The Blackmail Paradox in the Age of the Keyboard Warrior

“Blackmail threats are e-mail from a madman.” - Michael Bassey Johnson, Master of Maxims

Introduction

The age of the internet and social media has brought about the evolution of a new class of warriors amongst our society – the keyboard warrior.

Those individuals who find themselves among this new class of warriors are often described to be more belligerent with an aggressive bravado because, as it turns out, it is far easier to adopt the personality of a 6-foot-8 Olympic wrestler when you are fighting from behind the confines of a keyboard. Instead of liquid courage, the dawn of keyboard courage is upon us.

Yet, it is crucial to remember that acts perpetrated on the internet is just as accountable in real life. In recent years, internet crime such as doxing, criminal intimidation and blackmail has become a greater concern than ever before.

Criminal Intimidation and Blackmail

Criminal Intimidation is the use of a threat in order to induce the recipient or any other person to do an act and/or omit an act that he or she is not legally bound to. Whether such a statement will be considered as a threat in the eyes of the law is a question of fact and particular to each incident. Accordingly, the key element in criminal intimidation is whether the threat was issued with an intent to cause alarm. Criminal Intimidation is an offense pursuant to section 24 of the Crimes Ordinance (Cap. 200).

Blackmail is the making of any unwarranted demands with menace (e.g. using threat). The elements and definition of blackmail is the making of an unwarranted demand with menaces. Blackmail is an offence under section 23 of the Theft Ordinance (Cap. 210).

The most common example is where a victim is asked to pay a sum of money, failing which, publication of sexually explicit photos will be made.

But not all criminal intimidations/blackmails are as explicit as above. In the scenario below for example, the question arises as to whether the threat of causing potential trouble for the recipient at work (thereby causing alarm to the recipient) made with a view to induce unwarranted acts/omission of which the recipient is not legally bound to do is sufficient to be construed as a form of criminal intimidation under law.

The Scenario

Message: “Friend A showed me your two court decisions/articles referring to my case [which had undesirable outcome]. I’m sure the client will give you lots of fun stuff to cite/write about by the time we get through the CFA! We will get you to Part 15! Trust all is well at your new firm and say hi to your firm’s partner X. We were associates together back in the day.”

Potential/Intended Interpretation: “Cite the case again and I will make you lose your job at your new firm by leveraging my past relationship with partner X ”

(the “Scenario”)

Analysis

It should be noted however that a key hurdle for a prosecutor to overcome any such cases is the establishment of causation. For example, if the act in question is merely that of a statement of fact without any hint of consequences (e.g. in an educational setting), then there is no case for criminal intimidation.

“I’m not threatening the king, ser. I’m educating my nephew. Bronn, the next time Ser Meryn speaks, kill him. That was a threat. See the difference?” - Tyrion Lannister from the Game of Thrones

In the scenario above, the implied consequence when read with the greater context of the entire message can be made out (e.g. threat of workplace harassment is in the same sentence as the unwarranted complaint). In this particular scenario, the sender was clearly attempting to induce the recipient to stop certain action (e.g. writing about cases published by the Judiciary) despite the fact that the recipient was in no way legally bound to do so. Further, the statement can be said to have been made with malice.

Potential Consequences of Internet Crime

Both law enforcement and the Courts have taken an active stance in tackling cyber bullying related crimes. In the recent case of 香港特別行政區 訴 陳景僖DCCC 164/2020 for example, the crime of doxing was prosecuted to the fullest.

Conversely, internet crime such as criminal intimidation and blackmail also carries real world consequence. Blackmail for example carries a maximum sentence of 14 years in jail.

Conclusion

Therefore, whilst keyboard courage (similar to liquid courage) may give you the false sense of insulation, always remember:

1. Do not threaten. A threat with unwarranted malice is a crime under the laws of Hong Kong and will carry real life consequences (e.g. jail time);
2. Virtual action matters! Your actions on the internet will carry real life consequence. If you think consequence in person is dangerous, the same applies online; and
3. Stay sober. The combination of liquid courage and that of keyboard courage can be disastrous. The age of internet has made every netizen a potential “drunk-ex” candidate. Such drunk text, whether intended or un-intended can have real world consequences. Alas, it is trite law that drunkenness, whether voluntary or not, is of no defence!

Jurisdictions

Solicitor, ONC Lawyers

Joshua Chu is a Litigation Solicitor qualified to practice in Hong Kong. Before becoming a lawyer, Joshua worked in the healthcare industry serving as the IT department head at a private hospital as well as overseeing their procurement operations.

Since embarking upon his legal career, his past legal experience includes representing the successful party in one of Hong Kong’s first cryptocurrency litigation cases as well as appearing before the Review Body on Bid Challenges under the World Trade Organization Government Procurement Agreement concerning a health care industry related tender.

Today, Joshua’s practice is mainly focused in the field of dispute resolution and technology law.

Aside from his legal practice, Joshua is currently also a Senior Consultant with a regulatory consulting firm which had been founded by ex-SFC Regulators as well as being a management consultant for the Korean Blockchain Centre.

Partner, ONC Lawyers

Michael Szeto is a litigation partner of ONC Lawyers and heads the firm’s Employment practice. Prior to joining the firm, he had practised with various prominent law firms in Hong Kong. He has many years of experience in handling complex commercial dispute resolution, shareholders’ and joint venture disputes, bankruptcy and insolvency matters, debt recovery and mortgagee actions. He also routinely deals with regulatory actions and compliance matters under the Securities and Futures Ordinance, the Hong Kong listing rules and anti-money laundering laws and guidelines.

On the employment side, Michael often advises on various contentious and non-contentious employment matters, covering contract reviews, termination disputes, injunctive relief, discrimination and harassment claims, data privacy matters, as well as advice on matters relating to team moves, remuneration packages and employee incentive schemes. He is a frequent author of employment articles in industry publications and presenter to legal and human resource professionals.

Michael’s broad clientele includes listed companies, directors, shareholders, local and overseas banks, financial institutions, local and international corporations as well as statutory bodies.