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  1. Law
July 12, 2012

Blackmail, A Very 21st-Century Crime

By Spear's

Blackmail may call to mind letters cut from newspaper headlines and assembled into threatening messages, but in the electronic era it is much simpler and more prevalent. Jo Sanders of Harbottle & Lewis discusses how high net worths can deal with blackmail
BLACKMAIL IS A crime du jour. Anecdotal evidence suggests that blackmail may be on the increase. If you thought that it a was the preserve of improbable thrillers and Alfred Hitchcock plots you would be sadly mistaken. The ease with which information can now be both captured and exploited electronically makes it a very contemporary crime.

By its nature it is difficult to evaluate the true scale that this threat poses today, as many victims do not report what has taken place. Those cases which emerge into the public domain therefore should be regarded as the tip of the iceberg.

The most recent high-profile case is that of Tamara Ecclestone, who is unusual in having waived her right to anonymity; it is reported she will give evidence. Two men have been charged withh aving demanded £200,000 under a threat that they would go to the press with allegations about her private life. The men, who deny all the charges, will be tried next year.

Since the beginning of this year alone there have been convictions in relation to the blackmail of Colleen Rooney; a police investigation was begun into the alleged blackmail of a Premiership footballer; and a wealthy businessman obtained a civil injunction after being targeted. These are just the cases which have made it into the press.

The offence consists of making an unwarranted demand with menaces with a view to making a gain or causing a loss (Theft Act 1968). While the “menaces” can comprise a threat of physical violence, it is now far more frequently a threat of a disclosure of information that accompanies a demand for cash. A key element in establishing whether a crime has been committed is whether the person making the demand can genuinely say that there were reasonable grounds for making it.

It is difficult to square this requirement of “reasonableness” with circumstances where a perpetrator is asking for payment for the return of stolen or even lost information, when it is coupled with a suggestion that the media will be involved if money is not forthcoming.

It may be that a perceived legitimisation of trading in information – newspapers, for example, offering cash for stories about celebrities – has served to encourage illegitimate demands for money. The ease with which information can be obtained also creates easy targets. This may be as a result of poor information security which permits unauthorised access to sensitive information, computer hacking, or the loss or theft of mobile devices.

In the case of the prominent businessman, the material included his private financial information and copies of personal emails, although it was not revealed how such data was accessed. It is also, of course, simple for someone to collate substantial private information by merely targeting a subject and taking photographs, and blackmail victims can be put under surveillance for long periods.
While electronic communications often provide the material over which a target is blackmailed, it can also offer the very means by which demands can be made, with the use of anonymous email accounts which the perpetrator believes cannot be traced. The web-based email account is today’s equivalent of cutting and pasting newsprint letters together to form an anonymous note.
ANYONE WHO IS perceived (rightly or wrongly) by others as having substantial means is at risk. It is certainly not always the case that victims have a dark secret that they wish to conceal. The threats may sometimes be based upon a complete fabrication or upon the disclosure of innocuous, albeit, private information. Indeed, in the Rooney case the perpetrators threatened the disclosure of entirely harmless family photographs. It is also not confined to the sphere of personal information: demands for over-generous payoffs, which have no proper legal foundation, have in the past beenmade by disgruntled former employees who believe they possess commercially valuable material which could harm a business’s reputation if it were made public.

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Victims of blackmail are generally entitled at common law to remain anonymous and may also seek certain protective measures over the sensitive information which lies at the heart of the case. However, the criminal justice system is inadequate in representing victims’ interests and, without the appointment of representatives to assert those rights with sufficient vigour, victims’ rights can be overlooked. According to one victim, the police said that they could not guarantee that his name and details would not become public as a result of their investigation. This seems an inadequate level of victim protection and demonstrates the need for independent advice.

There are measures that a victim, or indeed potential target can take. As a preventative measure, high profile or high net worth individuals should always assess their information security and the ease with which third parties who have a malicious intent could gather information upon them. Where it appears that confidential or private information may have fallen into the wrong hands, then an application to the Court can be made for the recovery of that material and destruction of any copies.

And if matters have progressed further and threats are being made anonymously, there are legal and technical steps which can aid in unmasking the perpetrator. Of course, for each attempt, there will be a different response to the threat and this should always be dictated by the particular circumstances and risks. The idea of being blackmailed may seem fanciful, but it is a real problem and it is happening today.

Jo Sanders is a partner at London law firm Harbottle & Lewis

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