CRIMINAL PROTECTION AGAINST ELECTRONIC HARASSMENT DUE TO COVID-19 PANDEMIC: A COMPARATIVE STUDY BETWEEN IRAQI AND FRENCH LAW PJAEE, 17(6) (2020)
CRIMINAL PROTECTION AGAINST ELECTRONIC HARASSMENT DUE TO COVID-19 PANDEMIC: A COMPARATIVE STUDY BETWEEN IRAQI AND FRENCH LAW
Dhia Moslem Abd Alameer Ghaibi
1Department of Criminal Law, Faculty of Law, University of Kufa, Najaf, Iraq.
Dhia Moslem Abd Alameer Ghaibi , Criminal Protection Against Electronic Harassment Due To Covid-19 Pandemic: A Comparative Study Between Iraqi And French Law , Palarch’s Journal Of Archaeology Of Egypt/Egyptology 17(6). ISSN 1567-214x.
Keywords: Electronic harassment, Corona pandemic, international agreements to prevent harassment, Iraqi penal code, French penal code.
Abstract: Harassment or so-called bullying is an ancient phenomenon in societies. It has different causes that may be due to the individual himself or the individual's environment. Harassment also has many types of material, such as beatings and assaults on people or moral contempt for the individual. Itis the resulting significant damage that may cause the individual and may lead to suicide or leave work.Because of the outbreak of Corona disease, another type of harassment has emerged towards the individuals affected, especially with social media. Electronic harassment has occurred towards these individuals. However, there are international conventions and recommendations urging states to establish laws to criminalizeharassment. We find that Iraqi legislation has a significant lack of criminal protection compared to French legislation, which continues to change and amend its rules to keep pace with developments in society.
Introduction: Harassment, in general, is the injustice or repeated physical or psychological persecution of a less powerful person by another, more powerful person or group of people. It results from the imbalance of power between the bully and the bully (thevictim). That is, it is a frequent aggressive behavior aimed at deliberately harming the other person and is characterized by certain ways to gain power at the other person's expense. Harassment is often, therefore, a subject for the vulnerable party and is not limited to children only, as this act is defined by the same definition when it is committed against adults. However, some have called it harassment, harassment, or stalking the victim for financial or sexual purposes (Kiriakidis & Kavoura, 2010). The research on harassment dates back to the 1970s in some European countries, particularly Scandinavia, where educational authorities have conducted 16191
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many exploratory studies on the phenomenon of harassment in schools following the suicide of three teenagers because of persecution and intimidation of some classmates. In the 1980s, harassment in schools attracted a great deal of attention in Japan. The results of several studies on this phenomenon have shown that one-third of middle school students were victims of this type of violence. By 2000, this phenomenon had occupied a high degree of interest in many countries such as England and other western European countries and North America, Australia, and New Zealand. This was accompanied by numerous research and studies that recommended intervention programs to reduce and eliminate this phenomenon. (Beran & Li, 2005). But legally drafting the subject of harassment, U.S. attorney Nancy Willard attributes. Nancy Willard points out that harassment is "defamatory language of bullying behavior that includes discrimination or harassment that reveals personal information or contains offensive, vulgar or offensivecomments." It also added to the content of the definition the use of the internet and theintentions of the information. Harassment is any abuse or harmful act by one person against another or a group of individuals against one person or another. Electronic harassment is a repeated behavior aimed at physically, verbally, socially, or sexually harming another person by saying or acting to control and humiliate the victim and obtain illegal earnings from her through social media (Willard, 2011). With a simplified definition of electronic harassment, e.g. (deliberately frequently harming others by using the internet such as email, electronic games, text messages, and social media such as Youtuber Instagram and Twitter)(Moreno, 2013). The main factor in harassment is the intent to harm. It may be intended to hurt for joking or be serious, and it may be small orlarge. But whatever the intention, no matter how big, the result is that someone will be exposed to the abuse. But electronic harassment is different from traditional harassment. It allows the bully to harass the victim at any time and reduces the level of responsibility and accountability of the bully than in face- to-face harassment. It is more dangerous as it breaks into houses through modern means of communication. Therefore, the importance of criminal protection against electronic harassment due to the Corona pandemic is evident through the novelty of the subject and the significant adverse effects that harassment has on the victim psychologically and socially. The research problem also lies in the lack of Arab legislation, particularly the Iraqi Penal Code, and its inability to keep pace with the development of information technology and its accompanying major protection problems, especially at the moment. Therefore, the research approach will be an analytical inference and compare French law to the best solutions offered to the Iraqi legislator in legal protection against new crimes, particularly electronic harassment.
The Electronic Harassment:
The Types of electronic harassment: Before talking about electronic harassment, it is necessary to refer to the subject of traditional harassment in general. There are several types of harassment developed by researchers, including physical harassment by physically harming the victim, such as beating, kicking and psychological harassment by psychologically harming the victim by underestimating her, such as laughing in a low voice, verbal harassment with abusive words and social harassment, such as deliberate disregard for the person and isolation (Leemis, Espelage, Basile, Mercer Kollar, & Davis, 2019). Traditional types of harassment can be divided into three; First, either by saying the word like a sword, the bully seeks to downplay the victim with contempt or ridicule.Second: or it is actually like physically harming a person or making deliberate movements or laughter.Third: or even to refrain from saying or acting such as intentional disregard for the person and isolation. Electronic harassment, which is made using social media, is in many ways (Fenaughty & Harré, 2013).We can summarize them: 1. Threatening messages that arrive from an anonymous source to the mail or personal account in an application repeat the verb. 2. Socially and morally inappropriate comments on a private image, article, or video posted
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on the internet and circulated among the community. 3. Post authentic or modified images in which the other party appears to be in a position that others do not want to see. or spread a rumor or information about the other party to abuse or discredit. or circumvention and leaking information that the other party never wishes to share with anyone. 4. Harassment and extortion through multiple electronic communication channels.
5. The telephone call from a known or unknown party spreads rumors about another party through which it aims to harm and discredit the other. 6. E-rejection or exclusion occurs when someone does not respond to an email or instantly as quickly as expected.
The reasons and damages of the harassment: Studies attribute the emergence of harassment in schools to changes in human societies, mainly related to the emergence of violence and discrimination of all kinds, the disruption of family relations in society, the impact of media on middle and secondary adolescents, the large number of poor immigrants living in slums and the inability of the parents of these bullies to control their behaviors(Kiriakidis & Kavoura, 2010). In general, the most important reasons for the spread of harassment can be summarized in the following:
1. Family reasons: In contemporary cultures, families prioritize meeting children's physical needs by the shelter, clothes, health, decent schooling, and entertainment while neglecting the most critical role they have to play with the infant or young man, namely educational follow-up, behavior assessment, behavior adjustment, and a good education. To the pointof neglect, violence is one of the most important causes of harassment. The child, who grows up in a family atmosphere characterized by violence between spouses and children,must be affected by what he has seen or what has been done. The government's response to the 2009 national programs is to address child abuse and the need to address the issue of child abuse (Bocij, 2004).
2. Psychological reasons: Often, an individual can resortto violence due to his illness and behavioral disorders that need treatment and intervention from professional people, such as pediatric psychiatrists, psychologists, or school counselors.
3. Reasons associated with the development of information technology: Electronic games usually rely on concepts such as superpower, crushing opponents, and using all methods to collect the highest points and win without any educationalgoal. Therefore, we find children addicted to this type of game, who consider daily life, including school life, to be an extension of these games. They practice their lives in their schools or among their acquaintances and those around them in the same way(Einarsen, Hoel, Zapf, & Cooper, 2010). With a simple analysis of the films shown on television, whether directed at adults or young people, we note that scenes of violence, brutal murder, and human self-deprecating have increased dramatically in recent times. It is no secret to anyone the seriousness of this, especially if we evoke the child's tendency to believe these things and his innate tendency to imitate and reproduce (Fauman, 2008).
4. Reasons related to school life: At present, the limits of respect between the student and his teacher have disappeared. The prestige of teachers has declined, which has encouraged some of them to bully and harass others, just as it occurs in societies when the importance of the state and institutions decreases. In addition,
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CRIMINAL PROTECTION AGAINST ELECTRONIC HARASSMENT DUE TO COVID-19 PANDEMIC: A COMPARATIVE STUDY BETWEEN IRAQI AND FRENCH LAW PJAEE, 17(6) (2020) teaching in traditional ways that adopt the teacher's centrality as the sole source of knowledge and as a possessor of absolute power within the classroom can lead the latter to adopt violence and exclusion as a method of solving problems within the school, creating an environment suitable for the growth of the phenomenon of harassment (Stein, 1995).
After we know the causes of harassment, the question arises, what are the damages of electronic harassment in general? Harassment generally results in the deterioration of different degrees. Most of the studies conducted were on school students and the adolescent category in particular, where their psychological and physical changes are at their peak. They are subjected to significant emotional trauma and their willingness to react to the bullying party (Beran & Li, 2005). These damages can be mentioned: • Isolation from the surrounding society, bullying often causes psychological harm to the other party. • The victim's thinking about the problem, causing him to delay his studies, lose his job, social relationship,or suicide
Since the global spread of the Corona pandemic, this epidemic has arisen. It spreads across social media to hurt individuals who have the disease by shaming or exposing them to the public amid their rehabilitation, which has psychological and social implications for the survivor.Some countries are experiencing bullying cases against victims of the new COVID-19 pandemic by people, to say the least, who are ignorant and have no minimum human sense. This shameful behavior is a matter of solidarity and community solidarity, which are strongly needed to deal with this disaster, which has turned the world's nations into isolated islands.Occasionally, numerous media sources report on bullying perpetrated by individuals that cannot be identified as oblivious, unconscious, or humane as victims of the current COVID-19 pandemic. The images and forms of this harassment are numerous. Still, they revolve around mocking these victims, considering them criminals, not victims. These people do not realize that they are not immune to the virus, which has infected heads of government, parents of covenants, businessmen, famous figures in journalism, art, sports, and others. Some of them lost their lives days after being infected with this deadly virus. There have been many facts to ridicule them, which has called on the responsible authorities in these countries to warn against these abnormal behaviors. It is emphasized that they can be classified as hate crimes, as laws in most countries prohibit such behaviors, which at the same time conflict with the system of values, traditions, and customs prevailing in different societies and rejected by equal human souls. Because the ban remains and people remain at home, there has been increased harassmentofindividuals, especiallychildren. Keeping children at home because of the Covid-19 pandemic makes them enter the internet at a younger age, spend more time connected to the international network and become more vulnerable to cyber-harassment. The new COV outbreak has also sparked a racist wave in most countries of the world towards Asians in general and Chinese in particular. Many bullying cases have been detected targeting Asian expatriates abroad (Blose, Umar, Squicciarini, & Rajtmajer, 2020). It has even come to the fore by bullying other countries, as China has said it has not kept secret about the new CORONA virus outbreak, so the United States should stop harassing (Chiang, 2020). Harassment by well-known people may alsonot come, and it is often sent anonymously, leaving further implications for checking abuse off the internet. Electronic harassment is also anonymous to undermine the sense of trust and security significantly for those receiving it, because it is difficult to prove without the intervention of the authorities in which the incident of ill-treatment originated. .
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The Criminalization of Electronic Harassment:
The Criminalizing of electronic harassment at the international level: On June 21, 2019, the International Labor Conference adopted Convention 190 on violence and harassment at work.In its preamble, the Convention emphasizes that violence and harassment in the world of work can constitute a violation of human rights or a violation of those rights.They present equal opportunities at risk, are unacceptable, and conflict with a decent job. The agreement also reminds states that they are responsible for promoting a general environment that is intolerant.The Convention states that harassment is a set of unacceptable behaviors and practices, or the threat of such behaviors and practices, whether they occur on one occasion or repeatedly. Additionally, the Convention declared that the Member States would follow a holistic approach to avoiding and reducing workplace abuse and discrimination in compliance with applicable legislation and national circumstances, coordinating with groups representing employers and employees. The ILO has issued other recommendations on workers and how to deal with COV underhealth procedures(Beqiraj, 2019). In addition to this agreement, there are international recommendations, including Reporters Without Borders (RSF). It can be summed up as follows: 1. Recommendations to States: - Confirm the responsibility of online platforms for the content they publish. An accounting system must be adapted based on the impact of their activity on the quality of public debate. States should back commitments regarding online platforms, especially regarding the openness of their management policies, by the values of free speech and the press. - Develop early warning mechanisms and rapid intervention in harassment and ensure good communication with the judiciary. - Ensuring the laws of response to any hate material are applied fairly and impartially. - Develop mechanisms to compensate for abuses against victims of harassment. (Such as financial compensation, or medical and psychological assistance, the residence has been changed.) - Countries should promote digital education to educate Internet users about the risks of harassment and its legal consequences.
2. Proposals to international organizations: - The United Nations should establish a monitoring mechanism for online violence and ensure that the UN Special Representative's plan is implemented. - Participating in research on patterns of electronic harassment. Organizations should help fund such studies to come up with recommendations to governments to combat cyber harassment. - The international and regional system for protecting human rights in these organizations should include monitoring harassment committed on the internet.
3. Proposals for digital platforms, media,and advertisers: - Digital platforms should be transparent in their rules to control their content over the Internet(Relly, 2021). It is by strengthening the nature of actions taken against digital harassment perpetrators. It must adopt alert systems towards content containing hate signals. - Encourage networks to share best practices to combat digital harassment by developing a comprehensive approach that includes editors, community representatives, digital security specialists, executives,legal officials, journalists within the media organization, and other media organizations. - Refusingto comment on sites involved in the dissemination of hate content.
Develop a code of conduct and ethics for best practices specialized in digital advertising. It should be done in cooperation with civil society organizations to ensure that the ad will not
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contribute to the financing of cyberharassment.UNICEF has called for coordinated action globally to prevent harassment and cyber harassment. UNICEF also warned of the dangers posed by violent phenomena and "harassment andcyber-harassment.They are also more likely to receive low grades in school exams, have poor self-confidence, and several health problems(Brackenridge, 2002).
The Criminalizing of Electronic Harassment At The National level: To know the legal problems in application, comparative law must be understood first, and as long as our research into comparative law is French law. Therefore, we will address the criminalization of harassment in French Law Aand then the criminalization of harassment in Iraqi Law B.
A. Criminalization of electronic harassment in French law: France is one of the first countries in Europe to take care of legal protection against online abuses and abuse. It is making significant efforts to change its legal texts in line with the development of society (Guerrero, 2004). In its legalization of the Penal Code, the French legislator provided for harassment or so-called moral harassment in three legal articles and three cases: First/ When one person makes harassment over another: (Article 222-33-2) Amended by Law No. 873 of 2014 of 4/8/ 2014 - Article 40. She was sentenced to two years imprisonment and a fine of 30,000 euros to anyone who harassed another person in the event of a deterioration in potential working conditions, an infringement of his rights and dignity, a change in his physical or mental health, or a violation of his professional future.Secondly, whenthere is harassment between spouses or partners in intimacy: (Article 222-33-2.1)Amended by Law No. 703-2018 on 3/8/ 2018 - Article 13. She was punished with three years imprisonment and a fine of €45,000, such as those who harassed the husband or associated under a civil solidarity pact or partner in intimacy. The repeated words or behaviors if led to a deterioration in his living conditions and a deterioration of his physical or mental health, whether these acts caused a total inability to work less than eight days or did not entail any inability to work.She faced five years in jail and a fine of 75,000 euros if she induced an inability to serve for more than eight days or committed such actions in the presence of a minor.The same penalties are imposed when a former husband or ex-partner of the victim commits this crime or a former partner associated with the latter under a civil solidarity pact.Third/ When harassment by more than one person falls on another person: (Article 222-33-2-2)Amended by Law No. 703-2018 on 3/8/ 2018 - Article 11. She was punished with one year in prison and a fine of 15,000 euros, anyone who harassed someone through repeated words or behaviors. The crime arises: A. When these words or behaviors are imposed on the same victim by many persons, in a manner of agreement or instigation by one of them, although each of these persons has not acted repeatedly. B. When these words or behaviors are imposed on the same victim, many people know that these words or behaviors are characterized by repetition even in the absence of agreement.
The acts mentioned below in paragraphs 1 to 4 are punishable by two years imprisonment and a fine of 30,000 euros: 1. When they are entirely unable to work for more than eight days. 2. When they commit the act against a 15-year-old minor. 3. 3. When committing an act against a person whose weakness is determined due to his age, illness, disability, physical disability, mental or pregnancy, it is clear or known to the perpetrator. 4. When committing the act using a public communications service online or through a digital or electronic intermediary. 5. When a minor is present, the act.
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The acts mentioned in paragraphs 1 to 4 shall be punishable by three years imprisonment and a fine of €45,000 when committed in two of the circumstances mentioned in paragraphs 1 to 5.In addition to these provisions, France continues its efforts, with a new law born in 2020 known as the AVIA law aimed at combating online hate content.Representative Laetitia Avia and manyof her colleagues presented the bill in the National Assembly on March 20, 2019. It was approved by the National Assembly in the first reading on 9 July 2019 with revisions by the Senate on 17 December 2019. The bill was then adopted in a new task with amendments, respectively, by the National Assembly on 22 January 2020 and the Senate on 26 February 2020. After the latest amendments to the draft, the law was passed on 13 May2020 and approved by the Constitutional Council on 18 June 2020, and published in the Official Gazette on 24 June 2020.The law aims to remove hate content from the internet (social media and search engines). In this sense, operators will have to delete it within 24 hours once they are notified of hate content. Otherwise, the operator may be fined financially.In addition to these laws, the National Committee for Information and Freedoms (CNIL)and the Supreme Audiovisual Council(CSA), and some associations such as e-Enfance are working to educate on the risks of harassment in France.
B. Criminalization of electronic harassment in Iraqi law: The amended Iraqi Penal Code No. 11 of 1969 did not refer to harassment but referred to the act of slander and slander, as well as the disclosure of secrets as follows: 1) Materials for ejaculation or insult: Article: 433 1- Slander is to assign a particular incident to others in one way of publicity that, if true, must be punished by those who have been given to it or despised by the people of their homeland.Those who throw others are punishable by imprisonment and a fine or one of these penalties.If it occurs by publishing in newspapers, publications, or in another media way, this is a strict circumstance. 2- 2. It is not acceptable for the ejector to establish evidence of what he has assigned unless the slander is directed at an employee or a public servant or to a person of public representative status. They are taking up an act relating to the interests of the public and what the bomber assigned is related to the function or work of the projectile; if he establishes evidence of all that he has given, the crime has disappeared.
Article: 434: Insulting others by throwing what is scratching his honor or considering it or hurting his feelings, even if this does not include the support of a particular incident. Individuals who insult others shall face a maximum of one year in jail and a maximum fine of 100 dinars, or a combination of these fines.If the insult occurs by publishing in newspapers, publications, or in another media way, this is a strict circumstance.
Article 435: Suppose defamation or insult occurs in the victim's face without publicity or in a telephone conversation with him or in a written letter sent to him or informed by another means. In that case, the penalty is imprisonment for not more than six months and a fine of not more than fifty dinars or one of these penalties.
Article 436: - There is no crime in what one adversary or on their behalf assigns to the other, or the person who slanders or insults him while defending his rights before the courts, investigative authorities, or other bodies, within the limits of what this defense requires.
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- There is no punishment for a person if he or she has committed slander or insult while in a state of anger immediately after an unjust attack on him.
2) The disclosure of the secret law stipulates: Article: 437: However, there is no punishment if the relevant secret is disclosed or the disclosure of the appropriate secret is intended to inform him of a felony or misdemeanor or prevent it from being committed. Article 438: He faces up to one year in jail and a maximum sentence of 100 dinars, or a combination of these fines. 1- Who published in one-way public news or pictures or comments related to the secrets of individuals' private or family life, even if it is true if its publication would offend them? 2- Those who have seen a letter, telegram, or telephone call in article 328 have been briefed by those who have not mentioned it, so they revealed it to anyone who has been addressed to them if it would cause harm.
Article 328 means every employee, public servant, or user in the postal, telegraph, and telephone services.We conclude from the study of the articles mentioned above that the amended Iraqi Penal Code No. 111 of 1969 has imposed penalties for crimes of slander, slander, or secret disclosure. These articles are currently in place, but about cyber-harassment, the anti-cybercrime bill has been drafted since 2010 and has not been passed to this point. In addition, this draft is initially free of harassment and contains one text in Article 21/III containing broad and unspecified terms. It stipulates that he shall be punished by imprisonment for at least one year and a fine of at least 2,000,000,000 dinars and no more than 5,000,000 dinars for anyone who has assaulted any of the principles, religious, moral, family, social, or inviolability of private life through the information network or computers in anyway.Since the crime of electronic harassment is modern relative to modern ICT, there may be problems with application. The crime of defamation, slander, or secrets cannot be applied because harassment is another different crime. It frequently and hostilely falls in addition to its psychological and social impact on the victim, which the French legislator was called upon to amend his law and ban harassment or harassment. In addition, recent amendments to French law, particularly about the Anti-Hate Content Act 2020.
Conclusions and Discussion: In conclusion, we have reached a set of findings and recommendations. Theresults indicate that the term harassment comes from an imbalance between the perpetrator and the victim and repeated negative statements and acts aimed at harming the victim.Traditional harassment is different from electronic harassment, as the latter and its psychologically and socially harmful effects arechallenging to cope with, as in conventional harassment. Electronic harassment has many types, especially after developing information technology, diversity in social media programs and media, and various communication methods. It can happen even in games. The ban on COV has led to more use of the internet and social media than before, and the incidence of the disease has made the world more isolated. Electronic harassment of the disease has increased psychological and social damage to the weaker party, especially children. States' increasing tendency to protect against harassment because of their devastating effects on the psychological and social situation of the victim by concluding an international convention is requiring states to amend their legislation. In addition, the recommendations of international organizations of member states should consider the effects of this shameful behavior.States amend their legislation, including France, because although they keep up with their laws on developments in information technology, they are amended, and new laws are put in place. On 24 June 2020, to combat the content of online hatred, which was approved after 16198
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Source of Funding: Self-funding
Conflict of Interest: The authors declare no conflict of interest,financial or other wise.
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