Wednesday, 1 June 2016

Harmful Electronics Communications Consultation

Over the next weeks, I am going to be looking at the changes to the law regarding cyberbulling,. Today is my submission to the consultation.

The comments on the preamble to the law said that "The responses to the consultation mainly offered personal opinion and highlighted individual experiences. As such, they provided limited new quantitative evidence"

This is, I might venture to say, very patronising and dismissive. Personal opinion may be guided by reading around the subject, so that it is an informed opinion. Anecdotes can make useful general points of principle.

The thing I like about scrutiny is that submissions, redacted to hide names, are made public, so that people can see for themselves what has been said. Ministerial consultations, as a rule, tend to be "pick-n-mix" affairs, where selected snippets may be used, but one has no real idea of the balance of the submissions. The one exception was the consultation on the site of Les Quennevais School, where a document was published (in print and online) giving every single submission.

19.06.2015: Consultation Replies

1. Do you think that the approach proposed in this consultation document strikes the right balance between ensuring freedom of expression and the need to uphold the criminal law?

It was not exactly clear from reading the document what precise legislation would be enacted. In the case of incidents like “revenge pornography”, intent can be deduced from actions with little room for ambiguity. Proving intent in other circumstances may well prove difficult.

I would therefore be in favour of legislation where known harm can be assessed, and the action can be taken as a direct correlate of intent.

Intent could also be taken where someone is the subject of direct emails which are abusive, offensive or threatening, provided that the individual concerned is aware of what they are doing.

Intent can also be problematic. The case of Simon Abbot can be seen as harassing an individual or as alerting the public to avoid being duped.

Apart from that, I would suggest that guidelines to existing legislation would be better than trying to legislate and falling between the Charybdis of suppressing freedom of speech, and the Schylla of untrammelled freedom to abuse others.

2. Do you think that, as a matter of general principal, people should be held accountable for their activities conducted online in the same way that they are for activities conducted offline?

As a matter of general principle, I’’d agree. I would say that existing legislation should perhaps be clarified to include electronic medium of exchange in cases where that is implied, but not made explicit because the technology did not exist when it was framed.

3. Do you think it is appropriate to amend the existing offence in Article 51(a) of the Telecommunications (Jersey) Law 2002 so that it is clearer when the sending of a harmful online communication should be treated as criminal?

I think that more clarity is required, but equally, it should be in line with UK and European legislation.

4. Do you think that it would be appropriate to create a new offence so that is clearer when the sending of a harmful online communication should be treated as criminal?

I think this is extremely problematic. A direct email or direct text message or telephone call that is of a grossly offensive, obscene or threatening character or the sending of a false electronic communication for the purpose of causing annoyance, inconvenience or needless anxiety to another could certainly form the basis for a new offence.

This must allow for the case (for example) of people on the autistic spectrum who may be unaware of the degree of offence which they are causing because of their lack of social skills training. In that respect they may be considered akin to individuals for whom swearing is habitual rather than deliberate. How the law should deal with them is difficult, as there are often limited numbers of individuals with both legal knowledge and well trained in understanding autism. In this respect, I would recommend “Autism, Advocates, and Law Enforcement Professionals: Recognizing and Reducing Risk Situations for People with Autism Spectrum Disorders” as a useful guide. To criminalise such individuals would clearly cause harm when they need not legal sanctions but appropriate help,

There may be other cases where some kind of exception needs to be built into any legislation, such as mental health issues, but I highlight autism because it is an area where I have probably more knowledge and experience than the average layman.

Other kinds of media rather than direct email can be more difficult to quantify. When Tweets that are offensive are retweeted the individual may not really be assessing greatly what they are doing, or how they are liable. The case of Lord McAlpine shows that this can have damaging consequences if normal legal rules are applied, and that should be sanction enough.

It is not clear exactly what a Court intervention would accomplish, and it might well have the effect of alternative mechanisms (anonymous accounts and IP addressed) being used to both repeat the accusation, and to comment on the Court’s actions. This is the notorious Streisand effect, named after the actress who attempted to block footage of the coast which showed, in passing, her house, and instead drew global attention to what would have otherwise been overlooked. The case of Trevor Pitman and the cartoon can be seen as another local example.

But I think there should definitely be a new offence of incitement to commit suicide where the offender can be sent to prison or fined whether or not a suicide resulted or was attempted.

5. Do you think that alternative approaches to tackle this type of behaviour should be considered as well as/or instead of changes to legislation? If so, please give details.

Alternative approaches could be taken, and in particular, when individuals can be identified, especially if young people bullying other people online, I would personally suggest extending the scope of the Parish Hall enquiry to deal with cases (and evidence) referred to them. The Parish hall enquiry has been the subject of an academic study and an article in the Economist demonstrating what an effective mechanism it is for dealing with offences and keeping people – and young people in particular – outside of the Courts.

Rather than having Cyberbullying incidents dealt with by the police and courts directly, I would recommend legislation which allowed a case file to be passed to the appropriate Parish honorary police to deal with in the same way that they would deal with disorderly or abusive behaviour in the real rather than virtual world.

6. Do you believe that a specific offence should be considered relating to ‘revenge pornography’?

Yes, I think this is very clear. I think this would send out a very strong message that this behaviour would not be tolerated.

7. Do you have any comments in relation to the topic that you feel have not been addressed in this consultation? If so, please give details.

I suggest the following to be considered:


I was looking at the phrases “uses words that are threatening or abusive”. One of the problems with online communication is the lack of the social cues, such as body language. Tone can be very difficult to judge. In such situations, the litmus test which would need to be applied is if language is capable of no other interpretation than threat or abuse. Any legislation would need to include some caveat of that sort, and it might be worth looking at the academic studies of how online communication can be misunderstood.

Another area not considered is where English is not the native language of the user, in which case they may unintentionally use words which cause offence without meaning to. Even within English, there are significant differences between American English and British English -– try telling an American “if the cap fits, wear it”, and the understanding will be very different as that idiom is not native to America, whereas the term “Dutch cap” is.

Following and Stalking

Where to strike a balance between “stalking” an individual by another individual can also be problematic online. Both Facebook and Twitter have mechanisms to allow an individual to “follow” another. Merely using the inbuilt mechanisms (and users can be “blocked”) should not be considered “stalking”

Different Kinds of Permanence

If material is on a blog, it is there permanently, is usually searchable by main engines such as Google, and can be considered readily available.

If on Facebook, it gradually falls out of site, and there is no easy mechanism for finding historical posts as Facebook postings are mostly not trawled by search engines. This means that it can be extremely difficult to locate and remove a posting, even if a Court ordered it.

If on Twitter, the falling out is even fast. It is possible to use some search facilities to do a limited search of Twitter posts (I’ve used them) but it is clumsy and not simple.

This leads to some posters repeating the same messages again and again on Facebook or Twitter to ensure that they are kept in the “current” rather than receding into the past. This can be done with accusations or simply to keep matters in the public gaze (e.g. Reg Langlois selling parts of his garden).

For a blog, an order to remove can be easily done, but removal of content on Facebook or Twitter may be virtually impossible to do, but equally, no one is likely to see the offending material. Like an old newspaper, it is tomorrow’s fish and chip paper, yesterday’s news. The key here would be to ensure that someone posting something defamatory or abusing or threatening did not persist in doing so rather than removing the offending post. This should be born in mind.

Personal Comment

I think that the development of guidelines, and perhaps forums where individuals can meet to discuss and sign to a code of conduct would be a good step forward to establish a good consensus with boundaries.

There has to be a balance drawn between the right to a private life, and what happens when an individual becomes a public figure. Clearly criticism of their personal family life would seem to be Cyberbullying of the worst kind.

On the other hand, sharp criticism of public practice is part of the cut and thrust of politics for individuals with a high profile, which includes sarcasm, satire, and a whole range of expression which is notable in TV shows like “Have I Got News for You” and “Private Eye”. That comes with the territory, and politicians have to expect something of that kind.

If I may speak from personal experience, I critique various politicians and organisations from time to time, but no more than the newspapers do. The ability to comment on the issues of the day, the decisions made, and how one sees those can be done in strong language without resorting to personal insults.

In fact, looking at the House of Commons over the past two hundred years, one can see notable political insults made by famous politicians

Occasionally, I satirise politicians, but it is always very clear when I am doing so that what I am saying is not to be taken literally. How far the boundaries of satire go is always debatable, but I think that Jersey should clearly follow the lead of the UK. An example of such a satire, as a spoof of Gilbert and Sullivan’s Major General song, can be seen here:

I would note that as a rule, blogs tend to be more personal even when reporting, more akin to columnists in the JEP. I write in a quite different style when reporting for the Parish Magazine. The notion that bloggers are "Citizen Media" is I think overblown, and yet social media can organise protests by citizens effectively (A Line in the Sand, for example). When I write for the Parish Magazine, I am writing reportage style, I am avoiding my own opinions. When I write on my blog, even if about a meeting, I may also interject comments. The notion that some bloggers have of being "investigative reporters" is I think wishful thinking.

Removal of Blogs

As far as removal of blogs is concerned, the notable failure to removal Stuart Syvret’s blog shows that a heavy handed approach is simply not workable in a global network. A copy of his blog was put up anonymously on another blogging system, and he himself is cheerfully back online.

In fact, the court action produced what is known as the Streisand effect, whereby the four individuals who had brought an action under Jersey Data Protection Laws were very visibly identified, and still are identified, due to a mention in the UK Hansard. Unlike Jersey’s Hansard, the UK Hansard cannot be edited retrospectively to remove names.

The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.

Success was short-lived, and the ability of individuals to hide behind a cloak of anonymity when putting up a duplicate of Stuart Syvret’s blog means that it can be extremely difficult to take action.

Moreover, any action taken can often have the effect of making the individual appear to be a martyr for the cause of free speech, something which can in might cause reputational damage from the Island with jurisdictions such as America where free speech is generally prized – within, of course, the bounds of American Exceptionalism, where it does not extend to Julian Assange or Edward Snowdon.

Also the global reach of the internet means that while any framework of law might be used to constrain local individuals, the anonymity which the internet provides, and the global reach, ensures that a determined individual can always find a mechanism to flout any restrictions.

Mike Vibert Website

In the 2011 election, anyone looking to see the website would have seen a fake website which purported to be that of Senator Mike Vibert, but which actually was presenting him as being dictatorial, overbearing, arrogant etc from a first person perspective. The site appeared as far as I could determine to be hosted in France, and while I have suspicions as to whom may have been in part responsible there is no way of knowing that.

In previous elections, Mike had used this domain, but had left it to lapse, only reviving it around the times of elections. Clearly someone had stolen the domain before the election, and effectively stolen his online electoral identity. It is unclear, what, if anything, could be done to prevent this.

However, it might be worth considering that identity theft should form part of any legislation about online malpractice.

Charlie Hebdo

The case of Charlie Hebdo and indeed the rumpus from the Danish Cartoons earlier shows how difficult it can be to decide what limits there are to free speech in Western democracies. Private Eye, in its paper edition, but not online, demonstrated its support by reprinting the various cartoons it had published over decades against Islamic extremism.

It is notable that people can become extremely defensive and sometimes hostile with regard to religious beliefs, and yet no one believes that practices carried out which repress and abuse women in some Islamic nations and in the Islamic state should be condoned.

The Jersey Evening Post refused to publish an article by Canon Gavin Ashenden, Vicar of Gouray, who had criticised Islam in a manner they deemed provocative – he subsequently published it on another person’s blog.

Where does one draw the line between serious criticism of regimes which violate human rights, and incitement to hatred? I don’t have any answers, but this is a matter which needs to be considered.

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