What Exactly Constitutes Harassment On Instagram?

Illustration by Anna Jay.
Recently, Sam (not her real name) has been waking up to find that her phone has blown up with Instagram notifications. They’re from the newly ex-girlfriend of a guy she is friends with, who likes and then unlikes her old posts in the small hours of the morning. 
"Having recently gone through a fairly major break-up myself I was able to empathise with the compare-and-despair Instagram spiral [she appeared to find herself in]," Sam explains to Refinery29. 
"However, it did make me feel a little on edge," she adds. "I hadn't done anything wrong, I was in no way involved in her break-up and nothing had ever happened between her boyfriend and me. It felt a little bit intimidating, like she was trying to say, 'I see you... Don't even think about it...' just in case I fancied her ex. It was an impingement on my space." 
Most of us would never dream of behaving in real life the way we do on Instagram. "Stalking" the profile of a potential new partner has become a barely questioned part of dating culture, ditto checking in on your ex’s feed and ending up on their new girlfriend’s best friend’s page in less than two minutes. 
We do this because the digital realm at once removes us from and brings us closer to other people; social media gives us a coded cover under which we can break social norms and cross boundaries. 
If we did the same in the physical realm, it would be unacceptable. 
You wouldn’t stand outside another person’s house after a first date, peering through their windows. You wouldn’t send them a message of approval via a handwritten note slipped into their coat pocket. You wouldn’t call their ex to let them know you exist.
Social media might have normalised stalking but all of the above would be considered incredibly creepy IRL. More than that, it would potentially be criminal too. So where exactly do we draw a line and, crucially, where does the law stand on all of this?

You wouldn't stand outside another person's house after a first date, peering through their windows. You wouldn't send them a message of approval via a handwritten note slipped into their coat pocket. You wouldn't call their ex to let them know you exist.

Dr Leonie Maria Tanczer is a lecturer in international security and emerging technologies at University College London. She explains that while we may have many different laws to turn to, none of them is sufficient for dealing with the nuanced interactions of social media.
"When it comes to online abuse, there are many different laws that could be used to prosecute offences under, however these were never written with the intention of how they would work in the online sphere in mind," she explains.
"The problem with transporting [these laws] onto a platform like Instagram is that they require a written and permanent form of evidence that prosecutors can see. And then [there is the issue] that the abuse is also happening on a commercial platform, which means there is a mediator [to factor in]."
Platforms like Instagram already have a number of tools to prevent online abuse from occurring – and to detect it happening in the first place. 
Now, Sam’s experience appears to be fairly mild given the levels of stress she describes experiencing. She was never threatened. But had the interactions continued or escalated into DMs and comments containing abusive messages, they could have been considered malicious communication. This offence consists of a message sent to another person or via a public communications network that is threatening, obscene or grossly indecent in some way. 
This is what happened to Marie. She contacted the police after a video of her being verbally abused by a group of teenage boys on the train went viral on Instagram. After this happened, she was bombarded with abuse
"It was horrible," she says. "At the time the video was filmed on one of the boys' mobile phones, I was left shaking and worried they were going to hurt me. Then when this happened, I felt utterly humiliated all over again. 
"I reported the video via Instagram and messaged the original poster to ask them to take it down but it just kept popping up on other profiles."

When it comes to online abuse, there are many different laws that could be used to prosecute offences under, however these were never written with the online sphere in mind.

Dr Leonie Maria Tanczer, University College London
"There are technical measures that allow video content that is uploaded again to be flagged with a code – and if it is detected again by the platform, they can take it down," Dr Tanczer explains. "But if you modify the video, or remix videos together, they can’t flag it. This needs to be improved and to become cross-platform compatible."
Unfortunately, this meant that Marie was unable to get the video completely removed. 
"How we will tackle this going forward remains to be seen," says Dr Tanczer. "In the future, perhaps someone will invent a pin we can put on our clothes that would blur us if someone else tried to take a picture or a video of us."
For now, a spokesperson for Facebook, which owns Instagram, told us that keeping people safe online was a "top priority" for them and emphasised their commitment to fighting all forms of bullying. 
They said: "Bullying or harassment is not tolerated on Instagram and we have invested in technology which can proactively detect harmful content, expanded our dedicated safety and security team to over 35,000 people worldwide, and built strong partnerships with charities to provide direct access to mental health support when people might need it most."
Someone like Sam, for example, could take advantage of in-app privacy tools, such as blocking an individual from being able to view their account or interact with it, screening follower requests and reporting abusive posts to be moderated and removed. 
However, like all social media sites, Instagram still faces many challenges in maintaining the safety of individuals. 
"A big problem is the automation of the [detection of harassment or abusive language] process," Dr Tanczer continues. 
Currently, online abuse is monitored automatically through keyword algorithms by computers, as well as content monitoring, which is done by actual people. Both approaches make judgements based on Instagram’s own community standards – a code of conduct carefully designed to work in tandem with the law of the legal territory it sits in. 
"The problem comes with nuances that algorithms can’t detect," says Dr Tanczer. "If we think about sarcasm, which is hard to detect in text for many humans, how are we to train a machine to detect it? That is something we haven’t figured out, and while we can’t define it ourselves, we’ll have difficulty training machines on that."
We may soon be forced into a compromise, though. The government has announced that it is giving Ofcom powers to help police harms online – and to ensure platforms like Instagram comply with a new legal "duty of care" towards users. Under the original proposals, outlined in last year’s online harms white paper, a website that does not fulfil that duty of care would face a fine, its senior managers could be held criminally liable or access to the site be blocked entirely.
As things stand, in order to bring a criminal action against a harasser online you need plenty of concrete evidence. This isn’t as straightforward as it might sound. 
Karen Holden is the CEO and founder of London legal practice A City Law Firm. She works with numerous cases specialising in breaches of privacy as well as online issues.
To be taken seriously by the courts, she explains, victims of online harassment face the burden of having to provide concrete evidence that they are suffering from this type of treatment, and that they are in fear of their own personal safety. 
"To get an injunction against online harassment, you would need to prove you feel you are in imminent danger and this would need to be an urgent matter," Holden tells Refinery29. 
"So, for example, if such conduct was happening for a long time and you accepted it and did not feel that it was a threat to you, this could prevent an injunction order from being made."
Text messages, photos, videos of witness statements from people who have seen harassment online – or anyone you’ve shown messages to – would be needed to form a case. This is hard to do if, say, you are sent one-view-only videos or photos or, as in Sam's case, being badgered over likes and follows.
In England and Wales, giving someone unwanted attention online could be considered harassment – a crime legally defined by a clear "course of conduct" which consists of two or more related occurrences which have caused some alarm or distress. 

Online harassment is a difficult area to prove. When there is no assault involved it is hard to see sometimes in the eyes of the law how someone may need protecting.

Karen Holden, CEO and founder, A City Law Firm
Meanwhile, stalking online has to feature repeated attempts to contact a person without permission in a way that could cause fear or distress.
In more sustained instances, online harassment or abuse could also be investigated as a hate crime. And then there are harassment offences considered under the Public Order Act 1986 and the Protection from Harassment Act 1997, a breach of which would send a guilty perpetrator to jail for up to six months. 
With all these various ways to define and convict harassment online, you’d think it was regularly prosecuted, right? You’d think the law would act as one big omnipresent red flag waving in the face of any potential creep before they’d so much as dare to follow you. 
"It is a difficult area to prove and an area not understood as well as it should be, or taken as seriously as it needs to be by the police and the legal system," Holden continues. 
"When there is no assault involved it is hard to see sometimes in the eyes of the law how someone may need protecting."
The other problem is with ascertaining the identity of the person suspected of harassment. 
"Firstly, you should obtain the email address or home address of the person involved," Holden adds. "Then a cease and desist letter should be sent to the person who is conducting this activity to inform them to stop or legal proceedings will commence and an injunction will be obtained."
Of course, this won’t always be easy either. Particularly if the account trolling you is anonymous. 
Solving harassment online, Holden concludes, is a game of cat and mouse that we might never win. 
"We have always had new technology to mitigate against," she explains, "it’s just that now it’s even more difficult to do so. Once we solve one problem, someone else will invent the technology to circumnavigate it and the game starts again."
According to a 2019 survey by Ofcom of 500 women in the UK, 61% of respondents believed the online abuse and harassment of women is common, while 47% believed that current laws are inadequate. Furthermore, a recent report by the Alan Turing Institute said that the prevalence of legally defined online abuse was incredibly low. Across all forms of online abuse, including harassment, fewer than one offence per 1,000 people in the UK was recorded. Tellingly, in the Home Office’s 2018/19 hate crime report, no figures were given for online hate due to concerns about the quality of statistics – an issue the Institute branded "a serious limitation of existing reporting".
It’s clear that the law hasn’t yet caught up with the digital realm we inhabit today. Trolling is now, regrettably, a fact of everyday life and perhaps we all need to check ourselves a bit more when it comes to how easily we use the word 'stalking' and allow it to normalise problematic, even obsessive behaviours. 

More from Living

R29 Original Series