How can businesses protect their staff, brand reputation and security when threats and/or statements are posted online? In particular, how can damage to the business through use of electronic media be prevented?
Cyber bullying and stalking
As businesses reach out to their customers through electronic and social networking media, a greater range of activities are taking place in this environment.
The same media is also being used by those intent on causing damage or distress to businesses and their employees, often anonymously.
Activity may range from the sending of text messages or emails to individuals in the business concerned, or posting material on social networking sites or websites with the intention that it will have an adverse effect.
The question is what can be done when networking becomes anti-social? What happens when a complaint handled by the customer service team boils over into an online vendetta? What can be done about anonymous online postings which seek to intimidate or cause alarm to employees? Where brand reputation and security need to be protected, how can damage to the business through use of electronic media be prevented?
Harassment is both a civil tort and a criminal offence under The Protection from Harassment Act 1997 (PHA). There is currently no legislation dealing specifically with online harassment.
PHA provides that a person must not pursue a course of conduct which amounts to harassment of another or others and which he knows, or ought to know, amounts to harassment of that person or those others.
A course of conduct must involve conduct on at least two occasions in relation to a course of conduct aimed at a single person or on at least one occasion in relation to conduct aimed at two or more persons. The PHA does not define harassment, but states that references to harassing a person include alarming the person or causing them distress.
Distinction is drawn between conduct which is unattractive and unreasonable and conduct which has been described in various ways such as 'torment' of the victim'. Irritating, annoying and even upsetting conduct would not necessarily be a breach of the PHA.
To cross the boundary into the unacceptable, the severity of the misconduct must be of an order which would sustain criminal liability under the PHA. What is oppressive and unacceptable depends on the social or working context in which the conduct occurs. For instance, where a professional man's integrity was deliberately and wrongly attacked, a potential claim lay under the PHA.
As a note of caution, the PHA has been used successfully by individuals seeking to protect themselves from apparently over-zealous credit collection activities.
Civil action against a third party would usually involve first obtaining an interim injunction to restrain the activity complained of, and secondly a claim for damages for the resulting anxiety and any financial loss (section 3(2)). If the defendant contravenes the injunction, the claimant may apply for an arrest warrant.
The PHA was intended to provide remedies to individuals. Companies cannot be the victim of harassment and could not bring a claim under the Act to protect itself. It follows that corporate claimants themselves are not entitled to injunctive relief. In cases where there has been intimidation of a group of workers the PHA has, in the past, been taken by senior managers to bring proceedings on their own behalf and in a representative capacity on behalf of the company's employees with whom they there was a common interest in the proceedings i.e. not to be harassed.
Under the PHA an employer can be held liable by an employee for acts of harassment by other employees, but under this legislation it is not liable for the acts of individuals outside of the workplace. Currently, the Equality Act 2010 provides that an employer might be liable to its employees for this activity.
Harassment under the Equality Act 2010
Under Section 40(2) to (4) of the EqA 2010, employers are liable for the harassment of their employees by third parties, such as customers or visitors in the following prescribed circumstances:
- a third party harasses the employee in the course of the employee's employment
- the employer failed to take such steps as would have been reasonable practicable to prevent the third party from doing so
- the employer knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party (whether or not the third party was the same person on each occasion)
The Government has issued a consultation regarding removal of the imposition of vicarious liability upon employers for third party harassment by the EqA 2010, as there are other means of redress available through employment law. Following consultation, The Government intends to repeal the third party harassment provisions.
Dealing with the anonymous
Invariably, anonymity is used to cloak those posting offensive or defamatory material.
However, that should not deter action, as the courts can be used to require a website operator to disclose the source of defamatory or derogatory material by way of a Norwich Pharmacal order. This order compels the disclosure of identity of the source of derogatory or defamatory material against anyone who, albeit innocently, becomes involved in the wrongful act of another.
Such an order received widespread media attention this month, having been obtained by Nicola Brookes against Facebook for disclosure of the identity of various internet 'trolls' who had been targeting her.
It is now generally accepted that defamatory statements on web pages are to be regarded as libel, not slander.
The difference between the two is important, because to succeed in slander it is often necessary to prove that there has been some actual financial loss. This is not necessary for libel. It should be noted that a libel claim does not preclude a claim in harassment.
The different courses of action are directed to protecting different aspects of the right to a private life. A claim in libel is directed to protecting the right to reputation. A claim in harassment is to protect people from being subjected to unjustifiable alarm and distress.
The primary objective for businesses affected by defamatory online statements is not damages or financial recompense but the removal of defamatory statement or material.
Section 1 of the Defamation Act incentivises web site operators, internet service providers ("ISPS") and other intermediaries who could otherwise be liable for publishing a defamatory statement on the internet.
Provided an intermediary acts to remove the allegedly defamatory postings as soon as they are put on notice of their existence - under what is known as a 'notice to take down' procedure - then they may secure protection from being involved in an alleged defamation.
Provided it can be shown that:
- he is not the author, editor or publisher of the statement being complained of
- he took reasonable care in relation to its publication
- he did not know and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement (section 1(1)(a)(b) and (c), Defamation Act) 1996)
Once content is removed, the ISP will then be able to investigate the merits of the allegations, or assess whether it has alternative defences available.
Changes are set to take place in this arena. The Defamation Bill was announced in the Queen's Speech in May 2012 and includes a new process intended to shield operators of websites hosting user generated content from defamation.
To have the benefit of a defence they would need to provide a mechanism to enable a complainant to resolve any dispute directly with the author of the material concerned.
The procedure would involve service of a notice and the website operator specifying the complainant's name, the statement complained of, and explanation of why it is defamatory and details of where it is located on the website.
The defence would be defeated if the operator fails to respond to the notice, provided that it is not possible for the complainant to identify the person who posted the statement.
In some cases, the harassment complained of will be such a degree or the content issued will be so offensive that police involvement will be necessary.
As a criminal offence, harassment under the PHA is punishable, on summary conviction, by six months imprisonment and/or a fine.
The Malicious Communications Act 1988 provides that it is an offence to send an electronic communication with the intention of causing distress or anxiety to any person to whom it is intended that its contents or nature should be communicated.
The Communications Act 2003 provides that an offence is committed by a person who sends or causes to be sent over a public electronic communications network a message or other matter which is 'grossly offensive or of an indecent obscene or menacing character' and by a person who sends or causes to be sent with the purpose of causing annoyance, inconvenience or needless anxiety to another a message which is known to be false. These offences are punishable by imprisonment or by a fine.
What does all this mean?
- businesses need to be vigilant
- ensure that there are adequate procedures in place for the protection of their staff from potential harassment and that these are complied with
- be vigilant regarding internet comment that may have potential to harm the reputation of the business
- use the Notice and Take Down Procedure to protect brand and reputation
- pursue anonymous postings if necessary
- obtain legal support and advice if necessary