A client of mine has been faced with a multi-yearlong effort to smear and harass her in social media, using hundreds of posts like those accompanying this article but vastly more explicit. She is the spouse of a celebrity, and like many such people, small groups of serial stalkers have decided that she is fair game, including harassing her over her significant medical condition.
As images like these samples clearly show, anonymity breeds contempt, and social media is the breeding ground for often virulent harassment, propagated by individuals and groups relying on their ability to remain unknown. For those engaged in the field of mitigating this material on behalf of clients, managing this activity requires a new toolset and an ethical framework to making decisions about the methods and content of response. An examination of the legal, forensic and communications options available suggests pathways most likely to terminate this activity.
Many look first to criminal law
Most clients look first for legal relief, but often find that this pathway is both unclear and very expensive. Criminal law is well behind the state of the Internet today, and in many jurisdictions, the standards for criminal harassment or stalking focus on physical rather than online activity. This is a shame, since suicide is the second leading cause of death among teens, and a significant percentage of it is related to online harassment, sometimes conducted by adults. Unfortunately, by the time laws have been broken, a child has been harmed or worse. To say nothing of adults who are the targets of this behavior, although some adults have received tough criminal sentences when it results in a death. This is all too infrequent. Indeed, media reporting suggests that the suicide of Jill Messick, former manager of Rose McGowan, may well have been related to online harassment. Despite the known identity of the leaders of this activity, none have been investigated, much less criminally charged. This should be an ongoing topic of civic conversation.
Civil Litigation as an option
Beyond criminal law, many clients look to relief in civil lawsuits, often based on a theory of defamation law. Again, the compromises and risks involved in pursuing this litigation often outweigh the benefits. In the first case, civil litigation is expensive in ways many people do not understand. Taking a case to trial is almost inevitably a six figure proposition. And pursuing it as plaintiff almost always requires hiring counsel… the intricacies preclude self-representation. Beyond this, speech is so well protected in civil law that many jurisdictions have a set of procedures to quickly terminate cases that do not rise to meet a standard of likelihood of success. These laws, usually called Anti-SLAPP (Strategic Lawsuit Against Public Participation) are the bane of plaintiff’s civil attorneys in defamation cases, but they also act as a significant relief valve against legal claims brought (often without an attorney) for purely harassing purposes. For a client, losing an Anti-SLAPP motion means not only losing your suit, but being obligated to pay your opposition’s attorney fees.
Identifying anonymous stalkers & harassers
If the law is incapable of managing genuine harassment and stalking activity, what resources are available? My philosophy starts with an understanding based on many years of experience that if you know what your opposition most fears, you know where they are vulnerable to mitigation. This is an exercise in psychology as much as technology. In case after case, I have seen the common element of using anonymity as a tool of projecting vile smears and rage in ways that would simply not happen if the people involved were having their remarks attributed to them by name. Thus, since the court of law is unavailable, I sometimes migrate to the court of public opinion. If people are saying things they are ashamed to do in their own name, I may identify them and publicly attribute their comments to their real identity.
Internet forensics have advanced significantly in the past several years. While some people are utterly untraceable in social media, most can be identified with some detailed forensic work. While the techniques are proprietary, they involve pattern matching, paid data services, and some other tools. Used skillfully, I am able to identify a surprisingly large number of anonymous attackers, especially by observing them over time.
Indeed, I have and will continue to, after extinguishing other options, publish the previously anonymous tweets of such serial harassers/stalkers, and attach them to their actual identity. Many are productive and well employed people with positive reputations to friends and colleagues, who are shocked when they discover the secret double lives of their acquaintances. This is a powerful negative incentive to participating in this behavior; often much more than a weak threat of criminal or civil legal action.
This is not without risks. In the first case, identification must rely on many points of commonality; there is significant potential risk to misidentifying a person. Some of this can be mitigated by managing the commentary attached to the ultimate exposure of the person. Let their friends, relatives and employers make their own determination how to characterize the nature of their actions; in many cases, what they have posted speaks for itself.
Another risk is that of retribution from those you target, which can be time consuming and expensive to manage. I have been the target of two attempts at obtaining permanent restraining orders from emotionally disturbed individuals, one of whom is a celebrity. While both of them failed (and indeed one was ordered to pay me a significant judgment in a successful Anti-SLAPP motion), these are a risk of dealing with these kinds of personalities.
In addition, the risk of extra-legal revenge cannot be underestimated. The people who are behind this kind of activity are often unconstrained by boundaries of human decency, and use threats, intimidation and outright lies fluidly to advance their objectives. Given that, a reasonable question is how far an advisor should go in meeting these illicit activities in kind? What are the ethics of dealing with virulent and often emotionally ill online harassers?
While the answer to this is by necessity situational, I do not act publicly against a person in this circumstance until I have given them every opportunity to deescalate and disengage, usually over a period lasting for months. Having been forced to have public conversations about people’s illicit activities before, I know that it is profoundly harmful to their relationships and often their work or businesses. I do not make the decision lightly. In every case, it is at the end of a lengthy process when there is literally no other reasonable option left.
Managing virulent online harassment is most commonly a process of determining what your anonymous harasser most fears, and making that real. It is an unfortunate reality of the thinking pattern behind their behavior. But we usually do not get to fight the war we choose, but rather the one we get. Noxious behavior, however, is not an excuse for responding in kind. Using an ethical framework is more likely to secure affirmative results while minimizing potential problems.