We know their names and we’ve seen the memes. Individuals such as former speaker Bronwyn Bishop, news presenter Brian Williams and dentist Walter Palmer are among the members of an ever widening group of people who have all been the subject of large scale public ire and ridicule in the digital era.
It is difficult to ignore the powerful role that social media plays in present day public shaming and defamation. These platforms have enabled individuals to reach potential audiences of millions overnight. The speed and ease of public shaming is matched by the ubiquity of internet outrage in our culture to the extent that author Jon Ronson (2015) in his book ‘So you have been publicly shamed’ argues that we are experiencing a ‘renaissance of public humiliation’.
Public shame, the law and the rise of internet mob ‘justice’
At various points throughout history, public humiliation has fallen in and out of favour as a means of justice and as a form of entertainment. While most formal modern justice systems have discarded public humiliation in favour of more effective, and less cruel methods, at various points in time, in a variety of cultures, public humiliation has been used as an important tool of criminal and social sanction (Breen, 2016).
In the colonial period many state sanctioned punishments had an element of publicity. For example, in Australia public flogging and head shaving were commonly used punishments for male and female convicts. However, as the increased urbanisation of the industrial revolution gave people greater anonymity and the ability to move more freely between towns, public humiliation ceased to be an effective deterrent.
Over time the law has developed a complicated relationship with public humiliation. The court strives to overcome the problems and bias of vigilante mob justice by applying methodical due process to enforce laws. Monetary and custodial orders have been the preferred methods of correction in many modern justice systems for the majority of the 20th and 21st centuries. However, in recent years there has been a resurgence of courts, particularly in the US, using shame as an alternative to criminal penalties or as a way to increase them. For example, in Ohio in 2013, a 62-year-old man who pleaded no contest to a misdemeanour charge was ordered to stand in public wearing a sign that read “I am am a bully! I pick on children that are disabled” in addition to receiving a short jail sentence and community service.
Many see the resurgence in public shaming orders as a response to prison overcrowding and the relationship between the courts, post-modern journalism and entertainment. The courts have evolved from public forums and it is still very common for trials to receive widespread public attention. It is a widely held perception that the general public has a stake in justice proceedings. In the US, the distinction between justice, news and entertainment is blurred by televised versions of court proceedings such as ‘Judge Judy’ and ‘The Peoples Court’. Kohm (2011) identifies the inherent emotionality of crime as the driving force behind the ability of court proceedings to capture widespread media and public attention. A crime or violation of accepted social norms can give rise to public fear, anger and outrage. Notable examples of this are the trials of Oscar Pistorius, OJ Simpson and Steven Avery, all were viewed by global audiences numbering in the millions.
Online, public shaming has most likely existed since the chat rooms of the early days of the internet. However online public shaming has been most prominent since the inception of large online forums and social media platforms in the early 2000’s such as YouTube, Facebook, Twitter, 4chan and Reddit. Before these websites it was difficult for information to ‘go viral’. Today it’s difficult to imagine the internet before the trolling, vitriolic comment threads and clickbait. Many authors argue that the speed of online communication has increased the demand for entertainment in the form of public humiliation.
Problems that arise with online shaming
The appeal of online shaming and outrage culture is easily visible. An individual who feels that they have been wronged need only turn to Facebook or Twitter where they will find a community of like-minded supporters who are willing to take up their cause. Online participation is also empowering, giving rise to the perception that there is a shortcut to justice that avoids the complexities and potential disappointment of litigation. The everyday individual alongside ‘hacktivists’ or ‘digitialantes’ can simply take the matter into their own hands.
The nature of the internet as a ‘global village’ presents numerous opportunities for online shaming to flourish. As we share more of our lives, information and opinions online, we are presented with two choices; conceal our identity or accept that everything we say online will be on record forever and moderate ourselves accordingly (Love, 2013). These contradictory features of online life give the internet the qualities of both a wild west frontier and a puritan small town. The long memory of the internet means that shaming can have consequences for the individual many years after the incident, while the ability to be anonymous online enables people to use an array of tactics to target others, leaving the law scrambling to identify and deal with those involved.
The principle issue with the online environment is that online shaming in the name of justice is a blunt instrument. The random nature of mob justice means that sometimes it targets people who deserve punishment while at other times targets people who do not (Fisher, 2015). Consider the example of a man who was taking a picture of himself outside a Melbourne Target last year. The man was standing next to a large picture of Darth Vader on ‘May the 4th’ taking a picture to send to his kids. Children who were nearby told their mother who then informed the shopping centre security and police and also posted a picture of the man on Facebook identifying him as a ‘creep’. Within a short time, the post and the man’s picture was shared with over 20,000 people. The man identified voluntarily submitted to a police search and interrogation in order to clear his name, while his accuser, even after issuing a public apology, received strong negative backlash that included death threats.
Another issue with online shaming is that it can have very serious offline consequences. Many people, such as the women at the centre of ‘Gamergate’, have had their personal information published online and have had to leave their homes after being subjected to numerous incidences of harassment and threats of physical violence. Others have lost their jobs, such as PR woman Justine Sacco, who after making a careless tweet about AIDs, took a year to find new employment (Ronson, 2015). Businesses have also suffered under negative online reviews posted on sites such as Yelp and TripAdvisor. For the individuals targeted, there are also many potential negative psychological outcomes of being the subject of online shaming such as depression, anxiety, insomnia and agoraphobia.
The ability of online shaming to have far reaching real world consequences inevitably gives rise to the ethical concerns of whether the punishment fits the crime. Modern justice systems attempt to deal with evidence and proportionalities, two important features which are absent from online shaming. In these situations, it isn’t clear who decides what punishment is fitting or how they arrived at the decision.
Common methods of online shaming
Doxing: Researching and publicly displaying personally identifiable information such as a person’s home address, phone number or financial information.
Swatting: An extension of doxing that has occurred in the US where prank calls lead to the deployment of emergency services to a targeted individual’s address.
Revenge porn: The publishing of non-consensual pornography on the internet in order to humiliate a person, frequently distributed by computer hackers or ex-partners.
Negative Reviews: Posting negative reviews of a business on websites such as Yelp and TripAdvisor.
Online shaming and defamation law in Australia
In Australia defamation can come under civil or criminal law (Breen, 2015). Defamation actions under civil law are covered by Australia’s uniform defamation laws. However, the state jurisdictions also have laws criminalising certain defamatory actions. For example, in New South Wales section 529 of the Crimes Act 1900 states that:
A person who, without lawful excuse, publishes matter defamatory of another living person (the “victim” ):
(a) knowing the matter to be false, and
(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused,
is guilty of an offence.
The maximum penalty is 3 years’ imprisonment.
Criminal defamation is a rarely used charge in Australia, however in 2009 an Adelaide man was convicted of criminal defamation after posting defamatory material about a police officer on Facebook. He became the second person in South Australia’s history to be convicted of the charge.
Under civil law the remedies for defamation include compensation for economic and non-economic loss. It is also possible to obtain an injunction preventing further publication of defamatory material. For a civil defamation action to succeed the plaintiff must prove that:
- the communication was published to one or more people (other than the plaintiff);
- that the communication identified the plaintiff; and
- that the communication was defamatory, meaning that it had the effect of diminishing the plaintiff’s reputation in the eyes of ordinary people in the community and/or leads people to avoid or dislike the plaintiff.
Burgess (2013) makes an important distinction between the purpose of civil and criminal defamation laws. Civil defamation law aims to vindicate and protect the reputation of the person defamed while criminal defamation law is intended to punish the defamer and protect the community.
Currently only one state in Australia has made revenge porn a criminal offence. In 2014 Victoria made it a criminal offence to maliciously distribute intimate images without a person’s consent. However further changes may be on the horizon. In October last year the Federal Parliament introduced a bill seeking to amend the Commonwealth Criminal code to criminalise the act of ‘sharing private sexual material’ without the consent of the subject of the material.
Although they have not been commonly used, there are also civil remedies for victims of revenge porn and other privacy breaches under the uniform defamation laws, through an action for breach of confidence. The elements of an action for breach of confidence include:
- The information published was of a confidential nature;
- The information was communicated or obtained in circumstances that carried an obligation of confidence; and
- There was unauthorised use of the information.
At this time, it is unclear what legal actions are available to individuals who have had their personal information leaked online through doxing methods. While there is legislative protection for personal information, there is currently no right to sue for invasion of privacy in Australia. However, there is now widespread recognition that the current system of civil and criminal laws is inadequate for people seeking protection against privacy breaches.
In late February the New South Wales Standing Committee on Law and Justice recommended that NSW lead the way in creating new legal action for serious invasions of privacy. The proposed changes would enable a person to sue for damages if their privacy had been invaded intentionally or recklessly, and would make it possible to pursue governments and corporations for negligent privacy breaches. The government is required to respond by 5 September 2016.
As the internet has become a more integral part of our lives, many users of social media do not recognise the power that they have on these platforms (Hudson, 2013). Police and legal professionals have issued numerous warnings against taking grievances online, as public shaming actions which damage a person’s reputation either unjustifiably or inexcusably will likely be found to breach Australia’s defamation laws (Wolfenden, 2015). It will depend on the particular circumstances and complexities of each individual case as to whether an online shaming campaign is actionable.
By Lawyers now publishes a comprehensive legal guide – Defamation – Protecting Reputation, to enable practitioners to confidently handle defamation disputes, with or without recourse to litigation.
Breen, P. (2016). Protecting Reputation: Defamation practice, procedure and precedents. The Manual.
Burgess, C. (2013). Criminal defamation in Australia: Time to go or stay. Murdoch UL Rev., 20, 1.
Fischer, M. (2015, July 30). From Gamergate to Cecil the lion: Internet mob justice is out of control. VOX. Retrieved February 20, 2016, from http://www.vox.com/2015/7/30/9074865/cecil-lion-palmer-mob-justice
Hudson, L. (2013, July 24). Why You Should Think Twice Before Shaming Anyone on Social Media. Wired. Retrieved March 08, 2016, from http://www.wired.com/2013/07/ap_argshaming/
Kohm, S. A. (2009). Naming, shaming and criminal justice: Mass-mediated humiliation as entertainment and punishment. Crime, Media, Culture, 5(2), 188-205.
Love, J. (2013, September 12). Sharing or oversharing online? The American Scholar. Retrieved February 26, 2016, from https://theamericanscholar.org/sharing-or-oversharing-online/#.Vt4wY9D1fhx
Ronson, J. (2015). So you’ve been publicly shamed. Picador.
Wolfenden, E. (2015, July 21). Online public shaming: Fair game or misdirected blame? Retrieved February 29, 2016, from http://bakerlove.com.au/online-public-shaming-fair-game-or-misdirected-blame/