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overview
This page considers 'cyberstalking' (aka internet stalking):
use of the net for electronic and/or physical harassment
of an individual.
It covers -
It
supplements discussion of privacy,
surveillance, security,
online social spaces
, identity theft and
unauthorised photography.
The following pages considers anti-stalking law, selected
cases, questions of 'identity management' and media treatment
of online stalking.
introduction
Stalking, variously defined, has been characterised as
an unprecedented or peculiarly modern phenomenon - particularly
one that has been fuelled by contemporary communications
technology (such as mobile phones and email) and ready
access to information about victims.
Some observers have differentiated between 'traditional'
stalking - in which, for example, a stalker physically
waits and harasses a person - and cyber-stalking or internet
stalking, where the harassment takes place electronically
or where online information is used to aid physical harassment.
What is cyberstalking? Media descripions and legal definitions
of stalking vary substantially from one jurisdiction to
another. The US National Center for Victims of Crime (NCVC)
identifies stalking as
a course of conduct directed at a specific person that
would cause a reasonable person to feel fear.
Other
authorities have identified cyberstalking as
using
the Internet to instill fear of harm or death to someone
and
have claimed that the pseudonymous nature of much online
contact has attracted people to virtual harassment rather
than more traditional loitering outside a victim's residence.
In the US varying definitions of stalking encompass "the
willful, malicious, and repeated following and harassing
of another person", including activities such as
lying-in-wait, surveillance, nonconsensual communication,
telephone harassment and vandalism. The harassment must
be recurrent rather than an isolated event.
Most legislation features a requirement of a credible
threat of violence (whether solely against an individual
or against that victim's family and associates). Some
legislation takes a broader view, requiring only an implied
threat through the alleged stalker's course of conduct.
Much stalking legislation and interpretation by courts
is sufficiently broad to encompass stalking via email,
SMS or other electronic
communication (eg through definition of prohibited conduct
in terms of 'communication', 'harassment' or 'threats'.
Some nations/states have specifically referred to use
of email or the net in anti-harassment legislation. Others
have instead relied on traditional prohibitions against
making threats over telegraph and telephone networks.
background
It has been fashionable to claim that stalking is somehow
modern and a feature of industrial societies.
One site thus claims that stalking
first
received widespread public concern in 1980 with the
murder of John Lennon, and again in 1981, with John
Hinkley Jr.'s assassination attempt on President Ronald
Reagan. It was not until the 1989 death of Rebecca Schaeffer,
a rising young actress, who was killed by an obsessed
fan who had stalked her for 2 years, that laws were
initiated.
In
fact instances of harassment can be identified in historical
accounts, literature and court cases from at least the
Roman era. UK and Australian common law and statute law
for example grappled with evolving notions of privacy,
threat, responsibility and public order in instances where
a suitor was importunate, a partner was violent, a business
contact behaved in a 'menacing' manner or strangers 'lay
in wait' to extort benefits or injure an individual.
Community expectations about behaviour in public/private
places and the shape of public order were reflected in
regimes concerning streetlife and demonstrations, discussed
here. They
were also evident in law and in media coverage of threats
of violence and 'poison pen' messages - anonymous or otherwise
- via telegraphy, the post or the nasty unstamped letter
that appeared in the letterbox. The UK Law Commission
for example, in its 1985 Report on poison-pen letters,
recommended a Malicious Communications Act with
new statutory offence penalising those who sent poison-pen
letters.
'Erotomania' or obsessional harassment of celebrities
- sometimes with violence - was noted during the golden
age of cinema (fans pursuing stars of the silver screen)
and during the preceding century of theatre. More recently
media attention has focussed on harassment of figures
such as Stephen Spielberg, Brad Pitt, Linda Ronstadt,
Jerry Lewis, Ashley Judd, Diana Rigg, Monica Seles, David
Letterman, Jodie Foster, Michael Jackson, Dan Rather,
Mel Gibson, Nicole Kidman, Gwyneth Paltrow and Madonna.
Blaauw, Winkel & Arensman in a 2000 paper
accordingly echoed J Reid Meloy in characterising stalking
as "an old behaviour but a new crime". Others
have tagged it as an old crime with a new name.
a digital phenomenon?
The 1999 US federal Cyberstalking:A New Challenge
for Law Enforcement and Industry report,
noting that "the new millennium is fast approaching,
and the information superhighway is undergoing rapid growth",
warned of "a new concern" - cyberstalking -
defined as
use
of the internet, e-mail, or other electronic communications
devices to stalk another person.
That report argued that
The
fact that cyberstalking does not involve physical contact
may create the misperception that it is more benign
than physical stalking. This is not necessarily true.
As the Internet becomes an ever more integral part of
our personal and professional lives, stalkers can take
advantage of the ease of communications as well as increased
access to personal information. In addition, the ease
of use and non-confrontational, impersonal, and sometimes
anonymous nature of Internet communications may remove
disincentives to cyberstalking. Put another way, whereas
a potential stalker may be unwilling or unable to confront
a victim in person or on the telephone, he or she may
have little hesitation sending harassing or threatening
electronic communications to a victim. Finally, as with
physical stalking, online harassment and threats may
be a prelude to more serious behavior, including physical
violence.
The
report went on to comment that a cyberstalker can dupe
other people online
into
harassing or threatening a victim by utilizing Internet
bulletin boards or chat rooms. For example, a stalker
may post a controversial or enticing message on the
board under the name, phone number, or e-mail address
of the victim, resulting in subsequent responses being
sent to the victim. Each message - whether from the
actual cyberstalker or others - will have the intended
effect on the victim, but the cyberstalker's effort
is minimal and the lack of direct contact between the
cyberstalker and the victim can make it difficult for
law enforcement to identify, locate, and arrest the
offender.
As
with offline stalking, which ranges from harassing phone
calls and anonymous letters to the 'shadow' waiting outside
your house and a burglary by the angry ex, cyberstalking
takes a range of forms. The 2002 An exploration of
predatory behaviour in cyberspace: Towards a typology
of cyberstalkers paper
by Leroy McFarlane & Paul Bocij defined cyberstalking
in 2002 as
A
group of behaviours in which an individual, group of
individuals or organisation uses information technology
to harass one or more individuals. Such behaviour may
include, but are not limited to, the transmission of
threats and false accusations, identity
theft, data theft, damage to data or equipment,
computer monitoring and the solicitation of minors for
sexual purposes. Harassment is defined as a course of
action that a reasonable person, in possession of the
same information, would think causes another reasonable
person to suffer emotional distress.
The
zeitgeist sniffers at Wired breathlessly reported
in 2001 on "the epidemic of cyberstalking",
with claims that under half of US states had cyberstalking
laws and that "most offenders, if caught, face only
a misdemeanor".
Responses to such claims, often made by organisations
with a better grasp of public relations than legal realities,
have been quite mixed. Much of the legislation passed
since the 1980 'discovery' of stalking appears unnecessary,
in that existing law could deal with offences such as
making overt threats, stealing an identity or sending
obscene images to a minor by MMS
or email.
Gregor Urbas in a 2001 paper notes that
Legislation
containing criminal provisions specifically directed
at "stalking" or similar "harassment"
behaviour is relatively recent. California led the way
by introducing a criminal offence and a civil tort of
stalking in 1990. By 1993, almost all state legislatures
in the United States had followed. Canada similarly
amended its Criminal Code in 1993, though avoiding the
term "stalking" in favour of "criminal
harassment". In Australia, Queensland was the first
jurisdiction to follow to introduce a similar offence
of "unlawful stalking" into its Criminal Code
in late 1993. Other Australian States and Territories
progressively introduced their own stalking legislation
over the next three years. Finally, the United Kingdom
enacted the Protection from Harassment Act
in 1997, which together with the Malicious Communications
Act 1988 prohibits a wide range of behaviour designated
as "harassment".
As
with defamation (and
other 'speech crime' such as blasphemy),
observers have noted jurisdictional concerns because contemporary
electronic networks facilitate communications across borders
and on a pseudonymous basis.
Emma Ogilvie thus commented that
At
least as far as the Internet is concerned, the 'stalker'
is, after all, nothing more than a digital address.
While such addresses may be traced, they may also be
continually hidden, shifted, and altered and communications
can be made from or mediated through locations that
emphasise free speech or that inhibit enforcement.
One
example was the large-scale campaign of online vilification
against Australian academic Trevor Cullen discussed
elsewhere on this site.
statistics
Definitional disagreements and uncertainties about data
collection and analysis (notably disputes about interpretation
of small samples) mean that figures on stalking and cyberstalking
are contentious.
Emma Ogilvie's cogent 2000 Cyberstalking paper
(PDF)
for the Australian Institute of Criminology commented
that
Increasingly,
cyberstalking is gaining the attention of the media
and the public as the nature of the crime incorporates
elements of new technology and threatening behaviours,
which symbolise a new form of threat. Unfortunately,
we have absolutely no empirical research upon which
to estimate the actual incidence of cyberstalking and,
indeed, determining the magnitude (or not) of this crime
is practically impossible
In the US the federal Department of Justice, building
on a 1997 study and the more detailed 1998 Stalking
in America report by the National Institute of Justice
(NIJ), has claimed that one in 12 US women and one in
45 men will be victims of "some form of stalking".
The 1998 NIJ report claimed that 8% of surveyed women
and 2% of men indicated that they had been stalked at
some point in their lives. Most knew the stalker; many
had cohabited. 23% of stalkers identified by female victims
were strangers versus 36% of male victims. 52% of the
stalking victims were 18-29 years old; 22% were 30-39
years old when the stalking started. Around 50% of all
female stalking victims reported the victimisation to
police. 13% of female victims and 9% of male victims reported
that the stalker was criminally prosecuted. 28% of female
victims and 10% of male victims obtained a protective
or restraining order, although 69% of the women and 81%
of the men reported that the stalker violated the order.
Of the cases in which criminal charges were filed, 54%
resulted in a conviction (of which 63% resulted in jail
time).
Stalkers made overt threats to some 45% of victims, spied
on or followed 75%; vandalised the property of 30% and
threatened to kill/killed pets of 10% of victims. Most
stalking episodes lasted less than 13 months, typically
ending because the victims moved (20%) or sought police
involvement (15%). Some one-third of the NIJ stalking
victims reported they had sought psychological treatment;
20% lost time from work (7% of that group never returned
to work).
Marilyn McMahon & John Willis' 2002 'Neighbours and
Stalking Intervention Orders: Old Conflicts & New
Remedies' in Law in Context (2002) argued that
25% of Australian stalking incidents involves neighbours
The 2004 UK Chubb Insurance Report on Stalking
by David Canter and Donna Youngs claimed that one in eight
UK adults are victims of "persistent or unwanted
attention". Typically they are "professionals
in their 40s", with 94% of victims being forced to
make "major lifestyle changes" that include
changing residence or job. Up to 45% of the Chubb stalkings
included violence.
A paper by Purcell, Pathe & Mullen on The prevalence
and nature of stalking in the Australian community
(in the ANZ Journal of Psychiatry) noted that almost 25%
of respondents reported having been stalked, with 10%
being stalked over a protracted period. The harassment
varied in intensity - some overseas studies have argued
that there is a need to differentiate between differing
forms/levels when considering such statistics - and much
involved former cohabitees.
A point of reference is provided by the 2006 UK Home Office
report, drawing on the annual British Crime Survey, that
claimed one in eight people received an "offensive
or harassing" email in the preceding year, with one
in 11 people getting an offensive SMS message or telephone
message. Men aged between 26 and 30 were the most likely
to have experienced "harassment by email"; women
were more likely to have received offensive messages by
phone. Over a third of people reported anxiety about receiving
"offensive, pornographic or threatening material"
on their home computers.
studies
Stalkers and their Victims (Cambridge: Cambridge
Uni Press 2000) by Paul Mullen, Michele Pathé &
Rosemary Purcell and the 2001 paper
by Purcell, Pathé & Mullen on The incidence
and nature of stalking victimisation are of particular
value, as is Stalking: criminal justice responses
in Australia (PDF)
by Emma Ogilvie. The latter's persuasive The internet
and cyberstalking (PDF)
and Australian Legislative Responses To Stalking
(PDF)
by Gregor Urbas are essential reading. The 1999 paper
The 'Domestic' in Stalking: Policing domestic stalking
in the Australian Capital Territory by Amanda Pearce
& Patricia Easteal, Personal Protection &
the Law: Stalking, Domestic Violence and Peace and Good
Behaviour (PDF)
by Heather Douglas and 2002 NSW LRC Discussion Paper
on Apprehended Violence Orders highlight implementation
issues.
The regime across the Tasman is considered in Angela Maxwell's
2001 Cyberstalking paper (PDF),
David Harvey's 2003 Cyberstalking & Internet Harassment:
What the Law Can Do (PDF)
and Jane Mountfort's The Civil Provisions of the Harassment
Act 1997: A Worrying Area of Legislation paper.
For the US see the 1999 DOJ report noted above and Amanda
Medlin's concise 2002 paper
Stalking to Cyberstalking, a Problem Caused by the
Internet. Web Stalkers: Protect yourself from
Internet Criminals & Psychopaths (Kittrell: Rampant
TechPress 2005) by Oracle enthusiasts Stephen Andert &
Donald Burleson catches the zeitgeist.
For a psychological perspective see in particular The
Psychology of Stalking: Clinical & Forensic Perspectives
(San Diego: Academic Press 1998) edited by J Reid Meloy
and Michele Pathé's lucid Surviving Stalking
(Cambridge: Cambridge Uni Press 2002).
Questions of stalking as cybercrime are explored in the
1998 Cyber-Stalking: the Regulation of Harassment
on the Internet (PDF)
by Louise Ellison & Yamen Akdeniz, Barbara Jenson's
more pessimistic 1996 Cyberstalking: Crime, Enforcement
and Personal Responsibility in the On-line World
paper
and Paul Bocij's Cyberstalking: Harassment in the
Internet Age and How to Protect Your Family (Oxford:
Greenwood 2004).
For broader historical views see Governing Morals:
A Social History of Moral Regulation (Cambridge:
Cambridge Uni Press 1999) by Alan Hunt, Joss Marsh's Word
Crimes: Blasphemy, Culture & Literature in 19th Century
England (Chicago: Uni of Chicago Press 1998), The
Social History of Language (Cambridge: Cambridge
Uni Press 1987) edited by Peter Burke & Roy Porter,
Richard Schickel's Intimate Strangers: The Culture
of Celebrity in America (Chicago: Dee 2000), Samantha
Barbas' Movie Crazy: Fans, Stars & the Cult of
Celebrity (New York: Palgrave 2001) and Jackie Stacey's
Star Gazing: Hollywood Cinema and Female Spectatorship
(London: Routledge 1994).
Law reform agency reports are of particular value. These
include the 1994 Eire Law Reform Commission report
on Non-Fatal Offences Against the Person, 2000
Law Reform Commission of Hong Kong report on Stalking
(PDF)
and the 2003 South African Law Reform Commission Stalking
issues paper (PDF)
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