Cyberbullying and the law
Although bullying is not a specific criminal offence in UK law, there are criminal laws that can apply in terms of harassment or threatening behaviour. For example - and particularly pertinent for cyberbullying - threatening and menacing communications.
In fact, some cyberbullying activities could be criminal offences under a range of different laws, including the Protection from Harassment Act 1997 which has both criminal and civil provision, the Malicious Communications Act 1988, section 127 of the Communications Act 2003 and the Public Order Act 1986. The age of criminal responsibility in the UK starts at 10.
Protection from Harassment Act 1997: This Act is relevant for incidents that have happened repeatedly (i.e. on more that two occasions). Section 1 prohibits behaviour amounting to harassment of another. Section 2 provides a criminal offence and section 3 provides a civil remedy for breach of the prohibition on harassment in section 1. Section 4 provides a more serious offence of someone causing another person to fear, on at least two occasions, that violence will be used against them5. A civil court may grant an injunction to restrain a person from conduct which amounts to harassment and, following conviction of an offence under section 2 or 4, restraining orders are available to protect the victim of the offence.
Communications Act 2003: Section 127 covers all forms of public communications, and subsection (1) defines an offence of sending a 'grossly offensive…obscene, indecent or menacing' communication6. Subsection (2) defines a separate offence where for the purposes of causing annoyance, inconvenience or needless anxiety, a person sends a message which that person knows to be false (or causes it to be sent) or persistently makes use of a public communications system.
Malicious Communications Act 1988: Section 1 makes it an offence to send an indecent, grossly offensive or threatening letter, electronic communication or other article to another person with the intention that it should cause them distress or anxiety.
Public Order Act 1986: Section 5 makes it an offence to, with the intent to cause harassment, alarm and distress, use threatening, abusive or insulting words, behaviour, writing, signs or other visual representation within the sight or hearing of a person likely to be caused harassment, alarm or distress. This offence may apply where a mobile phone is used as a camera or video rather than where speech writing or images are transmitted.
Obscene Publications Act 1959: It is an offence under this Act to publish an obscene article. Publishing includes circulating, showing, playing or projecting the article or transmitting that data, for example over a school intranet. An obscene article is one whose effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it.
When cyberbullying takes the form of hacking into someone else's account, then other criminal laws will come into play, such as the Computer Misuse Act 1990, in addition to civil laws on confidentiality and privacy.
An anti-social behaviour order (ASBO) under the Crime and Disorder Act 1998 could be used for cyberbullying. An ASBO is a civil order which prohibits an individual from engaging in specific anti-social acts. An ASBO can be made against any person, aged 10 years or over, where there is evidence that their behaviour caused, or is likely to cause, harassment, alarm or distress to others and where an order is needed to protect person(s) from further anti-social acts. Whether a course of conduct is anti-social in nature is primarily measured by the consequences and the effect it has, or is likely to have, on a member or members of the community within which it is taking place.
An ASBO can be used in conjunction with other measures as part of a tiered approach to tackling anti-social behaviour. Prohibitions should be precise, targeted at the specific behaviour complained of, and proportionate to the legitimate aim of protecting the community from further abuse. ASBOs can be extremely effective in preventing further escalation into criminal behaviour. Breach of an Anti-Social Behaviour Order is a criminal offence and criminal penalties apply.
Defamation: Defamation is a civil "common law" tort in respect of which the Defamation Acts of 1952 and 1996 provide certain defences. It applies to any published material that damages the reputation of an individual or an organisation, and it includes material published on the internet. A civil action for defamation can be brought by an individual or a company, but not by a public authority. It is up to the claimant to prove that the material is defamatory. However, the claimant does not have to prove that the material is false - the burden of proof on that point lies with the author/publisher, who has to prove that what they have written is true.
Where defamatory material is posted on a website the person affected can inform the host of its contents and ask the host to remove it. Once the host knows that the material is there and that it may be defamatory, it can no longer rely on the defence of innocent dissemination in the Defamation Act 1996. This means that the person affected could (if the material has been published in the jurisdiction, i.e. in England and Wales) obtain a court order (an injunction) to require removal of the material, and could sue either the host or the person who posted the material for defamation.
from: Cyberbullying, DCSF, 2007
Last Modified:
08/02/2008 14:00:51
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