Law 2:2 - Example Order

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Critically discuss, considering existing criminal legislation and any alternative remedies including non-criminal regulation of online behaviour.

The 21st century has been redeemed the digital era by many theorists, and in particular theorist Mitchell (2004) believes that private images and personal data can be posted online to global platforms and shared instantaneously between innumerable people [1]. This can lead to the need for reform when discussing criminal legislation which reflects offences which will come through rapid growth of unacceptable online behaviour. In reflection of Mitchell’s theory, according to Office for National Statistics in Great Britain, 22 million households (84%) had Internet access in 2014, up from 57% in 2006 [2]. As there are more people who use online enabled devices, there are those who will use this as a platform for more sinister means, such as Cyber bulling and sexual related offences such as revenge porn. Shaheen Shariff [3] conducted studies surrounding online behaviour and results lead to believe that many young people between the ages of 11-18 do not share empathy for victims of revenge porn. Shariff’s findings saw a staggering percentage of 46.47% who believed those who sent explicit photos to one individual does not have the right to object to their photo being distributed to others as they “deserve” the humiliation (p61). Clearly Shariff’s test did not highlight potential criminal elements in his scenarios put forward in the questionnaires, therefore the participants are not fully aware of the consequences of distribution of sexual images when concerning the law.

The law of sexual offences in England and Wales had undergone a radical reform in 1999 and a major review had taken place in January of 1999 and these findings where contained in the document entitled setting the boundaries – Reforming the Law of Sex Offenders [4]. However, there is no sui generis law prohibiting publication of non-consensual pornography [5], however there is much debate to establish this appalling acts as a criminal offence within the UK. Recent in England Wales has evolved since 1999 when discussing sex crime and this was through legislation such as the Sexual Offences Act 2003, although this was a reform of old legislation there is still no relation to revenge porn has been deemed a criminal act. However due to numerous reasons some people may use these pictures in a despicable manner such as use of black mail which is a criminal offence. Blackmail for example is an offence under s21 of the Theft Act 1968 which states that the person is guilty of blackmail if with a “view to gain him or another or with intent to cause loss to another, he makes any unwarranted demand with menaces and use these menaces in reinforcing their demand” [6]. In Collister and Warhurst (1955) reinforces the elements required to convict those who are found guilty of Blackmail. [7]

Recent media coverage of revenge porn has raised awareness on the devastating impact of victims who have passed private images to others who then further distribute their victim’s images with the rest of the digital world causing damage to the victim’s life, career and their families [8]. Amanda Todd was a victim of online abuse and committed suicide in 2012 after she was blackmailed into exposing herself on a webcam and its images were subsequently distributed online [9]. Recently in the US, Kevin Bollaert was charged up to 18 years after being found guilty after operating a “revenge porn” website and then charged victims to remove nude images and personal information [10]. It was argued in court how this website cost people jobs and ruined their lives as well as led to one attempted suicide, while Bollaert collected around $30,000 from victims after charging the victims to remove their own explicit photos and personal information such as contact information and addresses [11]. In contrast to this Bollaert’s lawyer claimed that although the business was gross and offensive, their client did not break the law by allowing others to post the explicit material [12]. However in UK law, the House of Lords rejected proposals to criminalise non-consensual pornography when relevant legislation was being passed, as it was not “necessary to create a new set of offences specifically for acts committed using the social media and other information technology” [13]. It is suggested by many critics that the House of Lords failed to consider the full impact it has on victims of revenge porn. [14]

Cyberbullying is another high profile trend in the media spotlight. This is when a person uses technology i.e. mobile phones or the internet (social networking sites, chat rooms, instant messenger), to deliberately upset someone [15], while revenge porn is where the victims private images have been used against them in terms of blackmail or to cause distress and this is justified by the perpetrators as “revenge” who have no insight into the damages to the victim and if so, no remorse for the suffering of the victim.

There is not a specific law which makes cyberbullying illegal but it can be considered a criminal offence under several different acts including Protection from Harassment Act (1997), Malicious Communications Act (1988), Communications Act (2003) Obscene Publications Act (1959) and Computer Misuse Act (1990) [16], therefore it can be argued that cyberbullying does not need to have a specific law if the act is covered over a variety of criminal legislation in the United Kingdom. Although this may be true it can be argued that current alternative legal remedies fail to protect victims who publish sexually explicit images without consent adequately [17]. This is due to relevant remedies are often only available after the offence has occurred and it can be argued that there is limited support [18], a breach of confidence remedy can be brought quickly to prevent publication with an interim injunction and when the act involves the distribution of private information, a final injunction preventing this distribution is available to support the victim [19]. However a recent Law Review into the current legislation regarding breach of confidence and privacy found that there is no sui generis law prohibiting publication of details of an individual’s private life.[20]

In the UK it is suggested that publishing, disseminating and distributing non-consensual pornography by electronic and conventional methods should be redeemed criminalised under the Coroners and Justice Act 2009 by introducing a new statutory instrument entitled, “Misuse of Private Information Regulations 2014”.[21]

With ongoing debates in regards to the UK scrapping the Human Rights act 1998 [22], some will argue that our human rights will protect our liberties, however these rights can protect the perpetrator of these offences in relation to cyberbullying and revenge porn [23]. For example the right of freedom of expression, more specifically media freedom under article 10 gives those the right to freely express themselves even if this may affect the reputation of others [24].

Online abuse is forever expanding parallel with the advances of technology, this has led to society becoming increasing vulnerable to exposure to cyberbullying and humiliation from others. When considering existing criminal legislation and any alternative remedies, it seems that there is a need for reform as although it can be argued that various legislation can cover unacceptable online behaviour, the creation of specific laws to regulate online behaviour will raise awareness that this behaviour is truly unacceptable.


Footnotes

[1] Justine Mitchell Censorship in Cyberspace: Closing the Net on “Revenge Porn”.(Issue 8, Thomson Reuters (Professional) UK Limited and Contributors,2014) pp283-290

[2] ONS (2014) Internet Access – Households and Individuals 2014, http://www.ons.gov.uk/ons/rel/rdit2/internet-access---households-and-individuals/2014/stb-ia-2014.html last accessed 11/05/2015

[3] Shaheen Shariff, Sexiting and Cyber Bullying, (Cambridge University Press, 2014) p61

[4] Home Office (2000) Setting the boundaries:Reforming the Law of Sex Offenders, London. HMO

[5] Roelof Haveman, Olga Kavran and Julian Nicholls, Supranational Criminal Law: A System Sui Generis, (Intersentia nv, 2003)

[6] Maritn, J and Storey, M Unlocking Criminal Law, (3rd edition, Hodder Education, 2010)

[7] Collister and Warhurst (1955) 39 CR APP REP 100

[8] BBC News, “Teacher, 24, died after drinking cleaning fluid” 2010 located http://news.bbc.co.uk/1/hi/wales/8534899.stm [Accessed 09 March, 2015]

[9] The Guardian,Dutch suspect in webcam abuse may have targeted British girl, 2014, located www.theguardian.com/uk-news/2014/apr/18/dutch-webcam-suspect-british-victim [Accessed 10 March, 2015]

[10] The Guardian, Revenge Porn Website Operator Jailed, 2015, located at http://www.theguardian.com/us-news/2015/apr/04/revenge-porn-website-operator-jailed [Accessed 10 March, 2015]

[11] BBC NEWS, 'Revenge porn' website former owner Hunter Moore arrested, 2014, located at http://www.bbc.co.uk/news/technology-25872322 [Accessed 11 March, 2015]

[12] The Guardian, Revenge Porn Website Operator Jailed, 2015, located at http://www.theguardian.com/us-news/2015/apr/04/revenge-porn-website-operator-jailed [Accessed 10 March, 2015]

[13] Select Committee on Communications, Social media and criminal offences (2014–15, HL 37), para.94

[14] Justine Mitchell Censorship in Cyberspace: Closing the Net on “Revenge Porn”.(Issue 8, Thomson Reuters (Professional) UK Limited and Contributors,2014) pp283-290

[15] Robin M. Kowalski, Susan P. Limber, Patricia W. Agatston, Cyberbullying: Bullying in the Digital Age,(John Wiley & Sons, 2012)

[16] Kent Police, Cyberbullying, 2015, located http://www.kent.police.uk/advice/personal/internet/cyberbullying.html [Accessed 10 March, 2015]

[17] Catharine MacKinnon, Only Words (Harvard University Press, 1996)

[18] A v B (2002) EWCA Civ 337 at (7) per Lord Woolf C.J

[19] Home Affairs Committee, the Draft Anti-Social Behaviour Bill: (The Stationery Office Ltd, 2013)

[20] Contostavlos v Michael Mendahun (2012) EWHC 850 (QB)

[21] Justine Mitchell Censorship in Cyberspace: Closing the Net on “Revenge Porn”.(Issue 8, Thomson Reuters (Professional) UK Limited and Contributors,2014) pp283-290

[22] Aileen Kavanagh, Constitutional Review under the UK Human Rights Act, (Cambridge University Press, 2009)

[23] Donald Wilson Jackson, the United Kingdom Confronts the European Convention on Human Rights, (2nd edition, University Press of Florida, 1997)

[24] Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act, (Oxford University Press, 2006)

Reference List

Books

Aileen Kavanagh, Constitutional Review under the UK Human Rights Act, (Cambridge University Press, 2009)

Catharine MacKinnon, Only Words (Harvard University Press, 1996)

Donald Wilson Jackson, the United Kingdom Confronts the European Convention on Human Rights, (2nd edition, University Press of Florida, 1997)

Helen Fenwick and Gavin Phillipson, Media Freedom under the Human Rights Act, (Oxford University Press, 2006)

Maritn, J and Storey, M Unlocking Criminal Law, (3rd edition, Hodder Education, 2010)

Robin M. Kowalski, Susan P. Limber, Patricia W. Agatston, Cyberbullying: Bullying in the Digital Age,(John Wiley & Sons, 2012)

Roelof Haveman, Olga Kavran and Julian Nicholls, Supranational Criminal Law: A System Sui Generis, (Intersentia nv, 2003)

Shaheen Shariff, Sexiting and Cyber Bullying, (Cambridge University Press, 2014) p61

Websites

BBC NEWS, 'Revenge porn' website former owner Hunter Moore arrested, 2014, located at http://www.bbc.co.uk/news/technology-25872322 [Accessed 11 March, 2015]

BBC News, “Teacher, 24, died after drinking cleaning fluid” 2010 located http://news.bbc.co.uk/1/hi/wales/8534899.stm [Accessed 09 March, 2015]

Kent Police, Cyberbullying, 2015, located http://www.kent.police.uk/advice/personal/internet/cyberbullying.html [Accessed 10 March, 2015]

ONS (2014) Internet Access – Households and Individuals 2014, located at http://www.ons.gov.uk/ons/rel/rdit2/internet-access---households-and-individuals/2014/stb-ia-2014.html [Accessed 11 March, 2015]

The Guardian,Dutch suspect in webcam abuse may have targeted British girl, 2014, located www.theguardian.com/uk-news/2014/apr/18/dutch-webcam-suspect-british-victim [Accessed 10 March, 2015]

The Guardian, Revenge Porn Website Operator Jailed, 2015, located at http://www.theguardian.com/us-news/2015/apr/04/revenge-porn-website-operator-jailed [Accessed 10 March, 2015]

Journals

Justine Mitchell Censorship in Cyberspace: Closing the Net on “Revenge Porn”.(Issue 8, Thomson Reuters (Professional) UK Limited and Contributors,2014) pp283-290

Government documents

A v B (2002) EWCA Civ 337 at (7) per Lord Woolf C.J

Collister and Warhurst (1955) 39 CR APP REP 100

Contostavlos v Michael Mendahun (2012) EWHC 850 (QB)

Home Affairs Committee, the Draft Anti-Social Behaviour Bill: (The Stationery Office Ltd, 2013)

Home Office (2000) Setting the boundaries:Reforming the Law of Sex Offenders, London. HMSO

Select Committee on Communications, Social media and criminal offences (2014–15, HL 37), para.94