Blackmail

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Blackmail is an act, often criminal, involving unjustified threats to make a gain—most commonly money or property—or cause loss to another unless a demand is met.^[1][2] It is coercion involving threats to reveal substantially true or false information about a person to the public, a family member, or associates, or threats of physical harm or criminal prosecution.^[1][3][4][5]

Blackmail is the name of a statutory offense in the United States, United Kingdom, and Australia,^[6] and has been used as a convenient way of referring to other offenses, but was not a term of art in English law before 1968.^[7] It originally meant payments rendered by settlers in the counties of England bordering Scotland to chieftains and the like in the Scottish Lowlands, in exchange for protection from Scottish thieves and marauders into England.^[3][8]

Blackmail may also be considered a form of extortion.^[1] Although the two are generally synonymous, extortion is the taking of personal property by threat of future harm.^[9] Blackmail is the use of threat to prevent another from engaging in a lawful occupation and writing libelous letters or letters that provoke a breach of the peace, as well as use of intimidation for purposes of collecting an unpaid debt.^[8] For the piece of information to be considered blackmail, the information obtained must contain items that the victim does not want revealed. ^[10] Some U.S. states distinguish the offenses by requiring that blackmail be in writing.^[8] In some jurisdictions, the offence of blackmail is often carried out during the act of robbery. This occurs when an offender makes a threat of immediate violence towards someone in order to make a gain as part of a theft.

Sextortion (Webcam Blackmail)[edit]

"Criminals might befriend victims online by using a fake identity and then persuade them to perform sexual acts in front of their webcam, often by using an attractive woman to entice the victim to participate. These women may have been coerced into these actions using financial incentives or threats." As reported by the NCA (National Crime Agency), both men and women can be victims of this crime. This crime can be done through crime groups or on an individualistic basis.^[11]

Etymology[edit]

The word blackmail is variously derived from the word for tribute (in modern terms, protection racket) paid by English and Scottish border dwellers to Border Reivers in return for immunity from raids and other harassment. The "mail" part of blackmail derives from Middle English male, "rent, tribute".^[12] This tribute was paid in goods or labour (reditus nigri, or "blackmail"); the opposite is blanche firmes or reditus albi, or "white rent" (denoting payment by silver). Alternatively, Mckay derives it from two Scottish Gaelic words blathaich pronounced (the th silent) bla-ich (to protect) and mal (tribute, payment). He notes that the practice was common in the Highlands of Scotland as well as the Borders.^[13] In Irish Gaelic, the term cíos dubh, meaning "black-rent" has also been employed.

By country[edit]

Australia[edit]

Victoria[edit]

The offence of blackmail is created by section 87^[14] of the Crimes Act 1958.

Sections 87(1) and (2) are derived from and identical to sections 21(1) and (2) of the Theft Act 1968 printed above.

Section 87(3) provides that a person guilty of blackmail is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).

South Australia[edit]

The offence of blackmail is created by Part 6B Section 172^[15] of the Criminal Law Consolidation Act 1935.

Section 172 provides that a person who menaces another intending to get the other to submit to a demand is guilty of blackmail, and may be subject to imprisonment (a maximum of 15 years for a basic offence or a maximum of 20 year for an aggravated offence).

Republic of Ireland[edit]

The offence created by section 17(1)^[16] of the Criminal Justice (Public Order) Act, 1994 is described by the marginal note to that section as "blackmail, extortion and demanding money with menaces". The offence is derived from the offence under section 21 of the Theft Act 1968.

United Kingdom[edit]

England and Wales[edit]

In England and Wales this offence is created by section 21(1) of the Theft Act 1968. Sections 21(1) and (2) of that Act provide:

(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

Construction[edit]

The Theft Act 1968 section 21 contains the present-day definition of blackmail in English law. It requires four elements:

1. There must be a "demand".
2. The demand must also have been accompanied or reinforced (at the time or later) by a "menace". Broadly, a menace is any threat, or implied consequence or action, which would coerce or pressure an unwilling person to accede (give in) to the demand.
3. The making of a "demand with menace(s)" must have been "unwarranted". Broadly, a demand with menace is always unwarranted unless both the making of the demand was reasonably justified, and its reinforcement with the "menace" was proper, in the belief of the perpetrator.
4. There must have been an intention by the perpetrator to make a gain for himself/herself or someone else, or to cause a loss to someone.

Therefore the requirement for this offence may be paraphrased as:

1. A person makes a demand of someone else, which is accompanied or reinforced in some way by some consequence if they don't comply, which would coerce an unwilling victim to do what is demanded,
   and
2. The intent is to make a gain (for themselves or anyone else) or cause a loss (to anyone),
3. and either
   (a) The perpetrator did not truly believe that the demand was based on reasonable grounds
   or
   (b) The perpetrator did not truly believe that the menace was a proper way to reinforce the demand.
   (or both)

The law considers a "demand with menaces" to always be "unwarranted" (unjustified), unless the perpetrator actually believed that his/her demand had reasonable grounds, and also actually believed that the menace was a proper way to reinforce that demand. These tests relate to the actual belief of the perpetrator, not the belief of an ordinary or reasonable person. Therefore tests related to what a "reasonable" person might think, and tests of dishonesty, are not often relevant - the matter hinges upon the actual and honest beliefs and knowledge of the perpetrator him/herself. The wording of the Act means that there is a presumption in law that demands and/or menaces are likely to be deemed unwarranted, unless the perpetrator shows evidence that they were believed not to be.^[17] However, once a perpetrator has defended him/herself by giving evidence related to the demand and menace both being believed warranted, the prosecution must overturn one or both of these claims to prove their case. The usual rule is that a criminal act, or a belief not truly held, can never be "warranted", although according to some authors, a "grey area" may (rarely) exist where a very minor illegality may be honestly believed to be warranted.^[18]

Additionally, a statement that would not usually coerce or pressure someone, may still be a "menace", if the perpetrator knew, believed, or expected that their specific victim would feel coerced or pressured by it. The law does not require a demand or menace be received by the victim, merely that they are made, therefore it is irrelevant whether the victim was affected or not, or even unaware of them (perhaps because they had not yet been received, read or listened to). Because the criteria include an intention to "cause" some kind of gain or loss, a demand for sex (for example) would not be considered blackmail, so threats with these and other demands are dealt with under a variety of other criminal laws. However even in these cases, a gain or loss of some kind can often be found, and then this law can then be applied.

In some cases, the perpetrator him/herself may claim to have acted under duress. The courts have ruled that a person who places themselves in a situation where they may be coerced to make a demand with menaces against a third party is likely, foreseeable, or probable, may not be able to rely on coercion as a defence, because they voluntarily placed themselves in such a situation. This issue has arisen, for example, in gang-related violence.^{[19][20][21][22]}

Menaces[edit]

The word "menaces" was adopted from sections 29(1)(i) and 30 of the Larceny Act 1916. Section 29(1)(i) made it felony for a person to utter, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing. Section 30 made it an offence for a person to, with menaces or by force, demand of any person anything capable of being stolen with intent to steal the same.

Thorne v Motor Trade Association (1937)^[23] is a leading case on the meaning of the word "menaces", decided under section 29(1)(i) of the Larceny Act 1916.^[24] The issue to be decided was whether the statement by a powerful trade association that a person found guilty of breaking their rules on price fixing would be "blacklisted", but could avoid this fate by paying a fine, was an "menace". It was held that the trade body had both the right to put persons on their blacklist, and also the right to offer a fine as an alternative to being put on a blacklist, therefore neither of the demand or the menace were ruled to be "unwarranted". (The Court noted that a plainly unreasonable fine could potentially be viewed as unwarranted.) In this case, Lord Wright said:

I think the word "menace" is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.^[25]

And Lord Atkin said:

The ordinary blackmailer normally threatens to do what he has a perfect right to do namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. [...] What he has to justify is not the threat, but the demand of money.
The gravamen of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that the threat is to do something that a person is entitled to do either causes the threat not to be a "menace" [...] or in itself provides a reasonable or probable cause for the demand.^[26]

R v Clear^[27] was decided under section 30 of the Larceny Act 1916. Sellers LJ said:^[28]

Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces ... but threats and conduct of such a nature and such an extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwilling to the demand would be sufficient for a jury's consideration.

and that:

There may be special circumstances unknown to the accused which would make the threats innocuous and unavailing for the accused's demand, but such circumstances would have no bearing on the accused's state of mind and of his intention. If an accused knew that what he threatened would have no effect on the victim it might be different.

In regard to the importance of the perpetrator's understanding of impact, in R. v Billy Joe (William) Temple (2008), the Court of Appeal reduced the perpetrator's original sentence, because it did not take into account, among other things, the appellant's lack of appreciation of the extreme nature of the impact of the menace to which he had been a party.^[29]

In R v Lawrence and Pomroy,^[30] the defendant argued that the direction given to the jury should have contained a definition of the word "menaces" in accordance with R v Clear. Cairn L.J. said:

The word "menaces" is an ordinary English word which any jury can be expected to understand. In exceptional cases where because of special knowledge in special circumstances what would be a menace to an ordinary person is not a menace to the person to whom it is addressed, or where the converse may be true, it is no doubt necessary to spell out the meaning of the word.^[31]

In R v Lambert (2009), it was held that:

[A] demand does not have to be made in terms of a demand or requirement or obligation. It can be couched in terms which are by no means aggressive or forceful. Indeed, the more suave and gentle the request, the more sinister in the circumstances it might be.^[32]

The word "menaces" has been held to include the following:

• a threat to publish attacks on a company calculated to lower the value of its shares^[33]
• a threat to reveal that the victim has not honoured a debt^[34]
• a threat to place the victim on a trade association's "stop-list"^[35] - although in that specific case, the menace was found not to be "unwarranted" because it was believed - and the court agreed - that it was justified and reasonable. The court commented that if the fine had been completely unreasonable, the menace might have become unwarranted as a result.
• a threat to refrain from giving evidence in an action^[36]
• words such as "I'm not threatening you. I'm giving you a promise. Let's just leave it at that", or "I've not sent nobody to see you yet" ^[37]
• a person who phoned a relative posing as a victim of false imprisonment, to say he was at risk of harm and needed money to pay off his captors and be freed. In this unusual case, although posing as victim and not threatening harm to the relative, the statement was capable of being a menace because of its coercive nature and the pressure it would apply on the victim, it was unwarranted, and there clearly was a demand. The ruling stated that "It is how the demand and menace affects the victim that matter".^[32]

Professor Griew said that the word "menaces" could conceivably include:^[24]

• a threat of physical violence to the victim or another
• a threat of prosecution
• a threat to reveal actual criminal offending or sexual misbehaviour^[38] or to publish false allegations of the same

David Ormerod said that it extends to a threat to damage property.^[39]

It should be remembered that the offence requires either an unwarranted menace, or an unwarranted demand, or both; not all menaces nor all demands are "unwarranted", and the belief of the perpetrator is the determining factor. If both the demand and the menace are each believed to be proper and reasonable to make, in law, then - depending upon the details of the case - the kinds of actions listed above may no longer be criminal offences. However as stated above, a criminal demand or menace can never believed to be "warranted", and actual knowledge of the victim and their state of mind or expected response may change a warranted matter into an unwarranted one.

Mode of trial and sentence[edit]

Blackmail is an indictable-only offence. A person convicted of blackmail is liable to imprisonment for any term not exceeding fourteen years.^[40]

In R v Hadjou (1989),^[41] Lord Lane CJ said that blackmail is one of the ugliest and most vicious crimes because it often involves what he described as "attempted murder of the soul". He said that, perhaps because courts always impose severe sentences, one seldom finds a person convicted a second time of blackmail. He said that deterrence is perhaps the most important part of a sentence in a case of blackmail.

Related offences[edit]

Because blackmail can cover any unwarranted demand with a menace, many other offences may also be carried out as part of committing blackmail, or by the same events. For example:

• An offence of robbery under section 8(1) of the Theft Act 1968 may be committed, if a person puts or seeks to put another person in fear of being subjected to force if their demand is not met.

• An offence under section 4 of the Public Order Act 1986 might be committed if a person intended to cause another person to believe that immediate unlawful violence will be used against him (or someone else) or if the person threatened is likely to believe that such violence will be used.^[42]

• An offence under section 2 of the Criminal Damage Act 1971 may be committed if there is a threat to destroy or damage property.

• An offence under section 5 of the Criminal Law Act 1967 may be committed if a person receives consideration (broadly meaning: any gain or benefit) in exchange for agreeing not to report any "relevant" (previously: "arrestable") offence.

• Several kinds of offence under Section 40 of the Administration of Justice Act 1970 may be committed by debt collectors and other creditors, if they make false and coercive statements in order to coerce debtors to pay them money.^[43]

Civil liability[edit]

A blackmailer who threatens to publish a defamatory statement of and concerning an individual may be liable to be sued after the regulations of the Defamation Act 2013^[44]. Offenders of defamation may be taken to court if serious harm is done to the victim. The requirement for serious harm defines:
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

The trial for the offence must be with a jury in the case of charges with cases of^[45]:
(a) fraud
(b) malicious prosecution
(c) false imprisonment

History and legal development[edit]

The terms in this law derive from the Larceny Act 1916 sections 29 - 31, which itself draws on the Libel Act 1843 and the Larceny Act 1861.^[46] For example, s.30 refers to a person who demands "with menaces or by force". An offence also existed in common law: for example in R. v Woodward (1707) it was stated that "Every extortion is an actual trespass, and an action of trespass will lie against a man for frighting another out of his money. If a man will make use of a process of law to terrify another out of his money, it is such a trespass as an indictment will lie." The 1805 case R v. Sodherton stated that a threat needed to be such that a "firm and prudent man" would be overcome by it, and concluded that "The law distinguishes between threats of actual violence against the person, or such other threats as a man of common firmness cannot stand against, and other sorts of threats. Money obtained in the former cases under the influence of such threats may amount to robbery, but not so in cases of threats of other kinds".^[46]

The origin of the modern offence lay in the 1723 Black Act,^[46] which addressed a group of notorious poachers and extortioners.^[47] In 1823 an Act^[which?] was passed that criminalised "demanding money or other valuable thing" (1823) where no reasonableness or menace was required, and in 1927 this was updated in a further Act^[which?] to cover "any letter or writing demanding of any person, with menaces, and without reasonable or probable cause", thus mentioning menaces for the first time in the context of blackmail.^[46] The 1827 offence was in turn replaced in 1837 by an offence concerning any person who “with menaces or by force, demand(s) any property of any person with intent to steal".^[46] In the Larceny Act 1916 the element of "taking" included taking by intimidation based on an earlier case R v. McGrath.^[46]

Before the enactment of section 21 of the Theft Act 1968, the word blackmail was not a legal term of art. The word was used by lawyers as a convenient way of referring to the offences under section 29 to 31 of the Larceny Act 1916,^[7] and those offences were commonly known as blackmail.^[48] But the word blackmail did not appear anywhere in that Act.^[7] In early legal history, the term appears to have referred to the extorted property itself, and included by reference both the perpetrator and the victim - the legal position was that the victim was as equally culpable as the extortioner, insofar as he/she had given in to extortion and thereby made it profitable to extort.^[46]

Hogan described these offences as "an ill-assorted collection of legislative bric a brac which the draftsmen of the 1916 Act put together with scissors and paste."^[49]

They were replaced in 1968 by section 21 of the Theft Act.

Northern Ireland[edit]

Offence of blackmail is created by section 20^[50] of the Theft Act (Northern Ireland) 1969. It is derived from and identical to section 21 of the Theft Act 1968.

United States[edit]

The offense of blackmail is created by 18 U.S.C. § 873 which provides:

"Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both."^[51]

Europe[edit]

Austria[edit]

For the offense of blackmailing in Austria the punishment is imprisonment for a time from six months up to five years according to §144^[52] of the Austrian Criminal Code.

Germany[edit]

In the German Criminal Code, the offense of blackmail (Erpressung) is set to be punishable by a fine or imprisonment up to five years. Specific laws exist for continuous blackmail threats or offenses against constitutional organs or against personal freedom in case of abduction^[53].

France[edit]

The French Code pénal considers the offense of blackmail (chantage) with a fine of up to 75 000 euros or imprisonment for 5 years in Article 312-10. Blackmailing in French law falls under the section of extortion. ^[54]

Objections[edit]

Some people consider that blackmail ought not be considered a crime.^[55][56] They point out that it is legal (in the United States at this moment in time) to gossip about someone else's secret, to threaten to publicly reveal such information, and to ask a person for money, but it is illegal to combine the threat with the request for money. They say this raises the question, "Why do two rights make a wrong?"^[57]

This observation has been rebutted by pointing out that while drinking alcohol and driving are both legal separately, their combinations are not.^[58]

See also[edit]

Notes[edit]

References[edit]

• Baker, Dennis J., Glanville Williams Textbook of Criminal Law. Sweet & Maxwell: London. (2005) ISBN 978-0-414-04613-9.
• Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
• Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell: London. ISBN 978-0-421-19960-6
• Ormerod, David. Smith and Hogan Criminal Law, LexisNexis: London. (2005) ISBN 978-0-406-97730-4
• Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 978-0-406-89545-5

External links[edit]

•  "Blackmail". Encyclopedia Americana. 1920. 
•  Chisholm, Hugh, ed. (1911). "Blackmail". Encyclopædia Britannica (11th ed.). Cambridge University Press.