The suicide of several young girls (including several, live on social networks) following the harassment they suffered on the net, required reviewing the extent of the phenomenon of cyber-harassment and identifying the legal means allowing 'end it.
The mechanisms of harassment on the internet
Cyber-harassment is more insidious and more destructive than traditional harassment because of the multitude of forms it takes.
What starts with a game by staging your daily life with a profusion of selfies, videos, likes and comments ... can turn into a nightmare, because once posted on social networks, forums, blogs, online games, victims will have to face the comments of "haters" and "trolls" of all kinds who haunt Facebook, Youtube ...
But very often, the victims do not post anything, anonymous takes care of it by distributing photos, videos stolen, diverted, photoshoped ... without their knowledge to match them with hurtful, insulting, degrading, humiliating or sexual opinions ... and this, without forgetting the false, stolen or usurped accounts ...
All these posts are propagated on the net without any possibility of regaining control over the broadcasts. The harassment begins there, it is incessant and omnipresent because the Internet is accessible everywhere, all the time and by everyone. It is impossible to escape it.
The finding becomes alarming when we realize that the content disseminated remains online. In the first suicide case, insulting messages continued to be sent even after the victim's death. Regarding the second case, it appeared that if the message was picked up and published from other accounts, the police become unable to block all these collateral broadcasts.
Harassment traps victims in a spiral of shame, worry and fear of reprisal: blackmail and extortion through the dissemination of content on social networks.
The legal criteria for cyber-harassment
Cyber-harassment is not a new phenomenon, yet there is no law directly criminalizing cyber-harassment. Surprising, isn't it?
Well no, because cyber harassment is just one more form of harassment (moral, sexual harassment, in the workplace, on the phone, etc.).
It is therefore necessary to rely on the general text, namely article 222-33-2-2 of the penal code and adapt it to the circumstances. An increase in penalties is planned if the victim is a minor under 15 (2nd paragraph), or if harassment takes place on the internet (4th paragraph)
The new right to oppose photos posted without your knowledge
Law n ° 2016-1321 of October 7, 2016 on digital technology has strengthened the repressive arsenal against cyber-harassment. The new article 222-2-1 of the penal code provides that "in the absence of the consent of the person for the broadcast, to bring to the attention of the public or of a third party any recording or any document relating to lyrics or images of a sexual nature, obtained with the express or presumed consent of the person or by himself… ”will be punished by 2 years in prison and a fine of 60 euros.
This text finally makes it possible to act against all those who post photos of a sexual nature on the net.
Until now we could only act if the photos had been stolen or taken without the knowledge of the victims and even if they were recognizable.
There remained a loophole for all these pictures given or made with the consent of the victim. They could no longer challenge their even malicious use because of this initial consent.
Henceforth, the legislator dissociates the consent given at the time of the taking of the photo or its delivery with the consent given for its subsequent use.
Therefore, it will be possible to contest all the uses of the photos disseminated (in particular) on the net, regardless of the conditions in which they were taken or given. The image rights of victims are accompanied by a resale right.
But does the current regime protect us effectively?
Definition of online harassment
Harassment consists in "harassing a person by repeated words or behavior having as its object or effect a deterioration of his living conditions resulting in an alteration of his physical or mental health"
It is the frequency of the comments and their insulting, obscene or threatening content that constitutes harassment.
It doesn't matter whether the harassment takes place on cell phones, instant messengers, forums, online games, emails, social networks, photo sharing sites ...
It doesn't matter how the harassment manifests itself. It could be insults, threats, mockery, denigration, rumors, identity theft, creation of a discussion group directed against a specific person, photos, videos ...
Once constituted, it is necessary to act against any form of harassment.
Take action against harassment
Contact the publisher and / or the website host
The first instinct is to report harassment on the website on which the comments, photos, videos, etc. appear. The sites are required to have a moderator to whom anyone can report malicious or inappropriate content. They can block the account, delete comments ...
This step is imperative because if the publisher does not act as soon as possible, it will be possible to raise its responsibility. It will suffice to demonstrate that he was validly informed of the illegal content (keep proof of the email, screenshot…) and that he did nothing to remove it.
You will then have to request the removal of illegal content from the site. Depending on the procedures put in place, the process can be shorter or longer.
However, if the facts concern children or teenagers, the national education system has set up a fairly dissuasive device to speed up the deletion of data: email@example.com to speed up the procedure. There is also a national toll-free number: Net Ecoute 0800 200 000
For minor victims: Alert the school
According to the website of the Ministry of National Education “In France, 40% of students say they have been victims of aggression or nastiness online. The most frequently cited method remains texting for one in five students (20,3%), followed by mean, humiliating, disagreeable phone calls (13,9%), identity theft (12,1%) ), exclusion from an online social group (11,6%), problems on a chat / MSN ”.
When we know that children have a cell phone from the age of 9, it gives food for thought. Especially since there will be no possibility of blocking access to these destructive messages as we would with adult sites. The perpetrators of harassment are often school friends, members of social groups… of the victim.
In 2015, the Ministry of Education presented new measures to combat bullying at school, including an awareness campaign called “No to bullying”. So this is not a problem that should be taken lightly.
In addition, establishments have a legal obligation to report the facts to the public prosecutor who will take the initiative of prosecution.
To know: For minors there is a whole repressive arsenal against bullying at school, incitement to suicide ... detailed in a dedicated page.
Filing a complaint
Often victims are reluctant to file a complaint thinking that in the absence of a culprit designated or located abroad, it will be useless. You should know that even if the author of the facts is anonymous, with the opening of an investigation, wherever he is, he will not remain so for long (site editors and hosts have the obligation to give all the information in their possession to investigators: IP address, place of connection, number of times, publication, etc.).
You should also know that online harassment is punished, whether the exchanges are public (on a forum for example) or private (between "friends" on a social network, an email, an SMS ...).
This is why it is necessary to act even with very few elements.
Minors can file a complaint on their own. Judicial police officers (OPJ) specially trained to listen to children are present in all police stations and gendarmeries. The only limit is that minors cannot bring civil action, and therefore claim damages, they will have to be assisted by their parents to be compensated in civil matters.
You have to think about collecting all the evidence possible. You have to print everything, take screenshots of messages (emails, sms…), videos, photos… All this evidence is admissible in court. Of course, it is possible to have them authenticated by bailiff's report, but if you do not do this it will not harm your right to act. The investigation services are there for that.
It is from all these elements that the investigation will trace back to the perpetrators of the harassment.
There is no specific law for cyber-harassment but all these acts can be prosecuted on the basis of the following texts:
According to article 222-33-2-2 of the penal code the author incurs 1 year and a fine of € 15 if the ITT is -000 days. The penalties are increased to 8 years and 2 euros if the ITT is + 30 days, or if the victim is a minor under 000, or a vulnerable person (illness, disability, pregnancy), or if the harassment is done on the internet; and at 8 years and 15 euros if two of these circumstances are met (for example: minor + internet).
If the perpetrators are minors, their parents are held responsible for the actions of their children. They may therefore be ordered to pay damages to the victims.
In addition to harassment, the author (major or minor) may also be prosecuted for:
- Public insult or defamation: Article 32 of the Law of July 29, 1881
- Violation of image rights: Article 226-1, 226-2 of the Criminal Code
- Identity theft: Article 226-4-1 of the Criminal Code
- Dissemination of pornographic content: Article 227-24 of the penal code
Other offenses are also possible, everything will depend on the circumstances of the harassment. All will be aggravated if the victim is a minor.
Does the law protect us sufficiently?
In fact, there are still several loopholes in cyber-harassment, particularly in terms of the right to be forgotten on the internet and the total and definitive withdrawal of illegal content.
A standoff has already started against the internet giants and a first step forward has been made in terms of the right to be forgotten of personal data, but Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, will not come into force until 2018.
Admittedly, progress has been made in particular with digital mourning (closure of the accounts of deceased persons), but as the video of the young girl who committed suicide live shows, the world is still powerless to stop the endemic viral spreads.
The essence of harassment lies in its dissemination. Like a virus, it spreads indefinitely as soon as a message or a photo is “liked”, commented on, recorded, it escapes both the victim and the harasser and… the police.
Unlimited broadcasting is the DNA of the net. Therefore, combating cyber-harassment requires taking action against the perpetrators, but also all those who have favored the spread of false information, photos, videos, etc. Because they are the ones who fuel the harassment.
Therefore, arises the legal puzzle, should we prosecute them all for concealing photos, or illegal messages? for complicity…? And then ... We stop all net users for having "liked" ??? None of this is possible.
This is why legally there is no satisfactory way to go back and erase everything.
So ? Well, the only way to protect yourself is to act upstream, by blocking your profiles, by limiting the dissemination of personal information ..., by making children aware that surfing the Internet is not trivial and in filing a complaint very quickly.
It is the "Noah" method to always remember that he built his ark long before the Flood. Afterwards it's too late!
How to fight against cyberbullying?
With the constant development of technologies and social networks, there have unfortunately been new forms of crimes and criminality. And cyberbullying is one of them. Many young people are harassed on social networks, but also older people. We recommend you to follow this link if you want to know how to effectively fight cyberbullying. You will find many tips allowing you to fight against this scourge.
Online violence can have a real psychological impact on a child as well as an adult. It is therefore important to quickly identify this problem, but also to talk about it. The first thing to do is talk about it to defuse a situation. Describe cyberbullying well so that your child understands its consequences. He will thus be able to confide more easily if he is a victim of it, or stop if he was already doing it.
It also exists help numbers you can call if you don't know who to talk to about it. Many associations can also come to your aid to help you solve this type of problem more easily, which can become difficult to bear.