Hardly a day goes past when you don't read or hear about somebody, somewhere who has been a victim of cyber-bullying. These instances affect everyone in life, from celebrities to the people on the streets. Cyber-bullying is defined as unwanted advances or threatening behaviour directed at somebody either over the Internet or via other forms of computer or online communications. The common name for cyber bullies is 'trolls' as they upset people or cause arguments by posting extraneous, off topic or inflammatory messages into online forums and communities such as Facebook.

The latest report is of a woman being harassed online right through her pregnancy and even during her child's birth. The man behind this, Robert Jeffery, was this month handed a 3 year jail sentence after admitting to one charge of stalking which involved the fear of violence. On sentencing Jeffery, the judge said that he had shown vindictive cruelty towards Sarah Sutton and that that cruelty has had such devastating consequences that she went through 6 months of psychological hell.

How big a problem is cyber-bullying?

While the amount of news stories about cyber-bullying would suggest this is a massive problem, pinning down official stats is pretty difficult. Sources from the Government have suggested there is a global epidemic and it is the volume of unreported cases that make it almost impossible to say just how many people are affected by it.

Cyber-bullying amongst the young is becoming increasingly prevalent not only in schools but also in colleges and even in the workplace. The Ditch the Label's Annual Cyberbullying survey 2013 revealed stats which showed that 7/10 young people have suffered from cyber-bullying.

In May of 2014 Sky News ran a report on the results of an FOI investigation. They had asked police forces across the country how many investigations they had launched during the past 3 years that fell under the jurisdiction of Section 127 of the 2003 Communications Act. Which is the sending of offensive or menacing messages. The results were disturbing to say the least.

During the 3 years in question 1932 youngsters where investigated and of those 1203 were charged with a criminal offence or cautioned, fined or issued with a verbal warning. Both the Government and parents need to get a handle on this and tackle this growing menace, whilst children need to be made aware of the consequences that can arise from being both the victim of cyber-bullying and actually being a cyber-bully.

Current Legislation

At present there isn't one single piece of legislation covering cyber-bullying, so any cases are forced to employ a combination of different laws depending upon the circumstances of that particular case. However, such statutes as the Communications Act 2003 have no provisions within them for making a civil claim. To do this victims will usually have to make use of the amended Protection from Harassment Act 1997.

In 2013 the Defamation Act reformed several issues regarding both protection of reputation and freedom of expression. While it is outside of the report's parameters in order to bring legal actions against somebody the victim must demonstrate what serious harm has arisen as a consequence of any defamatory statements. This can include such things as psychological damage, and this is an injury which victims can claim compensation for. This effectively means that in certain cases victims have the choice of claiming for either personal injury or under the Defamation Act, or both.

The pros and cons of the existing legal options

Criminal Action

The victim has to make a report to the police in criminal action cases and the following are advantages and disadvantages of going down this route.

Advantages

    • Not having to pay costs
    • Obtaining a restraining order against the person/s who are the bullies
    • Being able to get the offensive material removed
    • A custodial sentence sends out a warning message to other cyber-bullies
    • Modest damages


Disadvantages

    • Variable responses from the police
    • Loss of control over the proceedings
    • Limited damages
    • Paying for legal assistance
    • Limited damages payout



Civil Action

Any victim of cyber-bullying or stalking has the right to apply through the court to obtain an immediate injunction. This effectively restrains the perpetrator and stops them from continuing with their offensive online conduct. In order to lodge a harassment complaint there must be a course of conduct in place, meaning that you cannot claim for one incident there have to have been several incidents which were likely to either cause distress to or alarm, the victim.

As there is no requirement pertaining to a risk of physical harm or physical threat, a civil injunction can be a tool to combat a huge range of intrusive activities which are usually implemented online.  A breach of an injunction is  equally as serious as a criminal offence, and thus carries a maximum of 5 years in prison and/or a hefty fine.

Damages awarded under section 7(1) are for distress and/or anxiety. The victim also needs to show that the perpetrators conduct was both unacceptable and oppressive, but they do not have to prove that they have suffered any actual psychological damage.

This statute is widely interpreted by courts and the claim doesn't have to always against the bully either. Employers can he held vicariously liable if any of their employees committed the act of harassment in the course of their job. Schools can also be held vicariously liable for posts their students have made, whether they do it on a school computer or at home on a mobile device. The best line of defence against this is akin to that in the Bribery Act; be able to demonstrate that they have taken appropriate and adequate steps in order to educate everybody.

Keeping Safe Online

E-safety and behaviour policies are in place in every school. From the term beginning in September all children are to be taught how they can use modern technology securely, respectfully and safely. Information has been issued by the Child Exploitation and Online Protection Centre/National Crime agency regarding sexting and teachers are being provided with material.

In March this year the government revised its advice to school regarding cyber-bullying and bullying, and set out not only their legal duty but also the steps they can take, and the power they have, to tackle it head on. The Online Safety Bill focusses on parental responsibility but also assists schools when it comes to cyber-bullying. This is a good move as parents need to be involved when it comes to helping their kids to understand the risks lurking online.

Conclusions

At the time of writing there haven't been any cases for either personal injury or the consequences of online bullying. This is despite the ever increasing number of reports that have been made to police as well as the substantial evidence that exists relating to mental illness, but this is set to change pretty soon. Technology is making it easier than ever to be a cyber-bully, and the law must keep up with these technological advances and have the remedies in place for those victims who suffer severe psychological harm.

Those lawyers specialising in personal injuries should be now thinking how worthwhile it is being in the vanguard of what is likely to be a claims avalanche against cyber-bullies who have caused their victims to fall ill. An interesting twist is whether they will have a claim against the social media sites under the aforementioned principle of vicarious liability. There will probably, however, be some difficulties as most of the main social media networks are not based in the UK. Facebook is in the Republic of Ireland and the US, Twitter is also based in the US and AskFM is actually in Latvia.

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