What is cyberbullying?

Cyberbullying is repeated activity using information and communication technology, such as social networking sites, instant messaging, or SMS text messages, for deliberate, repeated, hostile behaviour by an individual or group targeting another person or persons with intent to harm. Cyberbullying usually takes the form of harassment, intimidation, denigration, threats, impersonation, or rumours and falsehoods intended to damage reputations or friendships.

The term "cyberbullying" is normally used in cases in which a child or a teenager is targeted by another child or teenager or by a group of children or teenagers. If the victim and perpetrator(s) are adults, the conduct is more properly referred to as cyber-harassment or cyber-stalking.

Cyberbullying is characterised by repeated physical or mental harassment through information and communication technology systems. It can involve false accusations, threats, identity theft, damage to data or equipment, solicitation for sex, gathering information in order to harass, or sharing images of a person in an embarrassing situation without their permission. Sometimes cyberbullies impersonate their target and set up website accounts in the victim’s name. These accounts are then used to make harmful comments about the victim’s friends on social networking sites or in chat rooms. The very nature of the Internet enables malicious information to be spread quickly and widely. Though similar in some ways to conventional playground bullying, cyberbullying is permanent, as information placed online can be difficult or impossible to remove completely.

Cyberbullying can result in the victim experiencing fear, and suffering depression and loss of self-esteem. In the most serious cases, the victim of cyberbullying may be driven to commit suicide,  particularly when a number of people gang up to persistently ridicule, belittle or demean the victim, and especially when the bullying involves allegations of sexual conduct.

Responding to cyberbullying

There is at present no separate statutory law in Hong Kong which directly addresses or governs cyberbullying . However, all bullying activities (cyber or not) are governed by relevant legislation if they involve criminal offences.

Whether or not to prosecute for a criminal offence is a matter for the police to decide. The main determining factor is whether the evidence provides a reasonable prospect of obtaining a conviction in a particular case. In a criminal prosecution, guilt must be proved beyond reasonable doubt. A prosecution does not automatically result from an alleged criminal offence.

Civil remedies are not effective in protecting victims of cyberbullying, except in the most exceptional cases, particularly because of the costs involved in bringing a civil action and the practical problems faced by an unrepresented litigant, especially if the victim is under 18 years of age.

Threatening injury to person, reputation or property (criminal intimidation)

Under section 24 of the Crimes Ordinance (Cap. 200) cyberbullies commit an offence if they threaten another person with injury to their person, reputation or property, or with any illegal act with intent to alarm the person so threatened or to cause that person to do something they are not legally bound to do, or to cause them not to do something they are legally entitled to do. This offence is punishable upon summary conviction by a fine of $2,000 and two years’ imprisonment, and upon indictment by imprisonment for five years.

Section 24 of the Crimes Ordinance addresses a wide range of threatening conduct, the common factor of which is intention to alarm the person to whom the threats are made. The threats themselves constitute the offence even if they are never implemented. Section 24 provides possible protection against cyberbullies, but it is cumbersome and requires identification of the bully and prosecution by the police, which depends on the sufficiency of evidence in the particular case.

Criminal Damage

Under section 60 of the Crimes Ordinance (Cap. 200), a person who without lawful excuse intentionally destroys or damages any property belonging to another person or is reckless as to whether any such property is destroyed or damaged is guilty of an offence.

In HKSAR v Ko Kam fai, which involved charges of criminal intimidation, as well as charges of criminal damage, the defendant hacked into the e-mail accounts of his two victims and changed some data in their computers. As a result of the large number of emails he sent them, their e-mail accounts were overloaded to the extent that they became inoperative. His actions amounted to criminal damage, as the computers ceased to operate as a result of his activities. The principles in this case would apply to cyberbullies who bombard their victim with e-mails, or hack into their computers causing them to malfunction or become inoperative, even if this is of short-term duration.

Procuring unlawful sexual acts by threats

The cyberbully’s objective may sometimes involve more than simply threatening, alarming or intimidating the victim. The purpose may be to compel the victim to submit to an unlawful sexual act which would otherwise not occur. Procurement by threats contrary to section 119 of the Crimes Ordinance is committed where a person procures another person by threats or intimidation to do an unlawful sexual act in Hong Kong or elsewhere. Procurement by threats is punishable by imprisonment for 14 years.

According to section 117(1A) of the Crimes Ordinance, an unlawful sexual act is committed if, and only if, that other person:
(a) has unlawful sexual intercourse;
(b) commits buggery or an act of gross indecency with a person of the opposite sex with whom that person may not have lawful sexual intercourse; or
(c) commits buggery or an act of gross indecency with a person of the same sex.

Unlawful sexual intercourse for the purposes of section 119 of the Crimes Ordinance is sexual intercourse for which there was no consent. Sexual activity obtained by threats or intimidation is not consensual. It involves submission rather than consent. Procurement means to get by special effort, to bring about, to acquire, or obtain something that otherwise would not be acquired or obtained.

HKSAR v Wong Dawa Norbu Ching Shan is a good example of a section 119 offence. The victim engaged in unwanted sexual intercourse with the defendant because of his threats to publish a nude photograph of her on YouTube and Facebook, and to send the photograph to her boyfriend. A similar situation involving a defendant threatening to post nude photographs of the victim on the Internet unless she agreed to have sexual intercourse with him arose in HKSAR v Liang Fu Ting. As a result of the defendants’ threats, the victims engaged in unwanted sexual intercourse with them.

Section 119 of the Crimes Ordinance overlaps with blackmail contrary to section 23 of the Theft Ordinance. In cases such as Wong Dawa Norbu Ching Shan and Liang Fu Ting, a section 119 charge may well be the most appropriate charge. Though involving adults, both cases are examples of cyberbullying, as the defendants engaged in a persistent course of conduct through the Internet to wear down their victim to procure unwanted sexual intercourse. Section 119 is, however, limited to the procurement of the unlawful sexual acts set out in section 117 (1A) of the Crimes Ordinance and is much more narrow than section 23 of the Theft Ordinance, which is discussed below.

Offensive telephone calls

The bullying may sometimes take the form of persistent, offensive telephone calls. Section 20 of the Summary Offences Ordinance (Cap. 228) may provide some protection from such calls. It is an offence punishable by a fine of $1,000 and imprisonment for two months for a person to send any message by telegraph, telephone, including mobile phone, or other wireless telegraphy which is grossly offensive, indecent, obscene or menacing. It is also an offence under the section to send any message known to be false to annoy, inconvenience or cause needless anxiety to any other person or to persistently make telephone calls for any of those purposes without reasonable cause. Section 20 potentially affords protection from cyberbullies who indulge in the conduct covered by the section. Section 20 is, however, limited to telegraph, telephone and wireless telegraphy, and it is fact specific. The message must be grossly offensive or of an indecent, obscene or menacing character. This imports a high standard of proof, which is not always attainable.

Blackmail

Blackmail contrary to section 23 of the Theft Ordinance (Cap. 210) may be committed when cyberbullies, with a view to gaining something for themselves or others, or with intent to cause loss to others use information and technology systems to make unwarranted demands with menaces. Demands with menaces are unwarranted, unless persons making them do so in the belief that they have reasonable grounds for making the demands and that the use of menaces is a proper means of reinforcing the demands. Blackmail is punishable on conviction upon indictment by imprisonment for 10 years.

Blackmail is committed by cyberbullies who, for example, have had video recorded sexual intercourse with the victim, whom they then send messages through information and technology systems demanding more intercourse or money to refrain from putting the video into circulation. An example of this situation, though involving adults, is HKSAR v Chai Mei Kwan, which resulted in 20 months’ imprisonment with the defendant’s plea of guilty. After having sexual intercourse with the victim, the defendant sent him SMS messages demanding money. In another SMS, she told him there was a video of their intimacies, which could be distributed to “everyone”. In sentencing Deputy District Judge Joseph To remarked “There are two aggravating factors in this case. Firstly, the defendant did not just utter empty words; she had equipped herself with the video clip showing her and the victim in compromising circumstances. Secondly, the threatened means of dissemination via the computer must have filled the victim with alarm; it is common knowledge that the Internet knows no borders and once uploaded information is difficult to erase.”

Possession of child pornography

Section 3(3) of the Prevention of Child Pornography Ordinance (Cap. 579)(PCPO) provides that any persons who have in their possession any child pornography commit an offence and are liable —
(a) on conviction on indictment to a fine of $1,000,000 and imprisonment for 5 years; or
(b) on summary conviction to a fine of $500,000 and imprisonment for 2 years.

Under section 2(1) of the PCPO, a “child” is a person under the age of 16. “Child pornography” means —
(a) a photograph, film, computer-generated image or other visual depiction that is a pornographic depiction of a person who is, or is depicted as being, a child, whether it is made or generated by electronic or any other means, whether or not it is a depiction of a real person, and whether or not it has been modified; or
(b) anything that incorporates a photograph, film, image or depiction referred to in paragraph (a); and(c) includes data stored in a form that is capable of conversion into a photograph, film, image or depiction referred to in paragraph (a) and anything containing such data.

HKSAR v Kwok Po Lun [2013] HKDC 402 and [2013] HKDC 400 illustrates the scope and effect of section 3(3) of the PCPO. Cyberbullies who intimidate a child into posing naked or engaging in any other sexually explicit conduct, records such conduct with a camera and stores the images in their computers potentially commit an offence under section 3(3) of the PCPO. Though there are a number of defences to a charge in section 4 of the PCPO, none of them would apply to cyberbullies who intimidate a child into sexual activity, record that on a webcam and store it in their computers.

Civil procedures

Where cyberbullies commit a civil wrong, such as intimidation, trespass or defamation, in carrying out their campaign of harassment, the victim may bring a civil suit, including a claim for an injunction, in tort. A successful action in tort will result in an award of damages, and an injunction may be granted to prevent a repetition of the harassment.

As the term “cyberbullying” is used when the parties involved are children or teenagers, actions in tort are generally not an appropriate response to cyberbullies. Victims under 18 years of age cannot start proceedings in their own names, so the proceedings are conducted in the name of the victim’s next friend, usually the parent. Questions arise as to whether the next friend has the time, resources, competence and capacity to pursue the proceedings. Retaining a solicitor to conduct the proceedings is expensive unless Legal Aid can be obtained.

The tort of intimidation

The tort of intimidation covers cases in which harm is inflicted on the victim when the accused intimidates the plaintiff or a third person, and the plaintiff or third person is compelled to act or refrain from acting to obey the demands of the accused. It is an inexact remedy for victims of cyberbullying, as there must be evidence of intention to coerce the person to whom the threat is addressed into doing or not doing a specified act. Simply contacting the victim, sending damaging or demeaning messages, or spreading untruths is not of itself coercion.

The tort of defamation

Defamation occurs where the accused harms a person’s reputation by spreading false information about the person to a third party. Defamation which occurs as unrecorded speech is actionable as slander. Slander is generally actionable only on proof of actual damage to the victim’s reputation. However, slander alleging any of the following does not require proof of actual damage: having committed a crime punishable by imprisonment, having a contagious or infectious disease, lack of chastity, committing adultery, or incompetence or unfitness for any office, profession trade or business.

Defamation that is permanent, for example, in written form in a book or newspaper, or on a website, is libel. The essence of libel is that it harms someone’s reputation,  diminishing it in the minds of right-thinking members of society. The person libelled must be identified, and the libel must have been communicated to a person or persons other than the person libelled. Posts on a website, for example, falsely alleging that a female is a prostitute or falsely alleging that someone has committed a criminal offence, or is otherwise dishonest or untrustworthy are libellous.

The remedy for libel is monetary compensation and, where appropriate, an injunction to prevent repetition. Truth and fair comment are defences to libel. Fair comment is genuine criticism as opposed to a personal attack. Innocent reproduction of a statement without knowing what it was can also be a defence to libel. With the tort of defamation, there is the added consideration that Legal Aid is not available, irrespective of the victim’s financial situation.

Individual protection against cyberbullying

Essentially, this comes down to the responsible use of information and communication technology by individual users. Children and teenagers must pay attention to personal security on the Internet. The following advice should be considered:

• Use privacy settings to restrict access.
• Avoid posting personal or sensitive information that might be used by a cyberbully.
• Be careful about what information you reveal in chat rooms, restricting it to information you are comfortable with revealing, and before you post, carefully consider whether and how it might be used by a cyberbully.
• Restrict the amount of personal information you give out, and block persons whom you do not know or whom you instinctively feel are not trustworthy;
• Be wary of agreeing to meet persons you know from the social networks. I If you decide to meet them, do so in a public place and take along someone trustworthy.
• Avoid indulging in sexual displays through information and communication technology. Once these pictures are online, cyberbullies have more material to work with and the pressure increases. This can lead to demands to meet and to engage in actual sexual activity with the bully.
• Do not put personal information online, such as age, gender  or address . Check regularly to be sure there is no information online that could be used to harm you. Not replying to cyberbullies can lead to their losing interest. Bullies thrive on responses from their victims. Your lack of response can defuse the situation.

Cyberbullying should be reported to parents, teachers or school counsellors. Reporting the bullying to the police, either by the victim, the parents or the school, may result in a criminal prosecution, assuming that the bully can be identified and that there is sufficient evidence that the conduct falls under a relevant criminal offence. Abusive or threatening e-mails, messages or other posts should be kept, as these can provide useful evidence for both the bullying and the identification of the bully.