Why Online Harassment Laws Have Not Caught Up

It is hard to imagine life without the Internet in 2016. While the Internet has become a huge staple of modern life, laws surrounding its use haven’t quite caught up with our rapid technological leaps forward.

One question that many have in this day and age is: why is online harassment not prosecuted in the same way that harassment and assault are in the real world? Why hasn’t the law caught up with technology.

The internet makes prosecution challenging

In their 2014 report Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, Alice E. Marwick and Ross Miller of Fordham University do a good job of explaining just why online harassment, defamation, and hate speech are particularly troublesome to create legislation for. Some of their main points include:

  • Section 230 of the Communications Decency Act provides Internet service providers (ISPs), such as social media websites, blog hosting companies, etc., with broad immunity from liability for user-generated content.
  • Limited resources tend to cause law enforcement personnel to prioritize other cases instead of Internet-related ones.
  • The medium of the Internet can make prosecution tricky. For example, if a crime is committed between two people who live in different states or countries, which laws should be applied?
  • For online statements to qualify as defamatory, they must be empirically false instead of simply a matter of opinion. This makes specific language crucial and often makes filing for defamation tricky.
  • Internet speech is protected under the First Amendment. As a result, state laws regarding online speech are written to comply with these protections, requiring fighting words, true threats, or obscene speech (which aren’t protected). Therefore, many offensive online comments are actually protected speech.

Beyond those difficulties, there are issues where the rubber meets the road: enforcing the law.

  • Law enforcement and legislation are notoriously sluggish when it comes to keeping up with rapid advancements in technology.
  • It is incredibly easy to find anonymity on the Internet today, which can sometimes make proving that one party is the culprit in a case rather dubious.
  • Those concerned with privacy would be huge opponents of bills like this because of the technology required to actually enforce them.

If you’re a victim today, ultimately you can’t do a whole lot beyond actually reaching out to social media channels or online media where these types of message are posted. However, if the messages do not violate that website’s terms of service, the message will most likely stick around, and the user will not be banned or have their account removed.

In fairness, the current legal system isn’t a complete failure for victims of cyber crimes. However, filing a case and seeing it through to completion in these situations is often very expensive, time-consuming, and emotionally draining, and as a result many choose not to prosecute if they find themselves in a troublesome situation.

As we become more and more familiar with digital technology, history suggests that we will eventually see a watershed moment and a landmark decision that will lead to digital-focused legislation. But for now, we must simply wait and see.