Harassment, Redress & Roman Law

It seems as if, on the internet, harm can be done to others immediately, continuously, thoughtlessly, and unceasingly, and worse, without consequence to the perpetrator, who enjoys only satisfaction, righteousness, and immunity. It seems that a willingness to participate in conversations online is an implicit agreement to be subjected to harassment and abuse. Countless people–let me just say, most people I know with active online lives–have suffered this. People have committed suicide because of this abuse, old and young, but especially the young; countless people have withdrawn from both the online and offline world after having been subjected to online bullying; the victims, most often coming from the most vulnerable, protected groups, continue to suffer and retreat further from the full embrace of the world and its possibilities.

Those who suffer from racism, sexism, harassment and a daily parade of micro-aggressions have no recourse under any company’s Terms of Service, not to mention the law, unless an actual assault has taken place–and as is well documented, few of those cases are prosecuted, and of those, a vanishingly small number result in conviction. The punishments mostly accrue to the victim reporting the crime.

Online, in the various communities I’ve participated in, built and managed, I’ve written a half dozen Community Guidelines, and spent countless hours thinking through this problem. I’ve kicked countless perps off a dozen web sites, banned, muted and used secret troll-thwarting ninja techniques to perma-ban awful people using robust, well designed admin interfaces. I’ve even reported bad actors to the FBI.  I couldn’t think of how, under the law, the people who suffer from these agonies could be protected from, or receive redress from the thugs whose wrongs they had endured.  But today I happened upon an article about sexual harassment and Roman law, which presented a vision of the law that I hadn’t thought possible: Here’s what it said.

From its earliest codification in the Twelve Tables of 450BC, Roman law gave people a right to recover damages for personal injury.

The law expanded over the centuries to protect an increasingly wide range of personal rights by means of an action known as the actio injuriarum (or action for injuries). By the time of the publication of the Digest of Justinian in 533AD, the action protected three groups of rights:corpus (bodily integrity), fama (reputation), and dignitas (dignity).

This is where the major difference lies between our English-based law of torts and Roman law: although the law of torts allows a plaintiff to sue for bodily injury and defamation, it offers no protection for dignity and therefore no right to sue for verbal insult, no matter how offensive.

The actio injuriarum lives on in modern legal systems. A good example is South Africa, whose legal system is based on Roman law. There, the action has been used to recover damages for sexist verbal insults, unwelcome propositioning for sexual intercourse, and unwelcome exposure to pornography. The action also protects privacy, so it has been used to recover damages in cases involving peeping Toms, stalking, and the publication of intimate facts about people’s private lives.

 

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