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How the law protects you when you, or your clients, are abused online

The juggernaut that is social media offers increasingly important ways for individuals to communicate, express their identity, consume and report on live news, and promote personal brands. However, particularly for celebrities and high-profile individuals, there is often an unwanted cost: online abuse. Take the misogynistic messages fired at the Lionesses amidst their Euro 2022 glory. And it’s not just high-profile individuals who get targeted: almost one in four people in the UK have experienced some sort of cyberbullying, with women twenty-seven times more likely to experience it than men.

Enter the Online Safety Bill, which has the aim of making the UK ‘the safest place in the world to be…online.” As well as introducing new communications offences, the Bill places a duty of care on platforms which host user-generated content to protect their users from unlawful content (and for children, content which is lawful but harmful). But how can individuals protect themselves in the meantime? Fortunately, there are a number of existing legal and practical tools available.

Harassment

Under the Protection from Harassment Act 1997, it is an offence for someone to pursue ‘a course of conduct’ which they know, or ought to know, amounts to harassment. This includes conduct causing alarm or distress, and which takes place on at least two occasions. The Act catches acts committed online, for example through the repeated sending of threatening messages. Practical ways of stopping harassment include blocking the perpetrator or reporting conduct to the relevant platform. Where the perpetrator’s identity is known, it is also possible to pursue a civil claim for damages and an injunction ordering them to cease, but this is costly, time consuming and can backfire when dealing with an obsessive individual.

Extreme cases might constitute criminal harassment and warrant involving the police.

Defamation

Whilst mainstream press articles are checked for legal issues prior to publication, this is not the case for the average Facebook or WordPress user, as Countdown star Rachel Riley recently found when a blogger falsely claimed she was a "serial abuser". Indeed, many individuals do not realise that the law of defamation applies to anyone who ‘publishes’ a statement to third party, whether that is an individual uploading a blog post from their living room or a national newspaper operating a professional newsroom.

Whilst there is no one definition of ‘defamatory’, this generally refers to a false statement causing serious harm to someone’s reputation and lowering them in the estimation of right-thinking people. Especially when so many are non-the-wiser, it can be useful to instruct a lawyer to point out the law and to demand that a statement be retracted/removed to avoid legal consequences.

Data protection law

Meanwhile, developments in data protection law have made it possible to achieve the removal of harmful content from online search engines such as Google, which must now operate within the framework of what is known as the ‘right to be forgotten’. Search engines may be required to delist URLs containing personal data which is irrelevant, outdated, inaccurate or unlawful. Whilst anyone can submit a request, depending on the merits of the case, it can significantly increase the prospects of success for a lawyer to prepare the request on the basis of the relevant law.

Private information

If someone shares information about someone which is private, that conduct may also be unlawful pursuant to the law on misuse of private information and/or breach of confidence. For example, if private medical information is shared online without consent, or someone makes intrusive statements about another’s personal relationships or children, the poster could be in breach. Again, it may suffice to instruct a lawyer to point out the wrong in the first instance.

Although mainstream online platforms have Terms of Use binding their users, even where unacceptable conduct is reported, action is not always taken. Moreover, it can be difficult to even find a way of communicating with monolithic online platforms and search engines, meaning that again it can help to instruct a lawyer.

Dealing with content posted anonymously can also be challenging. However, there are ways of identifying anonymous posters, such as through obtaining a court order (known as a Norwich Pharmacal Order) against a third party like a social media platform that requires them to disclose the account holder’s details. However, this can be costly and can prove fruitless if the person registered fake information. Other options such as engaging an intelligence and investigations firm may be more effective. In any event, the upshot is that trolls cannot necessarily hide under a cloak of anonymity where they have defamed or harassed someone online.

As for prevention, legal professionals often work with third parties like digital experts, who can conduct mapping exercises to establish vulnerabilities in online profiles, following which any problematic information identified can be removed before it falls into the wrong hands. Online monitoring can also detect issues early.

Therefore, although the Online Safety Bill will provide a welcome sea-change, there are plenty of existing tools for dealing with online abuse. It is also important to remember that prevention is better than cure, and to be vigilant about the risks inherent in having an online profile.

Written by Molly-May Keston, associate at law firm Farrer & Co

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