“Stalking to be made specific criminal offence” – Cameron. According to Section 39 of Criminal Justice Act 1988, it has given that common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term of not exceeding six month or to both. Stalking is an action directed at a specific person that would make a reasonable man to feel threaten and can be charged under assault. It is a serious crime and offence that under the Protection Against Harassment Act 1997. Regarding to the question given, that online harassment has become the phenomenon especially when the population of Facebook has increased rapidly since 2008. Here, we need to deal with the existing law and settle the questions about how is the stalking occur in social network sites and how much it could affect our life.
At first, we should know that the definition of “Assault” is the defendant intentionally or recklessly causes the victim to apprehend imminent and unlawful force or violence. Under Section 47 of Offences Against the Person Act 1861(OAPA), it brings that assault occasioning actual bodily harm whereas section 20 the defendant must maliciously inflicting grievous bodily harm and to charge with section 18, the prosecution must prove that the defendant had the intention to cause the grievous bodily harm. The sentence will be a fine or imprisonment up to 6 months or both. The Actus Reus of assault is causing apprehension of the application of unlawful force and can without touching. The Mens Rea is the defendant must show either intended or subjective recklessness that the victim would apprehend imminent unlawful force.
The old law
In the case of R v Ireland (as known as R v Burstow), the defendant has confessed to the victim and she refused him. He could not accept this and he made a series actions of harassment towards the victim including made silent phone calls, abusive telephone calls, appears at the victim’s house, took photos on her, distributed offensive card to her neighbours and sending blackmail. As a result, the victim suffered mental depressed illness. Two questions were raised are whether psychological harm could consider bodily harm under Offence Against a Person Act (OAPA) 1861 and whether a person could be liable under Section 20 where there was no direct or indirect applications towards the victim. The court held that the psychological harm could consider as bodily harm, obiter dictum in Chan-Fook has applied and the word ‘inflict’ simply means cause in Section 20.Thus there was no requirement that physical force is directly applied or not. A relationship may become stalking when one person wished to end the relationship and the other refused. However the OAPA had failed as it required proof of actual or grievous ‘bodily harm’ which was thought to encompass only physical harm and some degree of the actions are thought not to be present in the cases involved. Further, the direct application of force was required in order to get charged under section 20. Then, R v Constanza  has wider the boundaries of assault which including verbal and written form (letter) are applicable to prove assault. From this, one could argue that can the stalker still be charged if the victim doesn’t have any idea that he or she was been stalked by someone? Therefore it is important to prove the intentions of the stalker by action itself. Why do they stalk?
We should analysed the practical realities in Facebook that when we look into other users account or we called it “timeline”, we are able get to know that particular person’s photos, status and personal information, as long as that user didn’t set their security privacy, this user profile is public to everyone because everything that the user shares is public discoverable. In order to criminalize those action, one could argue that the action when using a Facebook account to...
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