Online harassment is illegal in England and Wales. Despite this and the fact that students are particularly vulnerable due to their strong engagement with technology and social media, the law is known to have little deterrent effect and online safety remains a relatively undeveloped aspect of the safeguarding regime in higher education. This is problematic in a number of ways for students and higher education providers alike.
Many students are understandably concerned about online abuse and while providers recognise the duty of care they have to all members of their communities there remains an absence of clear guidance on, or consistency in, what should be done. Given that the physical, psychological and emotional effects of online harassment can be far reaching and impact on attainment, attendance and completion rates, it has become critical to ensure that students have access to the reporting mechanisms and support they need and that both criminal and civil law keeps up with relentless development of communications technology.
“The internet is a powerful force for good. It serves humanity, spreads ideas and enhances freedom and opportunity across the world. Combined with new technologies such as artificial intelligence, it is set to change society perhaps more than any previous technological revolution – growing the economy, making us more productive, and raising living standards.” Digital Charter, Department for Digital, Culture, Media and Sport, April 2019.
Whilst the statement above is undoubtedly true, technology also helps to facilitate online abuse and offences such as harassment and stalking by enabling offenders, individually or in groups, not only to post hostile content to targeted individuals but also to impersonate others when they do it.
The problem is particularly acute for students in higher education. While harassment can come in many forms, there has recently been a particular focus on harassment of a sexual nature in the media press and by campaign groups in relation to university students. In a recent [student] survey by sexual health charity Brook, 26% of women indicated they had been sent unwanted sexually explicit images. Only 3% of those surveyed said they had reported online harassment, in part because they did not know where to get help. It has also been reported that some students have such a lack of faith in their university’s ability to deal with this problem effectively that they are choosing to share their sexual abuse allegations on social media instead of reporting it through formal channels. There is a similar lack of faith in reporting abuse allegations to the police, which is likely to be due in part to the limitations in the criminal law relating to offences of this nature.
The Law on Harassment
Harassment is both a crime and is actionable in the civil courts. The law stems mainly from the Protection from Harassment Act 1997 (PHA). To be actionable, behaviour must involve a ‘course of conduct’ (ie more than one incident) which ‘amounts to the harassment’ of another person ‘and which [the defendant] knows or ought to know amounts to harassment of the other.’ It can be on or offline. Stalking is classed as a form of harassment, though it is also recognised as an offence in its own right. More recently, laws such as the Serious Organised Crime and Police Act 2005 and Serious Crime Act 2015 have widened the number of harassment offences. Examples of conduct that courts have held to be harassment include ‘posting or threatening to post private and confidential information about the claimant on the internet’ and ‘threatening communications via the internet.‘
In addition to this, the law recognises ‘communications offences’ under the Malicious Communications Act 1988 and Communications Act 2003. An example is the persistent use of a public electronic communications network for the purposes of causing annoyance, inconvenience or needless anxiety. Given the ease with which such offences might be committed, it is unsurprising that the threshold for prosecution is high. It must also be balanced against the protection of freedom of expression.
Civil action usually involves more cost and time for the party pursuing them than the criminal route. It is therefore often preferable for the criminal process to be looked at in the first instance. However, police resources to investigate crimes are limited. Historically, harassment would often require threats of physical violence to result in formal steps being taken. Over the past few years, there appears to have been a change in approach, with better recognition of the mental anguish that online harassment causes. There will, however, still be instances where criminal action may not be the best option or will not be pursued, and civil action needs to be considered, whether to seek a court order prohibiting the ongoing harassment or in attempting to unmask an anonymous harasser.
Individuals targeted by harassment are the most obvious people to commence action, although representative action (such as by the institution) may be possible. Higher education providers clearly also have safeguarding obligations to those in their care. The level of media interest in harassment and related matters in higher education also makes it an area where reputational issues need to be taken into account by the institution in handling such issues, and being seen to do so, in an appropriate manner.
The Need for Reform
One type of online harassment not well covered by the law is group or ‘pile on’ abuse of another online. The PHA does recognise collective harassment but, as the Law Commission (LC) acknowledged in 2018, it is apparent that the law has little deterrent or punitive effect on those who engage in, for example, campaign abuse on social media involving the incitement of others to send further abusive messages. Another problem is the ambiguity of key legislative terms such as ‘indecent‘, ‘publish‘, ‘grossly offensive‘ and ‘public place’ which makes it difficult to gauge when communications should be deemed unlawful or illegal.
It would be far from fair to suggest that the HE sector has not made improvements to the way in which the issue of online abuse is handled. As acknowledged by the Office for Students, the recent review by Advance HE of the 84 Catalyst fund projects is clear that there have been positive signs, including an increase in the reporting of incidents and a reduction in tolerance of hate crime as well as greater evidence of partnership working (with students and external organisations) to tackle these issues. It is also apparent that the hiring of specialist staff, including individuals trained in investigating hate crimes and sexual misconduct, is having an impact. Projects improving students’ ability to recognise hate crimes, raise their awareness of online risks and encourage them to be ‘active bystanders’ have also been cited as creators of greater inclusivity and ‘digital civility’.
One area in which there is further scope for improvement is in incorporating key online safety messages into the curriculum, something which is already recognised in schools as an integral part of safeguarding. Having robust and reliable reporting mechanisms is important but reducing the frequency of abuse incidents will need proactive and sustained challenging of problematic and unacceptable behaviour that will otherwise remain normalised.
The challenge of balancing the benefits and potential pitfalls of technology is not going to go away. Effecting cultural change at a sector level remains an important objective in higher education and it is an endeavour which is already resulting in tangible improvement. There is of course always more than can be done and it is welcome news that the Law Commission was last month tasked with commencing phase 2 of its criminal law reform project on communications offences. It will be some time before any law reforms are implemented but we do know that the LC does not consider ‘that the onus should ever be placed on the victim to modify their behaviour in relation to online abuse‘ although, in practice, victims ‘undoubtedly do so‘. Only by refusing collectively to tolerate the normalisation of problematic conduct can we expect this to change.
Kris Robbetts is a partner at leading education law firm VWV. Kris can be contacted on 0117 314 5427 or at email@example.com.
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