Online Bullying and Online Harassment: Criminalization, Criminal Enforcement and Alternative Enforcement

By: Haim Wismonsky

The Cyber-Space, especially in the age of social networks, is full of a wide range of publications, and any internet user can become a speaker, free of charge and swiftly. The amount of content that is published by the users in the Cyber-Space is larger than ever, and is incomparable to the amount of content that has been published in the past, when the media was based on central publishers, who were using their editorial judgment and spreading the content on the basis of one-to-many. 

Alongside the positive and the protected online content, different harmful publications grow as well, including publications – on which this research wishes to focus on – that may consist as cyber-bullying or online harassment. It will be noted that it is highly important to differentiate between online bullying or harassment and other unpleasant publications. It is obvious that not any content that is critical, shaming or offensive should be considered as bullying or illegal harassment. The constitutional protection of freedom of speech protects shameful expressions, when they are not bullying of harassing. However, recurrent expressions, that are degrading and humiliating, meant to harm the victim's dignity, his right of privacy or other protected rights, when published to the public, and are essentially a "man hunt" - these are the expressions that pose the question of whether legal measures should be taken in order to reduce the harms they cause.

How should the law react to publications that consist bullying or harassment? Are these publications forbidden under today's legal provisions? Should they be criminalized? How is it possible to enforce a legal provision that will forbid their publication? Is criminal enforcement the solution to these problems? And if so – under which conditions? These questions and others will be the focus of the proposed research.

The proposed research will introduce the phenomena of cyber-bullying and online harassment. As I will show, everyone might become a victim of cyber-bullying or online harassment. Nonetheless, minors are often considered as a specific risk group when it comes to cyber-bullying, both in terms of the amount of harmful content that is being addressed against minor and in terms of the potential damage that this content may cause. Furthermore, at least in Israel, it is possible to point out a unique phenomenon of online harassments against civil servants. Policemen, social workers, state attorneys, judges and medical teams – are all experiencing harmful publications directed at them, some of course are legitimate criticism towards the administrative branch of government, but some are meant to weaken the civil servant and prevent him or her from preforming their official duty by a manner of harassment.

In the proposed research I will first focus on the Israeli legal system and examine the existing legal provisions regarding harmful publications online. As I will show, the Israeli law does not address the issues of cyber-bullying or online harassment directly, but it partially covers the phenomena by using different legal provisions that were originally meant to tackle other phenomena. Thus, for example, it is possible to partially implement the general provisions of the Anti-Defamation Law on the discussed issue, or the Protection on Privacy Act, the Prevention of Sexual Harassment Act and more. Alongside the analysis of the legal status in Israel, I will explore the ways other jurisdictions have tackled cyber-bullying or online harassment around the world.

Next I will examine, from a normative stand point, is it appropriate to directly criminalize the phenomena of cyber-bullying and online harassment, based on the severity of the phenomena, and based on the argument that the use of existing legal provisions, that were not originally meant to deal with the new phenomenon – may lead to the extension of the old provisions' boundaries in a way that may undermine the legality principle. The research will support a direct criminalization of cyber-bullying or online harassment, and will offer the conditions and circumstances that should apply for such criminalization. The offensive publication will be considered as an offence based on aggregative circumstances where each one on itself does not consist an offence, but the accumulation of all of them together does consist an offence.  The special circumstances of online publication, that is distributed broadly online and on social networks, that may spread the expand anytime and which can stick to the victim and harm his online identity for a long period of time – all these and more constitute the basis for the criminalization of cyber-bullying and online harassment.

Finally, the proposed research will address the issue of enforcement of the criminal provision of cyber-bullying or online harassment. The legal-technological characteristics of the Cyber-Space form substantial difficulties for criminal enforcement. The ability to detect the suspect, gather admissible evidence against him and indict him – is limited in the legal-technological framework that is characterized in multi-territoriality, anonymity, decentralization, encryption and such characteristics. Thus, additional enforcement steps should be examined alongside criminal indictment, mainly the use of legal measures to reduce the distribution of the forbidden publication. These measures are focused on the offence, and not on the offender, and try to prevent the continuation of the execution of the offence by measures like content removal, filtering search results, suspending offending users from the platform and more. Obviously, alternative enforcement measures pose challenging legal questions, regarding the justification to prevent an expression, which the fact that it is forbidden by law has not yet been established in an adversarial legal procedure, and the proposed research will examine these questions as well. 

Read the Full Paper (Hebrew)