31 January 2018

Navigating the nuts and bolts of cyberbullying and online harassment or defamation


Ushan Premaratne
Partner | Singapore

This article forms part of With…insights, our Asia Pacific thought leadership magazine., which showcases not only legal issues but also other interesting topics that matter to you. To read more please click here.

We live in a modern world where the use of information technology is essential for the success of businesses. An increasing number of businesses have a presence on social media and use a wide variety of online platforms to promote their products and services. However, while information technology has helped to promote business, it can also be used to harass or defame a business or an individual.

The Internet arguably has the widest reach of any form of communication. We have moved away from the traditional 'one-to-many'models such as print media, radio and television broadcasts to an interactive 'many-to-many' model, where social media and online platforms such as Instagram, Twitter, Facebook, Linkedin and YouTube have taken a lead role. This trend, coupled with the increase in the use of e-mail communication, has fuelled a rapid growth in information technology.

A new face for an old friend

Defamation and harassment per se are not new concepts and have existed long before the Internet. However, information technology has changed the way we perceive and react to such wrongful conduct. Further, the manner in which the Internet is designed and operates impacts how we handle and address bullying/harassment and defamation online. The key challenges are:

a. The Internet is vast –It is impossible for any individual or business to have access to all the information or content generated and shared by users online. This creates difficulty in the ability to identify defamatory statements made on the Internet and take appropriate steps in a timely manner.

Interesting facts:

  • There are over 1.9 billion active Facebook users as of March 2017 and statistics show that 500,000 comments are posted, 290,000 statuses are updated and 135,000 photos are uploaded on Facebook every 60 seconds!
  • On average, there are around 600 tweets every second and 500 million tweets per day in 2016.

b. The ease by which information may be disseminated on the Internet – The longer the defamatory statements remain online, the greater the risk and damage that the victim would suffer given the ease by which information may be shared, reposted and commented.
Interesting facts:

  • The false statement that Pope Francis endorsed Donald Trump to become the President of the United States had more than 950,000 Facebook shares, comments and reactions.
  • The false story 'Woman arrested for defecating on boss' desk after winning the lottery', which was reported on 'the Valley Report', had more than 1.75 million Facebook shares, comments and reactions. The false story provided a description of the woman, including a picture of her face.

c. The Internet provides users the advantage of anonymity – The use of the colloquial expression 'Internet troll' is common these days. These are individuals who remain anonymous or use a fictitious identity to maliciously publish statements online or engage in cyberbullying/harassment. Consumer reviews which are maliciously published on websites such as Yelp, TripAdvisor, HungryGoWhere and Booking.com are a good example. The challenge for businesses is that these reviews may negatively impact how consumers view a particular business or a service provided.

Interesting facts:

  • In 2015, £23 billion of consumer spending in the United Kingdom was influenced by online reviews and half of all adults in the UK used reviews to make buying decisions.
  • It is expected that there are over 80 million Facebook accounts that are fake and dupes.

Checklist for victims of online defamation or cyber-bullying/harassment

1. Ascertain identity of the perpetrator

Most perpetrators do not reveal their true identity when engaging in wrongful conduct via the Internet. It is therefore necessary to identify the identity of the perpetrators before deciding the necessary steps to be taken.

a. Engaging the person to gather more information about him/her. This information may allow for an educated guess as to the identity of the person. For example: whether this individual is an ex-employee/ colleague, a competitor or party with a vested interest in damaging one’s reputation.

b. If the perpetrator has published defamatory statements, via online platforms or using an e-mail account, it may be possible to obtain the necessary information about the identity of the perpetrator from the relevant service providers. Generally, service providers such as Google, Singtel or Facebook will only disclose personal information relating to the perpetrator if there is a court order. There is always the risk that the information provided to the service provider when opening the e-mail account or social media account was fictitious. In most cases, however, the victim is able to obtain at least one or two pieces of useful information, such as an active mobile number or the date of birth, which assists in the ability to identify the perpetrator or at the very least narrow down the possible identity of the perpetrator.

2. File a report with the police

This should be done even if there is no expectation that criminal proceedings will actually follow. The police have much wider powers and under certain mutual legal assistance treaties between Singapore and other countries, they may be able to identify perpetrators and act more quickly.

The existing legislation, in particular, the Prevention from Harassment Act, safeguards individuals and businesses from online defamation, harassing conduct on the Internet and related antisocial behaviour. Any perpetrator who is found to have breached this Act may face both criminal and civil penalties.

3. Engage an online reputation firm

Online reputation firms have at their disposal search engine optimisation software that can help to identify and remove defamatory statements and negative content from the pages generated by search engines. They are able to assist where there is a real likelihood that the online statements have been shared on various social media platforms.

4. Record and log pertinent information

As far as possible, all instances of contact (by whatever means) or online postings when noticed should be recorded or logged. The easiest method is to take screenshots. It may be a cumulative course of conduct on the part of the perpetrator which ultimately justifies the imposition of criminal or civil penalties. Further, it is difficult (and sometimes impossible) to access historical material from social media platforms. For example: Instagram stories disappear after 24 hours and posts on Twitter and Facebook could be edited at any point in time.

5. Preserve vital evidence

There may be a need to avoid closing social media accounts or deleting online posts before consulting the police or a lawyer to prevent the loss of vital evidence. This can be a difficult decision to make in certain circumstances as the harassment or publication of defamatory statements may only continue if the victim's social media account remains active or posts are available on the Internet.

6. Consider the potential risks of commencing legal proceedings

It is important to carefully consider the potential risks of proceeding to court in relation to claims regarding defamatory statements or cyberbullying/harassment. These include:

a. Public record – legal proceedings are usually a matter of public record and more people would become aware of the defamatory statements. These people may not know the full story and whether or not the statements complained of are true or false.

b. Media and public scrutiny – The media may take an interest in the legal proceedings and it is impossible to control the manner in which the matter is reported and the public scrutiny that may arise as a result.

c. Public access to intimate and personal matters – If the cyberbullying or defamatory statements relate to very intimate or personal matters, the victims may not want to subject themselves to that much embarrassment. For example: the perpetrator had published nude or compromising pictures of the victim on the Internet.

d. Legal defences – There is the hurdle of showing that the statements complained of are defamatory or the conduct amounts to harassment. This is not always straightforward and the law provides several defences to resist claims for defamation (such as qualified privilege or fair comment) or harassment (such as conduct was reasonable or there was no reason to believe that the words used would be heard, seen or otherwise perceived by the victim).

Conclusion

There is no doubt that the Internet and social media have revolutionised the way we communicate with one another. It is, however, important that individuals and businesses recognise the myriad of ever-lurking challenges that accompany the use of social media and bear in mind the need to carefully navigate these challenges to prevent, avoid and stop persons from using online platforms to engage in online defamation or cyberbullying/harassment.

A version of this article was first published on asialawnetwork.com

Ushan Premaratne Partner, Withers KhattarWong* | Singapore

Category: Article

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