No safety net: technology-facilitated domestic abuse

We all love our phones.  In the UK, we spend a daily average of 2 hours 52 minutes on our mobile devices.  That's just over 20 hours per week, and 43 days per year.  In the palm of our hands, we have the ability to work, to keep in contact with friends and family, to check the news, to shop, to keep tabs on our health, to learn languages and more.  Technology is a marvellous thing, but it can also be misused, including as a tool of domestic abuse.

What is tech abuse?

Technology-facilitated abuse is the use of technology to control or harass another person.  It may occur in a wider context of domestic abuse.  Examples of technology-facilitated domestic abuse include:

• Monitoring a person's location via their smartphone or other wearable devices (e.g. fitness trackers or earphones).
• Use of smart home devices (e.g. home security or doorbell cameras or baby monitors) to listen in on a person and record them.
• Intimidation via smart home technology such as smart locks, heating-control or music-control.
• Use of social media to harass or intimidate, or to share (perhaps AI-generated) sexually explicit content.

England does not collect statistics on technology-facilitated domestic abuse, but it presumably forms some part of the experience of the at least 2.1 million people that we know to have experienced domestic abuse in the UK in 2023.

What legal protections does England currently offer?

There is currently no statutory definition of technology-facilitated domestic abuse, nor is there a single or coherent set of laws designed to address it.  Instead, given the recency of the issue, there is a patchwork of different laws.  Some of these sit within a family law/domestic abuse sphere, and others sit outside of the family law sphere and might have been designed with a quite different purpose in mind.

There is a statutory definition of domestic abuse more generally, which was introduced in 2021, and this would cover technology-facilitated abuse where it occurs in a domestic context.  Under the statutory definition, the behaviour of a person towards another person is domestic abuse if both parties are aged at least 16, and are personally connected to each other (which includes them being or having been married or civil partners, engaged, cohabitants, in an intimate personal relationship, parents of the same child or being otherwise related to each other).  Behaviour is abusive if it consists of physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse, or psychological, emotional or other abuse.

The main laws providing remedies for domestic abuse (and therefore also technology-facilitated domestic abuse) are:

• Domestic abuse laws (predominantly the Family Law Act 1996).  These sit within a family law context so are available to victims who are family members or otherwise 'associated with' (which broadly corresponds with 'personally connected with' explained above) a perpetrator.  A non-molestation order confers protection against any form of domestic abuse falling within the statutory definition above where it is serious enough to warrant the court's protection, while an occupation order can require a perpetrator to leave a home or part of a home. Breach of a non-molestation order (of which the respondent was aware and without reasonable excuse) is a criminal offence for which the punishment is imprisonment, and it is also a contempt of court (which means that if the state chooses not to prosecute, a victim can still enforce by applying within civil proceedings to have the perpetrator committed to prison or fined). Breach of an occupation order (unlike a non-molestation order) sometimes is and sometimes is not an arrestable offence and this depends on whether a power of arrest was attached to the order when it was made, but it can (like a non-molestation order) also be enforced as a contempt of court where appropriate.

• Domestic Violence Protection Notices/Orders (initially enacted via the Crime and Security Act 2010).  These allow the police and magistrates' courts to provide protection to victims in the immediate aftermath of a domestic abuse incident (which again includes any form of domestic abuse within the statutory definition above).  They are useful where there is insufficient evidence to charge an alleged perpetrator and they give protection for up to 28 days to give victims time to make decisions about their options and future safety with the help of legal advice and support agencies.
• Aside from the fact that there may be a criminal element to any of the above, there is a specific criminal offence of "controlling or coercive behaviour in an intimate or family relationship" under s.76 of the Serious Crime Act 2015.  It here needs to be the case that the victim and perpetrator are personally connected, that the behaviour has a serious effect on the victim (which either means that the victim fears on at least two occasions that violence will be used against them, or that it causes serious alarm or distress which has a substantial effect on their usual day-to-day activities), and the perpetrator needs to know or ought to know that their behaviour will have this effect.

Outside of the family law/domestic abuse sphere:

• Protection from Harassment Act 1997.  This sits within both a criminal and civil law context (so its protections extend beyond family members or associated persons).  It creates a general prohibition on harassment, which is not defined but it needs to be the case the person whose behaviour is in question knows (or ought to know) that their behaviour amounts to harassment, which can include causing another fear, alarm or distress   Harassment can be one of a number of a criminal offences, which can be punishable by imprisonment or a fine; and it can also separately be the subject of civil remedies (e.g. the court may grant a restraining order or put in place an exclusion zone or it may award damages for losses such as anxiety and financial loss resulting from the harassment). 
• Other civil claims can also be a route to securing other remedies. For example, a misuse of private information claim can arise where there is information in which a person has a reasonable expectation of privacy, though a balancing exercise needs to be conducted between that right to privacy as against (for example) another party's right to freedom of expression. Certain types of information, including information about an individual's sex life, are deemed to be of the most private nature and are therefore afforded greater protection. The remedies available in misuse of private information claims include injunctive relief, which if granted can prohibit the sharing of the information and impose sanctions if breached, and damages.  Injunctive relief can be applied for on an urgent basis and can therefore be a fairly quick remedy to pursue .  Misuse of private information may also be of assistance where a spouse or partner has accessed their partner's phone messages or emails.  (If this happened in a purely personal context in the household then the General Data Protection Regulation (GDPR) would not apply, but misuse of private information claims can arise in any context).

Beyond the legal protections covered above, a number of organisations are already contributing to tackling the issue of technology-facilitated domestic abuse. To name a few:

• Refuge, a domestic abuse organisation for women, has advice on how to secure common items of technology.
• OurFamilyWizard, an app designed to help parents co-parent peacefully and manage shared schedules and information, integrates tech-solutions into its platforms which are designed to ensure that the exchange of information cannot be used as a tool of control, for example it scraps metadata from photos and ensures that communications are accurately documented.
• Technology company, IBM, has published a set of Five Technology Design Principles to Combat Domestic Abuse
• Google has taken action to remove 'stalkerware' apps from its app store.
• Monzo, a mobile banking provider, has a feature which allows a victim to talk to their bank about domestic and financial abuse without it appearing in their app chat afterwards.

The way forward

There is more than can be done in the area of technology-facilitated abuse, and it is not all about further legislation.  For example, Australia has created the Office of the eSafety Commissioner, which is a centralised body which exists to provide information, help and support for the Australian public about online risks and harms; or specialist tech abuse units could be established within police forces and support services.

A final word on children

This article focuses on adult victims of domestic abuse, but children can also be victims of domestic abuse where they see, hear or experience the effects of their parents' abuse.  It is also, sadly, possible for children to be tools in one parent's abuse of another.  In the tech sphere, it may be the child which is being directly monitored in order to indirectly monitor the other parent.  Their smart phones are just as smart as ours, and younger children's toys and baby monitors are surprisingly savvy too.  Following well-meaning efforts by companies such as Google to remove 'stalkerware' from their app stores, such functionality can now sometimes be found buried within parental monitoring apps.  

What takes place in a virtual space may sometimes be thought of as ephemeral.  But we must not fall into this trap with technology-facilitated abuse, especially given that the perpetrators of such abuse are often adept at convincing victims and others that a victim's allegations are fanciful or illusory.