What is trolling, why do people do it? Should the law be involved?

Trolling is the new title that has been given to harassment that takes place on the Internet. A common example of trolling would be sending provocative messages via a communications platform, which has a harmful effect on the recipient for the pure entertainment of the sender. There are different types of trolling; messages sent to harm others for the sender’s gratification are called ‘flame trolls’, and those to entertain others for their gratification have been given the title ‘kudos trolls’ (Bishop 2012a, 2012b). Where these actions have the resource to legal remedies they are called ‘electronic message faults’ and where the message fails to constitute an offence ‘electronic message freedoms’, and there is quite rightly nothing to prevent those from expressing free speech online. 

Recently there has been widespread controversy on whether the Internet should be left to its own methods of self-regulation or whether an authoritative body should be put in place to protect Internet users. Statistics show that an increase in internet trolling and cyber bullying correlates with the increased interest in social networking and social media such as facebook and twitter. There has been a change in the way legislation has been used as a result of the increase in social media; the Malicious Communications Act 1988 has seen a sudden increase in usage since the invention of Facebook, which is being used to prosecute numerous individuals for eighteen weeks imprisonment when found guilty of the offence trolling (Bishop 2012b). The Police and Criminal Evidence Act 1984 introduced a provision which has made electronic documents that have been interfered with through wrongful use of communications systems admissible as evidence in court. This was later repealed by the Youth Justice and Criminal Evidence Act 1999. The Interception of Communications Act 1985 was passed to allow for the interception of messages sent via an electronic communications network.  The aim of this legislation was to resolve problems in gathering evidence for electronic message faults. It was similar to the more encompassing Regulation of Investigatory Powers Act 2000, which repealed and replaced a lot of it.

Over the years there has been a minimised application of mens rea within internet offences which has resulted in an increase in the number of convictions. Strict liability is frequently used for offences under the Public Order act 1986, where it is sufficient to prove a fault where the respondent posted the electronic message. Atkins v DPP [1989] Crim. L.R. 581 found that under s. 4 of the Public Order Act a person had to receive a message from the sender or someone acting on their behalf, and being retold the message did not fall under the ambit of the act. There have been problems with the Act when applying the relevant law to the offence of flame trolling as it remains ambiguous whether the referral to a person outside a dwelling that must receive the message includes somebody using alternative technology such as a mobile phone. In 1994 the POA was updated and Section 4A was introduced by the Criminal Justice and Public Order Act 1994, which now forbids ‘intentional’ harassment, alarm or distress. The provision was used in 2012 to prosecute a youth who had posted racist remarks on Twitter. After being prosecuted under the provision, the youth, Liam Stacey, served half of his 56-day prison term. 

The Malicious Communications Act 1988 (MCA) prohibited sending letters or articles that were offensive, indecent or threatening with the intention of causing distress or anxiety to the recipient. Great Britain has taken a literal interpretive attitude towards the legislation in contrast to the ‘proportionality’ approach used in other jurisdictions such as Germany. As a result the Act presents certain difficulties when using the law to prosecute offences such as flame trolling, as it was not until the Criminal Justice and Police Act 2001 that the law encompassed a wide spread variety of electronic communications. The MCA was applied in DPP v Connolly [2008] 1 W.L.R. 276, the respondent was found guilty of sending a grossly offensive and indecent message. The particular case is authority for the proposition that a message must be capable of causing harm to the person and cannot simply be offensive. The facts of this case included a picture of an aborted fetus underlined with a political message that was sent to pharmacists. The court ruled that the audience it was sent to would find the material shocking and therefore the act was prosecutable, however if the image had been sent to an abortion surgeon it would have constituted as a political message and thus it did meet the threshold criteria to prosecute. 

It is the responsibility of the owner of the website (sysop’s) to delete content reported as defamatory under the Defamation Act 1996. A sysop’s entitlement in allowing free speech is eradicated where there is an imminent threat of legal action, i.e. harmful material posted online. Bunt v Tilley & Others [2007] 1 W.L.R. 1243 found that the defence is renounced if the sysop is informed that a message is false and they fail to remove the content, where they have ‘‘knowing involvement in the process of publication of the relevant words’. This could potentially put the sysop at risk of being subject to a civil injunction where the burden of proof is upon them. Additionally, they could be criminally charged under Section 127(2)(a)-(b) of the Communications Act 2003 where the burden of proof is on the prosecutor. Godfrey v Demon Internet Ltd [2000] 3 W.L.R. 1020 confirmed this by stating that the internet service provider (ISP), Demon, was informed that defamatory content were being hosted on their servers, and upon failing to remove the defamatory content, they were found liable for not removing the content. The judgment raised the debate of the right of presumption of truth in free speech where a sysop or their ISP is required to remove anything said to be untrue and raises the argument that sysops are public defenders who protect free speech. 

The Communications Act 2003 was a robust piece of legislation applied to flame trolling. S. 127 on ‘Improper use of a public electronic communications network’ and s 128 on ‘Notification of misuse of networks and services’. A person guilty of an offence under s 127 of the CA2003 for improper use of a public communications network is liable, on summary conviction, to imprisonment for a term not exceeding six months. DPP v Collins [2006] 1 WLR 2223 defined what constitutes grossly offensive, namely whether the message would cause gross offence to the audience to whom it relates, who do not need to be of the same type as those who receive it. A message must meet the threshold test for malu reus (i.e. it causes harm to someone) for it to be prosecuted under section 127 of the CA2003. 

The Crime and Disorder Act 1998 introduced Anti-Social Behaviour Orders (ASBOs) which have the same effect as personal injunctions refraining individuals from carrying out certain acts, if they are in breach of an ASBO they risk the imposition of a prison sentence of up to 2 years. ASBOs have been used for persistent trolling. In a case of flame trolling, the Criminal Justice Act 2003 provides for certain issues to be considered, this includes the seriousness of the offence in the case of section 143. The Serious Crime Act 2007 brought numerous flame trolling offences as a result of the UK Riots in August 2011. The most remarkable examples were those of Jamie Counsel and Anthony Gristock, who created Facebook pages in the spur of the moment with the aim of inciting or helping an offence, these were strict liability offences even though neither defendant caused any rioting. They received 4 years and 3.5 years imprisonment, and the sternness of these penalties has been put into question, especially as nobody was hurt and they were not likely to reoffend. A notable contrast is the case of Sean Duffy, a repeat offender flame troller imprisoned for 18 weeks under the MCA where an offence of persistently using electronic communications networks for ‘the purpose of causing annoyance, inconvenience or needless anxiety to another’, is set out under section 127 of the Communications Act 2003. It is debatable whether the recurrent harassment of families who created memorial pages might be deemed to be more severe within the meaning of the CJA in comparison to the offences committed by Jamie Counsel and Anthony Gristock. 

The Protection from Harassment Act 1997 was introduced as the legislation at the time was considered not sufficient for the prevention of cyber stalking, the act overtly criminalized harassment.  S 125(2)(a) of the Serious Organised Crime and Police Act 2005 introduced the provision of section 1 (1A) within the Protection from Harassment 1997 which made it illegal to harass someone by proxy, for example by persuading a person to do or refrain from doing something they are lawfully entitled to, with the intention of causing harm to another. Section 3A was inserted which enabled civil injunctions against persons in breach of s.1A in the civil courts. This provision constitutes a deterrent rather than taking the matter to court. Despite the law acting as a back up where the criminal law fails, the application of the common law in relation to the Protection from Harassment 1997 Act is disorganized and inconsistent. For example, the case of Reece Messer involved a hurtful message posted to Olympic diver Tom Daley, he was given a harassment warning, but when Tom Daley retaliated and called him and his other fellows an ‘idiot’ he was not given a similar caution.

The Sexual Offences Act 2003 provides new provisions concerning online sex offences such as grooming. R v T (2005) EWCA Crim 2681 was a successful prosecution under this act where a 43 year old pedophile was found guilty of grooming an 8 year old girl over the internet and given an 8 year sentence. It is questionable that the failure to bring such cases under the Computer Misuse Act for such acts was careless on part of the Government. For example such behaviour could have fallen under the ambit of ‘unauthorised access with the intention to commit further offences’, which is an offence under the CMA. 

The UK ministry of Justice have proposed a defamation bill with the aim of making it easier to challenge offensive material that has been written about them. It has been suggested that a more efficient procedure would be permitting those that believe there is defamatory content being posted online about them to ask the website operator for the name of the person who posted those remarks. Thereby, permitting the individual to take legal action against trolls directly and requiring them to delete defamatory posts. This approach may provide operators with more protection when they comply with the law and identify authors of allegedly defamatory material. Increasing prison terms of those found guilty of sexual harassment and verbal abuse online or via mobile phones could deter trolls. The Government has been discussing increasing penalties up to two years imprisonment. This call for amendment comes in light of the recent deaths of Tallulah Wilson who died age 15 when she was hit by a train after making an alternative fantasy life on the web. In 2013, Hannah Smith hung herself after being bullied on the website Ask.fm. It is essential that we have in place a clear legal framework to address the problem of cyber bullying and the suicides of vulnerable young people. The assortment of legislation such as the Public Order Act 1986, the Malicious Communications Act 1988 and the Protection from Harassment Act 1997 that is used to prosecute electronic message faults such as Internet trolling does not raise the issue of whether the police have the powers, but how they should implement such powers to protect people from Internet abuse without their actions being interpreted as having a detrimental effect on free speech. 

Whenever there has been an attempt to regulate the internet, the majority users have given a negative reaction. This can be seen from the reactions of internet pressure groups aka the “online community” with respect to SOPA, PIPA and ACTA. It is essential for the prevention of cyber bullying and suicides that occur due to them that the internet should be regulated in such a way so as to avoid these things from happening. The question of whether it is possible to actually control the internet is of more importance. This calls for regulations on an international scale as the internet is used globally and offences that are committed from one country and affect an internet user in another country would create problems with respect to enforcement/protection of the aggrieved person’s legal rights. The fact that, anyone can create a false identity or pose to be someone they’re not, creates a lot of problems with respect to tracing the actual person. There is no law that requires everyone who creates an account on a social forum to furnish proof of identity. There are underage children with facebook, twitter and other social media accounts. How does the state intend to prosecute juveniles for hate speech, cyber bullying or defamatory remarks? The answer is that it can’t. As much as the government would hate to admit, the internet is not owned by a single state. There are different laws that regulate the internet in the UK whereas the laws that regulate the internet in Russia are totally different. The only way the internet can be regulated would be through a worldwide consensus upon those laws, no one state can be allowed to regulate the entire internet, Governments can install control mechanisms in their own countries to some extent and even restrict access to websites from other countries but loopholes such as proxy servers will always exist to counter these control mechanisms. 

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