This post was contributed by Dr Laura Lammasniemi, Assistant Professor, Law School of University of Warwick.
Can criminal law keep up with rapidly developing technology and the use of social media? Whether it’s a question of sexually motivated taking and sharing of images, or online bullying, criminal law has been remarkably slow to recognise the impact of technology on people’s lives.
Perhaps you have heard of new criminal terms such as ‘upskirting’ or ‘revenge porn’. Even if you haven’t, you might have seen strangers take a picture of a couple kissing or holding hands on public transport or in other public spaces to post on social media, without asking for their permission. A stranger taking ‘a cute’ picture of an unknown couple can be seen as thoughtless or as invasive, but not many people would categorise it as image based abuse requiring criminal intervention. What kind of taking and sharing of images then does require criminal intervention? Upskirting, the invasive practice of taking an image or video underneath or up someone’s clothing without their consent for the purposes of sexual gratification or to humiliate, alarm or distress the person, became a criminal offence this year under the Voyeurism (Offences) Act 2019. Revenge porn, sharing images or videos of one’s sexual partner, without their permission was criminalised already in 2014 but it has led to very few prosecutions. These individual offences are steps in the right direction. However, as the law is moving to recognise the severity and impact of image based abuse, there needs to be a conversation about what we mean by this and how do we better respond to it.
Another area of where criminal law has yet to react to changes in society is online bullying, something that impacts on teenagers and young people in particular. Bullying is a complex social and legal issue that impacts on the lives of many, leaving some to suffer long term psychiatric harm and injury. We know that from the landmark cases of R v Ireland and Burstow  UKHL 34 and R v Dhaliwal  EWCA Crim 113that psychiatric injury and mental illness can be considered to be actual bodily harm or even grievous bodily harm for the purposes of the Offences against the Person Act 1861. We also know from the case of R v Ireland and Burstow that making silent phone calls can constitute assault. If silent phone calls can give rise to criminal liability, then surely making systematic, malicious comments online intended to hurt and distress the recipient can do too? To date, there have been no prosecutions in the cases where online bullying has led to recognisable harm or even to suicide but perhaps we will see a test case in the courts in the next few years.
FIND OUT MORE
Do you want to find out more about sexual offences, and other areas where the current criminal law might be in need of reform?
We are running a Revision Day for University of London UG Laws programmes students in March. During this course, my colleague and I will be covering rape, fraud, complicity and attempts.
Dr Laura Lammasniemi is an Assistant Professor at the Law School of University of Warwick where is she is convening Criminal Law and Gender and the Law. Before moving to Warwick, she taught criminal law at SOAS and Birkbeck College, both University of London colleges. Laura’s research focuses mainly on the intersection of criminal law, gender, and social class. She has published in particular on gendered impact of austerity, and on histories of human trafficking and age of consent. Currently she is working on a project on understanding the history of sexual consent in English criminal courts.
Laura has been involved with University of London UG Laws for a number of years, contributing in particular to the Criminal Law course through Lecture Plus sessions and study days in London and abroad. Laura has also written the University of London Dissertation Guide. Laura’s teaching approach is engrained in the law in-context model; recognising that criminal law in particular is never distinct from its surroundings, and it is forever changing in line with political will and morals of the time.
The Criminal Law Revision day will focus on revision and exam guidance, without losing sight of the critical perspectives into the study of criminal law. We will include small group sessions, plenty of opportunities for exam practice and for you to ask any questions you might have.
For more information about the London Revision Event.