Targeted harassment – should we take lessons from Austria in criminalizing "maalittaminen"?

Authors: Juhana Riekkinen (University Lecturer in Legal Informatics) and Jakob Zanol (Project Assistant, University of Vienna)

Research Group: Law, Technology and Design Thinking

Introduction[i]

One harmful phenomenon that has recently gained the attention of legislators is online targeted harassment of individuals by masses of people, especially on social media platforms. In Finland, this has been dubbed maalittaminen.[ii] This term derives from military vernacular and refers to designating a target for indirect fire. The metaphor highlights the dynamics of this new kind of online harassment, which consists of actions by at least two (groups of) actors:

1) the initiator(s), that is, the one(s) designating the target(s)

2) the participants, that is, the ones carrying out the attack.

Fig. 1. The concept of maalittaminen and the actors involved.

A “target” is designated by either simply mentioning the name or contact information of a person, or by hinting, suggesting or explicitly stating that certain kinds of messages should be sent to the target. The initiator may disseminate their message via many forums, and the subsequent “attack” may, likewise, consist of many types of messages and acts via multiple channels, including social media, instant messaging, e-mail, physical mail, and even in-person aggression.

It is often highlighted that targeted harassment entails organized cooperation in which a group of people commit a number of (speech) acts that are linked by their purpose. In reality, the level of organization or co-operation between participants may vary or be difficult to prove, as most online communities lack strict organizational hierarchies.

Finnish initiatives to criminalize maalittaminen

Juhana Riekkinen

Although many forms of cyber-enabled targeted harassment are covered by pre-existing, technology-neutral provisions in the Finnish Criminal Code, there have been calls for creating a new, specific offence to combat maalittaminen and to more effectively punish and deter harassment in the online environment.

For example, in June 2019, the National Police Board, the Office of the Prosecutor General, and the Chief Judges of the District Courts proposed a new criminal offence, which would criminalize actions that cause a situation that is conducive to frustrating the activities or decision-making of a public authority.[iii]

These actions would include harassing or threatening a person in the service of a public authority and expressing or spreading unfounded claims related to them.

The criminalization would further cover creating such a situation “in another comparable manner”, as well as “knowingly providing a platform”[iv] for any such actions. Despite its wide scope, the proposed provision would not protect all victims of online harassment (such as journalists or scientists), but merely shield public authorities and those working for them.

In a government-commissioned report, Mika Illman rejected the proposal due to incompatibility with human rights obligations and the Constitution of Finland.[v] In particular, he found the proposed provision too imprecise to fulfil the principle of legality and too restrictive in regard to freedom of expression.

In the same report, Illman presented an alternative approach, which can be characterized as a collection of existing criminal law norms in a single provision that recognizes targeted online harassment as a phenomenon. The proposed section on “participation in illegal targeted harassment” would apply to five different types of unlawful activities when committed in the online environment and in co-operation with others engaging in those activities. The definitions of the activities correspond to existing criminal law provisions.[vi] The proposal would also aim to safeguard freedom of expression with exemptions concerning 1) criticism that is directed at a person’s activities in politics or other public activity, and 2) public debate in matters of general importance, likewise modelled after existing law.[vii]

Criminal offences should be clearly and precisely defined in law (“prescribed in law”; Article 10(2) ECHR). While the first proposal falls considerably short of this ideal and would not draw a clear line between legal and illegal conduct, Illman’s proposal would sidestep the problems of vagueness and over-restrictiveness in relation to freedom of expression.

However, Illman’s proposal would also have only limited effect in frustrating targeted harassment, as it does not criminalize much – if anything – that is not already covered by existing criminal law. Instead, it contains additional elements (compared to existing provisions) that need to be proven beyond reasonable doubt, which might even decrease conviction rates. The provision would therefore provide little value beyond sending a symbolic message. As Illman himself concedes in his report, the provision would therefore be unnecessary.[viii]

Of course, there are many alternative approaches to drafting a provision on maalittaminen beyond the ones discussed above. As a side note, a further possible criminal law section on maalittaminen was even the subject of a question in the 2021 entrance exam to Finnish law schools.[ix]

"Cybermobbing" in the Austrian Criminal Code

Meanwhile, if we examine the Criminal Code of Austria, we find an existing provision that could be applicable to maalittaminen. Section (§) 107c of the Austrian Criminal Code (“Strafgesetzbuch”; StGB) states the following:

"Any person who, by means of telecommunications or using a computer system, in a manner likely to unreasonably interfere with a person in the conduct of his or her life,

1) Commits a criminal act against the honor of a person in a manner that is perceptible to a large number of people for a longer period of time; or

2) makes information or an image of the most personal area of a person's life perceptible to a larger number of people for a longer period of time without the person's consent,

shall be punished by imprisonment for not more than one year or by a fine not exceeding 720 day rates.”[x]

Jakob Zanol

This provision addresses a single perpetrator (“any person”) but could also apply to every member of a group attacking a single target. This means that it could theoretically provide a suitable deterrent against many forms of maalittaminen, in particular against actions by the initiators of harassment.

Unlike present Finnish provisions, this provision is specific to the online environment. However, this alone does not guarantee that it would be applicable to each individual act that takes place within the context of an online harassment campaign.

 Conclusion and outlook

The Austrian approach embodied in the cybermobbing provision might be useful in addressing maalittaminen in Finland, as well. However, we should not forget that any new criminal provision can bring about unintended side effects. A provision similar to the Austrian one could, if applied extensively, lead to a severe restriction of free speech. This risk exists especially in the context of criticism of persons of public interest, such as politicians, whose position as public servants opens them to legitimate criticism according to the ECtHR.[xi]

Notably, the European Commission recently proposed a new directive on combating violence against women and domestic violence,[xii] which would obligate the member states to criminalize cyber stalking, cyber harassment and cyber incitement to violence or hatred. In the proposal, cyber harassment is defined in terms similar to the Finnish understanding of maalittaminen.

Should this directive be adopted, Finnish legislators (as well as the authors) would have to re-evaluate the need to complement existing criminal law with a new criminal offence. However, the national implementation of the directive would still require addressing the challenges identified above: the requirement of precision connected with the principle of legality, and the balancing of different constitutional rights.

In addition to criminal law and the criminal justice system, we should consider other approaches, such as platform regulation. By this, we do not mean only intermediary liability for illegal content, but also regulation based on more modern governance and regulatory paradigms. Such include, for instance, focus on service design and proactive duties, digital constitutionalism, and human rights-based approach to content moderation.[xiii]

Fig 2. Some possible responses to problems related to online harassment.

There is usually no single, quick solution to complex problem fields such as online harassment. Therefore, we should explore different kinds of solutions, and identify the best possible combination of regulatory (and even non-regulatory) means and measures. As many problems related to online harassment are global or universal, comparison of solutions adopted in different jurisdictions can continue to play a role in this search.

References

[i] This post is based on Juhana Riekkinen’s paper Targeting Targeted Harassment: Problems with Criminalization and Platform Liability presented at Internationales Rechtsinformatik Symposion IRIS 2022, and the discussions during and following the conference session, which was chaired by Jakob Zanol. The original paper has been published in the Conference proceedings (Schweighofer, Erich – Saarenpää, Ahti – Eder, Stefan – Zanol, Jakob – Schmautzer, Felix – Kummer, Franz – Hanke, Philip (eds.), Recht DIGITAL – 25 Jahre IRIS: Tagungsband des 25. Internationalen Rechtsinformatik Symposions IRIS 2022 / Proceedings of the 25th International Legal Informatics Symposium IRIS 2022, Editions Weblaw, Bern 2022, 383–392) and in Jusletter IT at https://jusletter-it.weblaw.ch/issues/2022/30-Juni-2022/targeting-targeted-h_2071282917.html. Presentation slides are available at https://easychair.org/smart-slide/slide/Hl5J#.

[ii] This could be translated as targeted harassment. Kristiina Koivukari and Päivi Korpisaari have opted for the translation online shaming (Online shaming – a New Challenge for Criminal Justice. In: Bayer, Judit – Holznagel, Bernd – Korpisaari, Päivi – Woods, Lorna (eds.), Perspectives on Platform Regulation: Concepts and Models of Social Media Governance Across the Globe, Nomos, Baden-Baden 2021, 473–487). Related but not identical concepts include cyberbullying, cybermobbing, cyberstalking, doxing, trolling and flaming.

[iii] National Police Board etc., Lainsäädännölliset muutostarpeet viranomaisten maalittamiseen puuttumiseksi, Initiative to the Ministry of Justice, ID-19121964, POL-2018-54628, 17 June 2019.

[iv] Beyond this, the proposal does not address any cyber-specific features of maalittaminen, and it would not be limited to online harassment.

[v] Illman, Mika, Järjestelmällinen häirintä ja maalittaminen: Lainsäädännön arviointia, Valtioneuvoston kanslia, Helsinki 2020. http://urn.fi/URN:NBN:fi-fe2020120399312.

[vi] These offences are currently regulated in chapter 25, section 7 (menace), chapter 24, sections 9 (defamation) and 8 (dissemination of information violating personal privacy) and chapter 17, section 1 (public incitement to an offence) of the Criminal Code. An unofficial English translation of the Criminal Code is available at https://www.finlex.fi/en/laki/kaannokset/1889/en18890039_20150766.pdf.

[vii] Current provisions on defamation and dissemination of information violating personal privacy contain similar exemptions. Only expressions that do not clearly exceed what can be deemed acceptable are exempted. Thus, the clauses do not mean that freedom of expression would be absolute even in the context of important societal debate or political criticism, but they obligate the courts to engage in a balancing act between different (fundamental) rights at stake. The Supreme Court of Finland has stated that such balancing may be required in certain situations even when the criminal provision in question does not contain explicit exemptions (KKO 2022:8). In this case, online behaviour that can be considered a form of maalittaminen was evaluated as stalking (chapter 25, section 7a of the Criminal Code).

[viii] Illman 2020, 137–140.

[ix] The candidates were asked to evaluate a fictional government proposition for a new criminal code section on maalittaminen from the perspective of criminalization principles. https://oikeustieteet.fi/wp-content/uploads/2021/12/Valintakoe_oikeustiede_2021.pdf.

[x] This is not an official translation; highlights added by the authors.

[xi] ECtHR Castells v. Spain (1992). No. 11798/85, § 46, A236; Incal v. Turkey (1998). No. 22678/93, § 54, ECHR 1998 IV; Tammer v. Estonia (2001). No. 41205/98, § 62, ECHR 2001-I.

[xii] COM(2022) 105 final. Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence. Strasbourg, 8.3.2022.

[xiii] See Riekkinen 2022, 388–391.