Online bullying is, self-evidently, a phenomenon that has only been able to exist since the rise of the publicly available internet. The existence of “doxing” has followed it. Doxing (or Doxxing, Docx), for those who don’t know, is a shortened form of the word ‘documenting’ and is the practice of outing somebody online, usually by linking to the person’s photographs or identity in some way.
It is not always motivated by malice. The net provides a convenient cloak of anonymity for those who seek to dissemble. Few of us could have failed to laugh when Mary Beard received a snivelling apology from a no-longer-brave young man faced with having his tweet shown to his mother, and it will rarely be against the public interest to discover that a brand advocate is actually employed by said brand.
It becomes sinister when it is used as a tool to attack private individuals who have done nothing more offensive than exist.
In what has been dubbed the “TERF-wars”; where trans-exclusionary radical feminists, trans-inclusionary feminists and trans-activists have come to blows on Twitter – often over subjects such as women-only spaces and equalities law – the lines between debate and abuse often become very confused, with both sides accusing the other of abuse. The legal tipping point between the two is discussed below, although the moral high ground is obviously a different matter.
Many feminists find the term “TERF” offensive and the word “cis” – a Latin prefix used as the opposite of “trans” – uncomfortable. There is no right not to be offended, so a person who dislikes the terms is unlikely to be able to make out a legal case to prevent it. Insisting on calling someone “cis” or “TERF” if they do not like it or identify with the term is rude, probably bullying, but unless it is used deliberately to cause distress, which would be hard to prove, it is unlikely to be illegal. Similarly, deliberate misgendering would in most cases be considered obnoxious rather than unlawful. There is no hard line definition of what is offensive; that is considered on a case by case basis according to what the “reasonable” person would think.
It goes without saying that there is no remedy in criminal or in civil law for someone putting forward a viewpoint with which one disagrees. As with all online debate, holding an opposing position is not in itself abuse or bullying. So, for example, there is no possible legal way to prevent “trans-critical analysis”, which theorises the non-existence of transsexuals, no matter how hurtful it may be to a person reading it. However it is very often within this context that doxing occurs which is often used in the online bullying of trans people.
Doxing is by no stretch of the imagination a simple analysis problem. It has involved deliberate targeting of individuals in a way designed to intimidate them, including vulnerable people (minors) who could in no way be said to have raised their heads above a theoretical parapet.
It is a sad truth that the application of the law cannot force anybody to be right. However, the law does provide some protection to the victims of bullying no matter what views you hold. Here’s a slimmed-down synopsis of how.
The Public Order Act
The Public Order Act of 1986 makes it a criminal offence to use threatening, abusive or insulting words or behaviour, either with intention to cause harassment, alarm or distress or in the presence of someone who might be caused harassment, alarm or distress. Equally, it is an offence to ‘display’ such words or behaviour. In 1986 that meant on a wall, placard or similar, but it could equally apply to Tumblr or Twitter in today’s terms.
It is a defence to show that the conduct was reasonable or that the person doing it had no reason to believe that anybody would actually see it.
Sending malicious communications
The Malicious Communications Act 1988 makes it a criminal offence to send any article which is indecent or grossly offensive, or which conveys a threat, or which is false, provided there is an intent to cause distress or anxiety to the recipient. The offence covers letters, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings.
The offence is one of sending, delivering or transmitting, so there is no requirement for the article to reach the intended recipient.
In 2007 the court considered whether a political or educational motive would be a defence (when applied to a woman who was sending graphic photographs of aborted foetuses as part of an anti-abortion campaign.) It was not held to be a defence and any restriction on freedom of speech was justified by everyone else’s right not to be victimised.
The CPS use the term harassment to cover the ‘causing alarm or distress’ offences under section 2 of the Protection from Harassment Act 1997 (PHA), and ‘putting people in fear of violence’ offences under section 4 of the PHA. Harassment is not specifically defined, but it can include repeated attempts to impose unwanted communications and contacts upon a victim in a manner that could be expected to cause distress or fear in any reasonable person. It would be difficult to prove that doxing someone (without notifying them) constituted harassment of that individual, but the CPS guidance states that:
“Closely connected groups may also be subjected to ‘collective’ harassment. The primary intention of this type of harassment is not generally directed at an individual but rather at members of a group. This could include: members of the same family; residents of a particular neighbourhood; groups of a specific identity including ethnicity or sexuality, for example, the racial harassment of the users of a specific ethnic community centre; harassment of a group of disabled people; harassment of gay clubs; or of those engaged in a specific trade or profession.”
This could undoubtedly be applied to an individual (or small group of individuals) harassing a group by doxing them, if the doxing is targeted at members of a particular group.
Doxing: outside the criminal law
Of course, although the CPS have an impressive policy on hate crime, the system is not always interested in what are perceived to be online spats and although, in my view, the system will increasingly recognise that offences can and do occur in the virtual world, the civil law may also be of more immediate interest.
The Equalities Act 2010 protects people with certain characteristics (race, sex, disability, gender reassignment, religion, pregnancy, marriage, sexual orientation and age) from discrimination, harassment or victimisation. Article 8 of the Human Rights Act 1998 guarantees a person’s right to privacy (unless there is a very good reason). A private individual cannot be sued under either the Equalities Act or the HRA, but public bodies can be (and in the case of the Equalities Act, so can private members’ clubs, associations, employers and service providers).
This means that doxing someone out of malice would be unlawful if it is done by a tabloid – but not if it is done by an individual. However, if it is published by an online publication, it is worth looking at whether that publication is an association or service provider. If so, there may be a remedy in civil law for damages.
One final possibility would be to sue the bully in tort. Tort is a legal concept whereby a person who is harmed by another can claim damages. It is self-evident that doxing would foreseeably cause harm, from distress to actual psychiatric injury. As far as I can tell, nobody has ever attempted to use this route as a remedy for outing or doxing, but it appears that if a person were caused harm by another’s actions in doxing them, they may well be entitled to damages. A precedent for civil damages could prove more of a deterrent than the threat of criminal action.
Julian Norman is a barrister, professional law nerd, feminist and writer. Follow her @londonfeminist
Photo: Maryland Gov Pics
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