Bliss 'The Protection from Harassment Act 1997: Failures by the Criminal Justice System
in a Social Media Age' (2019) Journal of Criminal Law 217
o Under the PHA, there is currently no strict definition of stalking- The lack of a
coherent definition in relation to this type of behaviour has meant that the
law has not always been applied adequately when it comes to differentiating
between harassment and stalking
o However, in most circumstances, for the criminal justice system to be
satisfied that a course of conduct is present in a matter, contact must occur
on more than two occasions. Here, the conduct must be close in both time
and proximity. This can create problems when harassment is pursued via the
use of social media
o The anonymity of the Internet has made it easier for harassment to be
conducted and has been coined cyber harassment. However, the ability to fit
s. 2 of the PHA to a technology-based world can be difficult when it comes to
establishing a course of conduct.
o The use of fake online profiles and the anonymity of the Internet can create
difficulties for victims and the police in tracking perpetrators of online
harassment, further exacerbated if the perpetrator is unknown to the victim,
despite a digital trace being available
o For a successful conviction under the PHA, the prosecution must be able to
prove a course of conduct that exceeds more than two occasions. Here, each
separate complained about behaviour must directly link back to the accused.
If a perpetrator of online abuse uses multiple servers, along with fake social
media profiles, this can cause issues in establishing a course of conduct,
especially in a time when police funding is being reduced
o Harassment- It is clear from previous case law that the matter needs to go
beyond what can be deemed as ‘disturbing’ and ‘unpleasant’ behaviour, to
‘cross [a] boundary’ to invoke the criminal law, allowing the criminal justice
system to uphold a person’s right to freedom of expression
o In a social media age, the high threshold associated with free speech puts
further disadvantages on victims of cyber harassment. In many cases, the
matter being complained about can be considered as ‘disturbing, unpleasant
and may transgress the norms of socially acceptable’ behaviour, but it is
difficult to prove that the conduct crosses the evidential line to be considered
as breaching the law
o As previously stated, prior to 2012, stalking and harassment were treated as
the same offence and both governed under s. 2 of the PHA. However, in
2012, stalking was included in the Act as a separate offence in its own right
under s. 111(1) of the Protection from Freedoms Act, after concerns were
raised that the law was failing to protect stalking victims
o the PHA does not contain a specific definition of stalking; instead, the Act
encompasses a non-exhaustive list of conducts, which are considered to
amount to this type of behaviour
o The Internet has now created new and unique ways to stalk another, while
allowing for direct contact between the perpetrator of the offence and the
victim, which in many cases can occur ‘around the clock’. There continues to
, be, however, issues as to when someone’s continued unwanted contac goes
beyond the conduct of harassment to stalking
o As previously stated, there is no specific legal definition of stalking, instead,
the PHA relies on the idea that the conduct falls within the ‘definition of
harassment’. However, for MacEwan, this ideal is not possible, as certain
behaviours which amount to stalking, ‘within a cyberstalking context’, may
not pass the threshold of harassment to warrant criminalisation, for instance,
‘watching and spying on a person
o The examples above illustrate a failure by the police and the CPS to link
online abusive content to the behaviours of stalking and harassment,
resulting in devastating consequences for some individuals
o Social networking companies are, therefore, not only reluctant in working
with the criminal justice system to disclose information contained on their
sites but also, they are slow in the application of removing abusive content
from their network. The law must, therefore, intervene more adequately to
protect individuals from online abuse
o Better training of legal personnel within the justice system, clearer legal
frameworks and improved education is needed to help tackle this growing
problem in society
Regulating harassment: Is the law fit for the social networking age, Geach and
Haralambous, 2009
o 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
o 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 via the internet
o Online harassment- 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
o However, harassment via social networking websites has also recently
become an issue for the courts, as illustrated by the case of Michael Hurst
who, in March 2008, was tried for the offence of harassment under s. 2 of the
PHA 1997- voluntary act of creating a profile page on a social networking
website
o Users have a significant degree of control over their profile page and privacy
settings on Facebook, and it was also argued by the defence that if she did
not want such contact she could have simply rejected the request from Mr
Hurst.6 It is also true that a Facebook user may ‘block’ any other user in order
to prevent unwanted contact—blocking another user renders your existence
