they be gassed. Although many would find his video offensive and upsetting, it is clear that many others found it hilarious. Adam Wagner, a Jewish lawyer and founder of Rights Info was clear that he found the phrase ‘gas the Jews’ extremely offensive but nonetheless he could not support the conviction of Mr Meechan:
….strikes at the heart of the right to free speech. In all illiberal societies, free speech is the first thing to go. Because the dominant ideology or leader must be protected from ridicule and challenge. That’s why comedians don’t do well in dictatorships
27. I don’t have time here to discuss in detail all the very interesting discussions around freedom of speech and how and when it should be limited, but I do commend Timothy Garton Ash’s book ‘Free Speech – Ten principles for a Connected World’ He poses two essential questions:
(1) How free should speech be
(2) How should free speech be
28. He recognises the limits of the law to contain or control offensive speech and makes an important distinction between ‘hate’ speech and ‘dangerous’ speech. The former – such as ‘gas the Jews’ is better dealt with by discussion and education – engage with the speaker. Why do you think its ok to say that? What impact do you want to have with those words? Whereas ‘dangerous speech’ – which more directly threatens the safety of an individual or group should be constrained by the criminal law.
29. The very proper weight and protection given to freedom of speech explains some of the failure of state agencies to take action against individuals who use social media platforms to threaten, abuse or harass.
“Its not really real”
30. But I think there is another important reason to explain the law’s relative inertia and ineffectiveness. It appears to be the view of many that what happens online is not ‘really real’ and the solution to language you find offensive or upsetting is to simply block and ignore.
31. It is my very firm view that this dismissal of the online world as having little consequence in the ’real world’ is simply naïve and liable to wrongly diminish the potential for serious psychological harm arising from on line harassment. Of course, ‘words on a screen’ are not the same as being physically assaulted or even killed. But nonetheless the harm caused by ‘words on a screen’ cannot always be dismissed as ‘trivial’ or easy to avoid.
32. From my own experiences, I was shocked and surprised at just how upsetting I initially found repeated and hateful attacks on my character and my appearance. After two years now I am somewhat hardened to it all but I am not at all surprised to hear that people can suffer greatly from all of this, to the extent that they contemplate suicide.
33. Further, ‘Words on a screen’ can have extensive consequences beyond the hurt feelings of any individual. Many of those who abuse and harass on line also appear to take their abuse off line – to your employer, your friends and family or they encourages others to join in with ridicule or abuse.
34. For example – my personal experiences have also had a significant cost to the public purse – the ringleader of the group harassing me was given a warning notice by the police in March 2017 and challenged that unsuccessfully via judicial review in a two day hearing in the High Court. The cost to the Metropolitan police of that legal action was £12,000 and a police officer off duty for two days.
35. Examples of where on line abuse spills out in to the ’real world’ are legion. I read Janice Turner in The Times on May 12th talking about the phenomenon of ‘drill rap’ where teenage gang members post videos on YouTube insulting and goading rival gangs. This leads to the shooting and stabbing of young men on London streets as reprisal for their participation in such on line provocation.
36. Lily Allen spoke in 2016 of her seven year ordeal that began with a tweet from Alex Gray and ended up with him breaking into her home; Allen spoke of being treated by the police as a ‘nuisance’ when she complained.
37. The way we talk to one and express our ideas really matters. To say that abuse and harassment communicated ‘online’ is trivial when compared to the immediacy of a physical assault is to miss some of the point. Online abuse can be very immediate and very frightening, if we are the individuals identified and targeted. And it can clearly escalate into the immediate and the physical if left unchecked.
38. We are seeing played out all around us the consequences of the gradual coarsening of our public debate. Freedom of speech should not be hijacked by damaged or dangerous people to justify their pleasure in hurting others.
39. Of course the police have operational priorities and of course I accept the serious cuts to their resources mean that every day they have to make difficult and immediate decisions about what crimes to prioritise. Physical assaults will continue to take precedence over an internet threat and I agree that this will usually be the right decision when hard choices have to be made. But we can’t let the tail wag the dog. If online abuse is not tackled effectively, lets be honest about the reasons why – not pretend it is because it isn’t dangerous.
40. The Brandenburg test has been widely adopted as assisting in making decisions about when inflammatory speech should be prosecuted. It derives from the American case of Brandenburg v. Ohio in 1969 where the US Supreme Court reversed the conviction of a Ku Kux Klan leader for making threatening and inflammatory remarks about white supremacy. The Ohio law was found to violate the First Amendment to the Constitution as it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action. The Government could only punish inflammatory speech if that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
41. Therefore, the lawless action promoted by the inflammatory speech must be:
42. I don’t quarrel with that. but I do wonder whether our current laws regarding on line abuse are suffering by too much reliance on those historic laws which dealt with situations where communication was much more restricted, both in time and space and where harm was largely seen in terms of physical violence.
43. I think the time has come for us to revisit what could be encompassed by the word ‘imminent’ and whether or not this should be seen as going beyond physical proximity. Our smart phones bring abuse right to us, it is literally in our hands. Abusers can also use the internet to reveal and publish person details about us. The psychological impact of such abuse has the potential to be enormously harmful and certainly bears comparison with an actual physical assault.
44. I would like to see the law looking in particular at conduct that is persistent and targeted at individuals and when online abuse is linked to efforts to draw in people’s friends or employers into targeted harassment.
45. I will be very interested to hear what the Law Commission propose to bring about a more coherent and consistent approach to those people who seem to have little other pleasure or interest in life than causing harm and upset to others. At the moment it seems to me that the criminal law is only alert to recognise the harm done to me from persistently toxic adult behaviour if I am being abused by a family member or have a sexual relationship with my abuser. And that cannot be right.
11th June 2018