“Stalking to be made specific criminal offence” – Cameron. According to Section 39 of Criminal Justice Act 1988, it has given that common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term of not exceeding six month or to both. Stalking is an action directed at a specific person that would make a reasonable man to feel threaten and can be charged under assault. It is a serious crime and offence that under the Protection Against Harassment Act 1997.
Regarding to the question given, that online harassment has become the phenomenon especially when the population of Facebook has increased rapidly since 2008. Here, we need to deal with the existing law and settle the questions about how is the stalking occur in social network sites and how much it could affect our life. At first, we should know that the definition of “Assault” is the defendant intentionally or recklessly causes the victim to apprehend imminent and unlawful force or violence.
Under Section 47 of Offences Against the Person Act 1861(OAPA), it brings that assault occasioning actual bodily harm whereas section 20 the defendant must maliciously inflicting grievous bodily harm and to charge with section 18, the prosecution must prove that the defendant had the intention to cause the grievous bodily harm. The sentence will be a fine or imprisonment up to 6 months or both. The Actus Reus of assault is causing apprehension of the application of unlawful force and can without touching.
The Mens Rea is the defendant must show either intended or subjective recklessness that the victim would apprehend imminent unlawful force. The old law In the case of R v Ireland (as known as R v Burstow), the defendant has confessed to the victim and she refused him. He could not accept this and he made a series actions of harassment towards the victim including made silent phone calls, abusive telephone calls, appears at the victim’s house, took photos on her, distributed offensive card to her neighbours and sending blackmail.
As a result, the victim suffered mental depressed illness. Two questions were raised are whether psychological harm could consider bodily harm under Offence Against a Person Act (OAPA) 1861 and whether a person could be liable under Section 20 where there was no direct or indirect applications towards the victim. The court held that the psychological harm could consider as bodily harm, obiter dictum in Chan-Fook has applied and the word ‘inflict’ simply means cause in Section 20. Thus there was no requirement that physical force is directly applied or not.
A relationship may become stalking when one person wished to end the relationship and the other refused. However the OAPA had failed as it required proof of actual or grievous ‘bodily harm’ which was thought to encompass only physical harm and some degree of the actions are thought not to be present in the cases involved. Further, the direct application of force was required in order to get charged under section 20. Then, R v Constanza  has wider the boundaries of assault which including verbal and written form (letter) are applicable to prove assault.
From this, one could argue that can the stalker still be charged if the victim doesn’t have any idea that he or she was been stalked by someone? Therefore it is important to prove the intentions of the stalker by action itself. Why do they stalk? We should analysed the practical realities in Facebook that when we look into other users account or we called it “timeline”, we are able get to know that particular person’s photos, status and personal information, as long as that user didn’t set their security privacy, this user profile is public to everyone because everything that the user shares is public discoverable.
In order to criminalize those action, one could argue that the action when using a Facebook account to look through a person’s profile, can fulfil the act of omission, the Actus Reus of assault can be proved as it may put the victim in a fear of violence because the victim does not have any idea that who is looking through his or her account in time and the intention to get to know that particular user more may fulfil the Mens Rea. One need to know that stalking is not always intentional but it will cause a person feel annoyed and fear. The Current Law
In past, there is no actual legislation exist to overcome online harassment until the current law existence of Protection Against Harassment Act (PAHA) 1997, there is finally an actual legislation that specific for “stalking”. Regarding to this particular act, Section 1 and Section 4 were enacted to provide for the rise in harassment and stalking cases. Section 1 provides the Actus Reus of stalking which the defendant engaged in a course of conduct which is amount to harassment and the Mens Rea which is the defendant knew or ought to have known that conduct amounted to harassment. It does not require prove of fear of violence.
On the other hand, Section 4 has brought the higher level offence which carries the maximum penalty 5 years imprisonment and the prosecution must prove that a course of conduct that cause the victim feel threatened and dangerous. The action of harassment may not by action or sound but can by word itself and could amount to assault. Thus, the intention of stalk is important as it could form a risk to that particular user especially when the user “check-in” from Foursquare and it was connected to Facebook by authorization of user, which means that the stalker could have a comprehensive grasp of that user without acknowledgement.
From the point of reasonable man, they wouldn’t feel any discretion or potential danger while they are sharing their profile update via Social Networking Sites (“SNS”) because they think it just the ‘game instruction’ of SNS in common sense. However, it doesn’t mean the action that the stalker malice stalks the other persons account was legal. Fundamentally, SNS can be described as “online communication platforms which enable individuals to join or create networks of like-minded users. ” It does fall within the definition of “telecommunication system” under s. 2(1) of Regulation of Investigatory Powers Act 2000.
SNS are comes with purposes from the basic functions of contact with friends to the provision of health advice, the sharing of scientific expertise or business initiatives. People setting up their SNS profiles and requesting information from public to meet new people and share information, however in obverse it can use for criminal purpose such as cyber bullying and fraud. In a simple word, whatever u done in internet will be recorded in the IP address, subsequently the IP information of the individual use to access to the account with any other computer will get recorded.
All the SNS information will be stored on the user’s computer cache in hard-drive. That’s where the prosecutor and police to collect evidence of cyber stalking because IP address cannot be eroded and can be take into as evidence in court. There is no doubt that SNS has empowered the law enforcement as police has greater potential value in scrutiny criminal action of SNS. Law enforcement agent can use SNS to suspect offender or target a particular group as investigate purpose. They are allowed to track and locate suspects by locating IP address.
As a simple example the police could establish a fake SNS profile, pose as a teenage girl, and wait to be contacted by a possible rapist. The action of stalk is obvious to be seen, but how about the intention? How the courts criminalize the intention from a person who stalked? However, the present state of law is unclear to whether systematic monitoring of public SNS profiles constitutes covert surveillance. Is it sufficient to ensure a lack of awareness, simply by police keep go-on-line and viewing the same profile repeatedly without the targets knowledge?
The unsure of directed surveillance authorisation is stated by Lord Collins in Wood “it is plain that the last word has yet to be said on the implications for civil liberties of the taking and retention of images in the modern surveillance society” Then we need to further discuss how stalking can get occurred in Facebook. The problem is, did the Facebook principle do actually make our world more understandable as they mentioned in the introduction of Facebook Statement? Is it good for everyone to publicize personal information within Social Network Websites merely to follow the terms and regulations that stated in the Statement?
Basically, the user routine, log in to their profile, then browse the news feed and press ‘Like’ to other users post. From the Statement of Rights and Responsibilities which deprived from Facebook Principle, it’s Facebook’s responsibility to govern the relationship with users and others who using Facebook. By accessing Facebook, this means that you have already agreed with the statements. Under the statement, users can set up their privacy settings for their profile details just visible to friends of friends or acquaintance.
Facebook also provided variety of privacy settings of posting issue, the user can set their post whether shareable for other users or not, limitation of the audience from viewing the post shared and you are able to block those users you wish to block. At a first glance for those statements, it seems like our user of rights are protective enough. In fact, we shouldn’t omit the potential threat of those stalkers. Apparently, if these people are real friends then should not be a worry, but what if they are not? What if they had already affected the target’s real life and constitute danger to the target?
Here lights up the issue such as sexual harassment, cyber bullying occur especially in our young adult users, they are the main user of SNS, and they should be protected by having their own rights to protect their privacy. Unfortunately, under the statement there are not any regulations that provide perfect solutions for stalking issue be mentioned. Therefore, here raise a possibility that it is inevitable for people that you may not know to look through your profile via mutual friends or ‘friend suggestions’, especially when we don’t know who they are, when they had looked through our profile as everyone is hiding out in the world of SNS.
So, what do a stalker did is they will usually set up a fake profile and they will add the target as ‘friends’. Then, they will look through the target’s personal information and the interaction of the target with other users to collect their daily routine and interpersonal. Furthermore, nowadays people have no qualms being nasty over the computer, they can simply attack and provoke others even strangers. This situation is obvious in the circle of young people. Experts have classified this as “cyberbullying”.
These abuse people they spew online are things that they will never say in the real life, people with lack of accountability has gave them the opportunities to misbehave and the speed of our information technology also make it easy to shoot off an insult without thinking wisely. They can make those offensive comments by using their real identity. They will not feel obliged to control their comments in SNS probably is because most of the people they met in there are strangers. The Public Order Act 1986 contains two offences relating to harassment: (1) Harassment, alarm or distress (s. ) (2) Intentional harassment, alarm or distress (s. 4A). Under Section 5(1), a person is found guilty of an offence if he- (a) Uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) Displays any writing, sign or other visible representation which is threatening, abusive or insulting.
The offence requires the prosecution to prove that the defendant intended or subjective reckless of the offensive appreciations might be threatening, abusive, insulting or disorderly. There is no requires of the ct of conduct must towards to an individual but the sight and hearing of a person must be taken into account likely to caused harassment. Look back our circle, these circumstances occurs anytime, anywhere in the world network. In the world of SNS, all the social rules and body languages are absent. What we say can be easily misunderstood by others without using ‘emoji’ to express emotions. So, is it possible to courts strictly criminalize the press ‘like’ and comment action in Facebook in order to protect user’s privacy?
Is it possible to criminalize posting offensive comments or status to avoid the unhealthy practice among young people? To able to give the answer, we need to review the aim of Facebook either SNS. People are being inhibit in their real life by all the rules and regulations and that’s why the SNS could yield such a ‘tornado’ in our 20th century, people craving for a individual place to spread their feeling, they longing of having their own corner that no one could really bother what they did and what they said. That’s what the SNS meant to be, Freedom and Transparency.
As a complementary, Article 8 in the Charter of Fundamental Rights of the European Union law (EU Law) states that (1) Everyone has the right to the protection of personal data, and that (2) Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. This has provided a protection for users privacies and confidentiality in SNS. However, it doesn’t seem like taking much effect in the circle of SNS because EU Law is only applicable to member countries of EU. There is no territory in the world of network; everyone in this earth can be connected as long as the network is connectable.
In the part of Canada, the section 264 in the criminal code of Canada had defined the prohibited behaviours of stalker as: 1. The stalker had repeatedly following the other person or anyone he know from place to place 2. The stalker had repeatedly communicating, whether direct or indirectly to the other person or anyone know to them 3. The stalker had besetting or watching the dwelling-house, or place the other person or anyone known to them, resides, works, carries on business or happens to be 4. The stalker had engaged in threatening conduct towards the other person or any relatives.
As a conclusion, stalking may not be happened intentionally but there could always make the other life get annoyed or feel danger, this issue let us has a more understanding to stalking it is not just happen in our real life yet in the social network system, we did normally don’t have the idea that what action we did in routine are actually could constitute crime. However it shouldn’t be the reason for avoid us from using Facebook, as long as we know our limits and take control on our mean side when online, we are one step nearer to the greater understanding and connection to the world.
January 9, 2018
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