Blackmail – how serious is the menace?

Blackmail is becoming more prevalent. Responding to it is a delicate task, with a number of potential pitfalls.

The word blackmail has a tabloid resonance. The type of blackmail most people would think of is a demand for cash coupled with a threat to disclose damaging or embarrassing information, which may or may not be true. Most such cases tend to be opportunistic.

Corporate blackmail tends to be more organised, with professional hallmarks.       

Now that most individuals and entities have a cyber presence they have digital assets and vulnerabilities. In addition they can be targeted remotely, exposing them to a wider range of threats.

The three main strands of cyber blackmail are:

1. Personal extortion – usually relating to webcam footage or other online activity. This is often amateurish and sometimes uses standard scripts from internet sites.
2. Data breach extortion – the semi-pro level of cyber blackmail, sometimes with fake demands relating to data that is already out there.
3. Professional cyber extortion, focusing on denial of service targeted at maximum impact.

Now that everyone who has access to the internet can target anyone else in the world the risk of exposure to blackmail demands has increased. So too has the need for sound advice.

Advice can also be important when commercial disputes become antagonistic.  The elements of blackmail – making an unlawful demand with menaces, with a view to gain or with intent to cause loss - can apply to clumsily worded settlement negotiations. A threat to do something the maker of the demand is entitled to do – such as resort to court proceedings – can qualify as menaces, indeed most traditional blackmail involves a threat to do something the blackmailer is entitled to do. A demand can be unwarranted even though the person making it believes that it is a proper claim. So care is needed to make sure that both the demand and the way that it is reinforced are legitimate. This means more than typing "without prejudice" at the top of a letter: that doesn’t make any difference if the wording of the letter amounts to a criminal offence.

The best response to these issues is:

• Get advice if negotiations start looking like demands
• Get help avoiding falling into the same trap as the other side. It's not a good idea to say: "your letter amounts to blackmail and unless you now settle our entire counter claim we will report you to the police"
•  Get the benefit of a professional assessment of the menace and its seriousness, especially in identifying fake cyber threats – it's bad enough being blackmailed but worse still to be worrying about fake threats
• Get help managing the response: for example, if there is no choice but to make a payment ensure it can be made safely and lawfully
• From the start think about the investigation process and holding people to account: involve the right people
• Have a team which can also assist on reputation issues
• Get help with any reports to the police, particularly in non-traditional examples which the police may not immediately recognise as criminal.
• Make sure the police understand the sensitivities and consider powers which the courts can use to protect victims from publicity.
• Get help with your rights if the police don’t respond in the way you would expect them to

If the authorities can't be persuaded to take the matter seriously consider a private prosecution, where the victim's rights and interests will be considered from the start.