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On the agenda

September 2016 | Youth Hong Kong

Criminalizing cyberbullying In the absence of legislation to govern cyberbullying, discussion about possible avenues of advance includes a Model Statute for Hong Kong schools and an offence based on anti-stalking law say two young lawyers.

Loopholes in legislative framework by Stephanie Hung Cyberbullying in Hong Kong is only sometimes covered by criminal or civil sanctions and this means that cases often slip through the gaps. One vivid example is that of the 11 year-old Hong Kong English Schools Foundation schoolgirl. Her father claimed she was a target of cyberbullying, that her email account had been accessed illegitimately and that the school’s staff were “negligent and unwilling to make changes to guarantee child safety.”1 The effects on the child were devastating. She suffered nightmares and panic attacks. Worst of all, she will be made to relive horrible memories in court, notwithstanding the possibility of no redress. Why might redress not be given? The current legislative framework is filled with loopholes. For instance, if a cyberbully sends messages through the internet, he or she is not criminally liable under section 20 of the Summary Offences Ordinance (Cap 228) as this only provides protection against cyberbullies who use “telegraph, telephone and wireless telegraphy.” Similarly, the Unsolicited Electronic Messages Ordinance (Cap 593) does not address sending offensive, indecent or obscene content in electronic messages either.2 To make matters worse, these loopholes cannot be fixed by judges and legislative reform may take time. But all is not bleak. We can take the initiative ourselves. In the UK, it is a statutory duty of schools to implement anti-bullying policies.3 Schools in Hong Kong should also work with parents, teachers, students, law enforcement agencies and community stakeholders to implement a school policy4 with the following objectives: 1. To include a strong definition of cyberbullying If it is too broad or vague it could cause confusion and might contradict the principle of free speech. 2. To address off-campus behaviour Cyberbullies may use devices not owned by the school or located outside school premises. 3. To include requirements for teachers, students and parents to have regular training These would publicize the policy, invite reports of incidents of cyberbullying and confirm that cyberbullying is inappropriate conduct and a serious concern. 4. To set out clear reporting and investigation procedures Victims will then know it is safe and effective to report incidents. 5. To establish consequences Penalties to deter potential cyberbullies from offending or re-offending and to punish their inappropriate behaviour must be known. 6. To provide counselling The effects of cyberbullying often have long-lasting effects. 7. To gather statistics Schools can then evaluate the success of their policies and try to improve them. 18

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