Deputy Inna Gardiner was sent a Facebook post last month that branded her ‘a filthy NIMBY’ and called upon her to ‘please die of Covid’.
Similarly, Senator Sam Mézec has recently stated that he has been threatened, both online and in person, by a man who told him to ‘be very careful of ur next steps’.
As Senator Mézec and others have noted, Jersey already has laws that are capable of being applied to at least some online harm and threatening behaviour in person: for instance, there is a criminal offence dealing with the sending, by means of a telecommunication system, of a grossly offensive, indecent or menacing message or other matter.
Similarly, there is a harassment offence designed to deal with those who pursue an unacceptable course of conduct, whether in person or online, that amounts to harassment of another.
The Chief Minister has taken the view that everyone in Jersey would benefit from ‘greater clarity’ around what is legal and illegal in the context of cyberbullying. Further, he has stated that he is instructing officers, in consultation with the police, to provide such guidance. This guidance is potentially useful in terms of informing members of the public and those involved in law enforcement about the law. However, it needs to be noted that it will not bind the courts, who have the role of interpreting and applying the law.
The offence of harassment has been ‘cut and pasted’ from English law, where its application has not been straightforward. English case law has sought to clarify the level of conduct required here, eventually settling on a need for ‘oppressive and unacceptable conduct’ rather than ‘grave’ and ‘fairly severe’ behaviour.
A Jersey case similarly indicates that the level of conduct must be ‘oppressive and unacceptable’. However, opinions will vary as to what is oppressive and unacceptable rather than merely unreasonable or ill-mannered conduct.
The law cannot, and does not, criminalise all behaviour that is ill-mannered.
What might help here is detailed and clear illustrations of harassment, as established through case law. Nonetheless, the law needs to be flexible enough to cope with a range of situations: it is not possible for any legislation to contain a complete list of precisely what is legal and illegal. An element of discretion must be left to the court.
Senator Mézec has rightly stated that ‘it is perfectly acceptable to challenge States Members on their political views or policies’, but that bullying and threats are unacceptable.
European Court of Human Rights case law indicates that the limits of acceptable criticism are ‘wider with regard to a politician acting in his public capacity than in relation to a private individual’, since politicians choose to lay themselves open to political scrutiny. However, human rights case law recognises that politicians are entitled to a certain level of protection. This is vital. As Senator Mézec points out, politicians are ‘human beings and we are not immune to abuse or threats, which will affect … mental health and wellbeing.’
There is the question of how best to educate the public about what is unlawful. The States of Jersey Police website already has information about offensive messages and posts on social media, as well as links to relevant legislation.
While this is useful, since members of the public might consult this website if they believe that they are the victim of a crime, a much wider education campaign is arguably in order here, possibly involving advertising directed to the public and education in schools.
The many people who believe, incorrectly, that they can say what they like online ‘because it’s my opinion’ and ‘just words’ are unlikely to consult the States of Jersey Police website, or indeed any website, to check the law on this point.
It is also important to bear the big picture in mind here. Cyberbullying in the form of criminal conduct is just one form of online harm.
There are others: for instance, defamation, invasion of privacy, contempt of court by publication, and reporting restrictions, all of which are in need of a significant update in Jersey.
It might be time for a review of all laws affecting online communication, rather than simply providing further guidance on existing laws.
Professor Claire de Than is, among other things, vice-chairwoman of Enable Jersey and the chairwoman-elect of the Jersey Law Commission. Her current work includes a pilot scheme on inclusive justice as part of the Disability Strategy for Jersey, and drafting a Criminal Code for Jersey.
For more comment and opinion pieces, see today's Jersey Evening Post.