Social Media Responsibility and Liability - a UK Perspective
Research project presented in partial fulfilment of the requirements for the degree of Master of Laws at Tilburg University.
Supervisor: Dr. T. Timan Student: John Patrick Waterson Second reader: M. Galic ANR: 906940
August 2016
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Index
1 Introduction 4 1 1 What is the Problem? 4 1 1 1 Case Study 1 5 1 1 2 Case Study 2 5 1 1 3 Case Study 3 5 1 2 Why is this Relevant? 6 1 3 Research Question 7 1 4 Why is this a Legal and Societal Problem 8 2 Definitions 9 2 1 Trolling 9 2 1 1 Section 127 of the Communications Act 10 2 1 2 Section 4A Public Order Act 11 2 1 3 Section 1(a), (b) Protection from Harassment Act 11 2 1 4 Chambers v Director of Public Prosecutions 12 2 1 5 Discussion 15 2 2 Defamation: Libel 16 2 2 1 Test for Defamation 17 2 2 2 Cairns v Modi 19 2 2 3 Lord McAlpine v Sally Bercow 20 2 3 Discussion 21 3 Conflicting Rights 22 3 1 Freedom of Speech 22 3 2 Trolling and Freedom of Speech 24 3 3 The Goal of Punishing Defamation and Trolling and Effectiveness 25 3 3 1 Defamation 25 3 3 2 Trolling 27
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3 4 Non-legal repercussions 28 4 Discussion of Possible Solutions and Problems 30 4 1 Jurisdiction 30 4 2 Intervention by the Social Media Networks 31 4 3 Real Name Use 33 4 4 Education 34 4 5 Self-regulation 35 4 6 Summary 36 5 Conclusion 37 Bibliography 39
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1 Introduction 1 1 What is the problem? Social media is currently one of the most used forms of expression and communication. Users post and comment opinions and statements from behind a computer screen and this often creates a feeling of distancing from their actions. The paper will deal with two forms of conduct that can lead to liability for a social media user. The acts are called trolling and defamation of character. Trolling is the act of insulting or harassing other users on social media and defamation is the act where a person makes a statement which harms the reputation of another person. The two terms will be explained and defined in part two of the paper Social media creates the problem that users often feel distanced from their actions when placing content online. The content, though mostly harmless, can and have had serious repercussions for the users who shared the content online. Some users may feel distanced from the individuals they target on social media, through trolling, and they make statements that they might know is wrong but feel that they can make this statement because of the distancing the internet creates. In the case of defamation it is the fact that users often do not realise that what they say could be interpreted as defamatory or that they do not think of the repercussions until it is too late. This could become a problem for society at large since users of social media might break the law or create legal repercussions for themselves without understanding that what they are doing is against the law. The users are often also under the impression that for whatever reason the law cannot touch them because they cannot be held liable for what they write on the internet. The evidence from the courts though shows that users may potentially be held liable for the content that they place on the internet. The intention of this thesis is to examine real life case studies regarding social media conduct that have had real life legal and other implications for the persons involved. The paper will use three case studies to approach the questions regarding whether statements made on social media can lead to civil or criminal prosecution. The paper will also look at whether the current legal system is effective and what could be done to educate or protect the general public from such potential liability. The three case studies that will be discussed will be given a short introduction after which the research question and methodology will be made clear. The reason why the mentioned cases will be examined, is because they are illustrations of trolling and defamation on social media networks.
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1 1 1 Case study 1
The first case study deals with the case of Mr Paul Chambers. Mr Chambers used Twitter to make a satirical post regarding Robin Hood Airport, in which he mock threatened to bomb the airport if it was not open at the time of his flight the following week. The airport had been closed because of snow and weather problems. Mr Chambers was arrested and fined in terms section 127 of the Communications Act 2003. The act makes it a criminal offence to send offensive, indecent, obscene or menacing messages over public electronic communications networks. The case was appealed by Mr Chambers and, on the 27th of July 2012, he was found not guilty of the offense since the message was not intended to be threatening.1
1 1 2 Case Study 2 The second case deals with the incident of Brenda Leyland, a 63 year old woman, who sent Twitter messages to the Twitter account of the McCann family. The McCann family are well known in the UK because of the high profile case where their daughter had disappeared eight years ago. A reporter for Sky News had received information about the woman, from a source in Scotland Yard, because she had been investigated along with a number of other individuals who had sent threatening or rude “tweets” to the McCann’s. The reporter from Sky News went to Ms Leyland’s house and approached her on the street. The reporter made it clear that the authorities were aware of her and questioned why she was sending the offensive “tweets” to the McCann family. Three days after the confrontation Ms Leyland was found dead, she had committed suicide.2
1 1 3 Case Study 3 The third case deals with Lord McAlpine, a British politician, who was “named” on Twitter by many people as being the unnamed politician who was under investigation for a child sex abuse scandal in the UK. McAlpine decided to institute lilbel action (the written word version of Defamation) against Twitter users who stated that he is, or might be, the politician involved in the child sex abuse investigation. Lord McAlpine sued a number of individuals on Twitter including Sally Bercow, the wife of another UK politician. The British High Court ruled that the “tweets”, referring to Lord McAlpine as being the suspect in the
1 Paul Chambers v Director of Public Prosecutions [2012] EWHC 2157 2 Jennifer Smith “Sky TV reporter ‘devastated’ by suicide of McCann Twitter troll days after he exposed her, inquest hears” (20-03-02015) Dailymail
5 investigation were defamatory, a libel, and thus found that Mrs Bercow had defamed Lord McAlpine.3
1 2 Why is this relevant? These three cases illustrate how the use of social media can create un-intended consequences for the users of social media. This paper will look at how the UK has dealt with cases where social media caused real life legal or other consequences for its users. The reason why the UK will be examined is because the UK has already had legislation in place that could be used against those who abuse social media and there has been a number of cases that have gone through the courts. There have been enough court cases to illustrate how the situation is to be dealt with and enough high profile cases that have been reported on. The use of social media since it has become the new norm with, for instance, platforms such as Facebook alone having more than 1 billion users4. Twitter has even been used by a United States Presidential candidate to announce their candidacy on Twitter.5 It is clearly a very topical issue that should to be examined. Social media has led to the creation of many new social and legal avenues that could become problematic. From the new form of vigilantism on Facebook or Twitter, to making jokes that can get one arrested. The reason one has to consider the consequences of the inappropriate use of social media is the fact that for the foreseeable future, social media is here to stay. It is used by millions around the world and as such can and has had a considerable impact on the daily lives of the general public. This means that one cannot avoid looking at some of the possible negative consequences that can come from the use of social media. Because it is used by an ever growing part of the world’s population, there will and have been situations where people have acted in a way that is socially and sometimes legally unacceptable. The general public need to be aware of these potential consequences. Thus one must find a way to educate the public to understand what is acceptable, and what is not, on social media and to understand that there can be consequences to their actions on the internet. One of the primary problems with social media is the fact that many users do not see it as a public forum and that users do not realise how easily something can go viral. Users feel that they can do and say things that they would not do in the real world because of the distancing effect of the internet. This distancing effect has been called “the online
3 The Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB) 4 Anonymous “Stats” (24-06-2016) Facebook Company Information
6 disinhibition effect”6 and this has been used to explain why users conduct themselves on the internet in a way that they would not normally do in real life. Furthermore users forget that social media platforms often have a very public character and case law supports the contention that social media networks are public communication networks.7 Even if the communication sent over social media was sent in private, it can easily be made public by either of the parties involved in the communication. There are many cases where users receiving abuse through private messages on social media have resorted to making these messages public.8 Many of the users of social media feel that they can say and do things which they would not do in normal life without realising that their messages are either public or can very easily be made public, which will in effect lead to similar results.
1 3 Research question The research questions that will be deal with can be divided into four parts. Each question will be dealt with along with some peripheral issues. (1) Can the users of social media be criminally and civilly prosecuted for their actions on the social media platform?
This paper will examine UK case law and the legal consequences that have arisen from the misuse or abuse of social media. The laws that have been used to prosecute individuals and how it was applied in practice will be discussed with reference to UK case law. There are legal provisions that are already being applied to situations where social media use has crossed a line but it is often difficult to understand when and how the law will be applied. (2) When will a defamatory statement be prosecuted, or when will an offensive message cross the line and become criminal? (3) Are the laws that currently deal with rolling and defamation sufficient and capable of tackling the problem?
The question is then whether the existing laws are being used appropriately, and, what steps can be taken to assist users to not cross the line and to protect users from abuse or defamation. (4) What possible steps can be taken to protect or educate users of social media about the potential risks involved?
6 J Suler, “The Online Disinhibition Effect” CyberPsychology & Behaviour (2004 Vol 7/3) available at
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The paper will also look at what possible steps could be taken by the social media networks to assist their users to not abuse their systems. However, any situation where the networks step in, should be guarded against, for if the networks overstep then the argument can be raised that the social media networks are restricting freedom of speech.9 The question over whether the social networks should self-regulate or not becomes very important not only because of what they do but also the legal and societal implications of potentially censoring users of social media. Furthermore this paper will assess potential ways to educate users to warn them of the possibility that they could be held liable for their actions online.
1 4 Methodology This paper will focus on trolling and defamation because these are both very topical and relevant at the moment, with the news media regularly touching on them. Certain other actions that can occur on social media, such as hate speech or cyber- bullying, despite the fact they fall under the definition of trolling, will not be dealt with, for a number of reasons. The primary reason being that neither have been extensively dealt with in case law and as such is still a very wide and open field. Furthermore this paper will focus on specific forms of speech on the internet and hate speech and cyberbullying are both very large fields on their own. There is also the additional problem that the conflict between hate speech or cyberbullying and freedom of speech has not been dealt with in case law very often. This paper looks at specific forms of conduct that has been dealt with in case law and as such this paper will only focus on trolling and online defamation. In part two of the paper the approach will be to examine how the courts are dealing with the abuse and consequences of abuse on social media. Because the UK is a common law jurisdiction one must look at the case law to see how the laws are being applied and developed. The precedent system used in the UK means that if a high court gives judgment in a specific direction then the lower courts will have to follow the approach of the high court. This is very important when dealing with new developments in society or technology because often the legislature will not be able to update or draft new laws fast enough. As such the judgments given by the courts are what will be followed until the legislature creates new laws, if needed. Part three of the paper will consider the conflicting rights that are at play when dealing with trolling and defamation. The two primary rights that are involved is the personality rights of the victims, the right to not have your character attacked and the right not to be harassed, and the right to freedom of speech of all the users on social media.
9 M Isaac, “Twitter Bars Milo Yiannopoulos in Wake of Leslie Jones’s Reports of Abuse” The New York Times (20-07-2016)
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Part four of the paper will explore some potential solutions on how to educate and protect users from falling foul of the law.
2 Definitions
The definitions of trolling and defamation will be considered in this part of the paper so as to illustrate how the terms are seen by the law and the courts. The term trolling is very new and has no legal definition in the UK and as such there are multiple acts that could be applicable and used to prosecute trolling. The term can include conduct that is grossly offensive or harassment. The most important acts that relate to trolling will be discussed along with examples from case law. Defamation does not have a legislative definition and the definition has been developed through case law. There are two acts that deal with defamation in the UK but both of the acts serve to create statutory defences that limit liability or to limit the claims that can be instituted. Defamation will be approached in a similar fashion as trolling in that the term will be discussed and the delved into through studying the case law.
2 1 Trolling:
“Trolling in general is the posting of messages via a communications network that are intended to be provocative, offensive or menacing.”10 As described above Trolling has been defined as the act where a person or persons post content online that is there to provoke others, often by offending them, but it can also take a step further and become menacing or threatening. The terms referring to Trolling have developed with different sub groups such as ‘flame trolling’ and ‘kudos trolling’ where the first refers to the more offensive kind of trolling and the later to a more positive form of trolling.11 This paper will not try to differentiate between the different forms of trolling and will for convenience sake refer to the action merely as trolling. For clarity the acts of trolling that will be referred to are the more offensive and menacing kind. The acts referred to as ‘flame trolling’ or ‘haters’.12 Freedom of speech will in most cases protect users who are just offensive or attention seeking through their conduct. The more specific actions that are relevant in this paper is where the tweets become threatening or
10 J Bishop “The effect of de-individuation of the Internet Troller n Criminal Procedure Implementation: An interview with a Hater” IJCC ISSN 0974 – 2891 Jan-Jun 2013 Vol 7 (1) 28-48 28 11 ibid 12 Ibid p28-29
9 menacing to a point where action is taken against the person or persons posting the content. The following sections will deal with the most important legislation that regulates actions that could fall under the term trolling. Some of the terms relate to harassment, offensive messages or threats. There are a number of acts that can be applicable in the context of trolling and only the most commonly used will be dealt with. The most important acts are section 127 of the Communications Act, section 4A of the Public Order Act 1986 and sections 1(a), (b) of the Protection from Harassment Act. The other statutes that have been used include section 16 of the Offences Against the Person Act 1861, which is used for death threats that are sent over a distance, but this act is not often used. Section 1 of the Malicious Communications Act 1988 can be used when electronic messages are sent that are indecent, grossly offensive or threatening.13 The following sections will show that there can often be an overlap where more than one act can be used to prosecute a certain type of conduct. The prosecution service will often decide to specifically use one section above another for a number of reasons, which could include the fact that the act has been used before and as such there will be a measure of legal certainty.
2 1 1 Section 127 of the Communications Act In the UK the most commonly used statutory provision to deal with threats made over the Internet is section 127 of the Communications Act 2003.
“127 Improper use of public electronic communications network (1) A person is guilty of an offence if he — (a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent. (2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he (a) sends by means of a public electronic communications network, a message that he knows to be false, (b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network. (3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
13 AR Lodder, AD Murray, “A Primer on the law of internet communication and content: from the UK and Dutch Perspective” (09-06-2015) Dialogos de Saberes, Investigaciones en Derecho y Ciencias Sociales , no 41, Julio-Diciembre de 2014, p 173-188. Available at http://ssrn.com/abstract=2616497 (accessed 24- 06-2016)
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(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).”
The requirement for section 127 to be applicable is to send a message over a public electronic network which is grossly offensive, indecent, obscene or menacing or to cause such a message to be sent. Trolling on social media such as Twitter and Facebook will then fall under the requirements of this section. 2 1 2 Section 4A Public Order Act The Public Order Act of 1986 was applied in a widely publicised court case and reads as follows: 4A.— Intentional harassment, alarm or distress. (1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress. (2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling. (3) It is a defence for the accused to prove— (a) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or (b) that his conduct was reasonable. [...] 2 (5) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.
The Act was used in the case of R v Liam Stacey14, where Mr Stacey was found guilty of using threatening, abusive or insulting language with the intent to cause harassment, alarm or distress. 2 1 3 Section 1(a), (b) Protection from Harassment Act Trolling can amount to harassment and as such the Protection from Harassment Act 1997 can be relevant. The act was conceived to protect individuals from harassment
14 (2012) WL 11908434
11 and can be invoked when the harassment occurs over social media. The Protection from Harassment Act specifically outlaws any conduct:15
(a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.16
The Act also specifically mentions situations where one puts the fear of violence in another, or stalking, involving the fear of violence or serious alarm or distress.17 Should one be in breach of the act the punishment could be up to six months in prison or a fine. Furthermore the act also allows for a civil claim to be instituted by the victim, of the offence, against the person who had harassed them. The claim can include damages for financial loss and damages cause by, among other things, anxiety which was caused by the conduct of the defendant. Case law has defined that for a case to involve harassment there has to have been at least two separate incidents relating to the harassment.18 It was found that there needs to be a connection between the separate and multiple incidents. The actions need to all relate to the act of harassment or putting fear into someone. In a case dealing with domestic violence the courts found that there was no nexus between six separate violent outbursts by the defendant against his partner and that it was not all related to one single course of conduct. 19 Thus for the trolling to be found to be harassment there has to be found that there are separate events that are linked by a common cause or conduct and cannot be a number of distinctly separate events.
2 1 4 Chambers v Director of Public Prosecutions The current most relevant case dealing with Trolling in the UK is the case of Chambers v Director of Public Prosecutions. 20 The case dealt with the question of whether the authorities acted correctly when charging and convicting Mr Chambers with the offence of sending a message of a ‘menacing character’ over a public communications network. Mr Chambers was convicted of breaching section 127(1)(a) of the Communications Act in a Magistrates court and the conviction was upheld in the Crown Court. The case was finally dealt with in the Queen’s Bench Division where the appeal was upheld and the conviction was reversed. The question was whether a tweet by Mr Chambers in which he jokingly threatened to blow up an airport should have been prosecuted or not. The Queen’s Bench Division approached the case by firstly examining
15 Section 1 and section 2 of the Protection from Harassment Act read together. 16 Section 1(a), 1 (b) of the Protection of Harassment Act 17 Section 4 and section 4A 18 R v Patel [2004] EWCA Crim 3284 para 40 19 Regina v Curtis [2010] EWCA Crim 123 20 Chambers v DPP [2012] EWHC 2157
12 the question of whether Twitter is a “public electronic communications network” as required in the act. The Court quoted from the Crown Court Judgement in the first appeal:
“The ‘Twitter’ website although privately owned cannot, as we understand it, operate save through the Internet, which is plainly a public electronic network provided for the public and paid for by the public through the various service providers we are all familiar with … The Internet is widely available to the public and funded by the public and without it facilities such as ‘Twitter’ would not exist. The fact that it is a private company in our view is irrelevant; the mechanism by which it was sent was a public electronic network and within the statutory definition … ‘Twitter’, as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.”21 The court agreed with the statement and found that it is irrelevant if one were to read a tweet as a message, as in when a follower were to receive it, or to read the tweet at a later stage. The court finds that the message was sent at the time when it was ‘tweeted’ and as such it qualifies as a message that was sent over a ‘public communications network’.22 The implication of this is that the messages do not have to be received like a phone call, instantly, but can be found at a later stage and read and the message would still count as having been “sent” over a ‘public communications network’. There is also the fact that if the message was sent as a ‘tweet’ without sending it to a specific person then anyone who finds and reads the message could in theory then be offended by the message. This means that not only direct messages but also something such as a Facebook status update could qualify under section 127. The second step the court had to look at was the question of whether the messages were menacing in nature. The court mentioned that this would be the first time that a court would have to evaluate the question with regards to the Communications Act. It was found that the primary requirement for the offense to exist is that the messages sent would have to be ‘menacing’ in nature otherwise there would be no offence. The court quoted that for a message to be ‘menacing’ it has to:
““fairly plainly, is a message which conveys a threat—in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen.”23 The effect is that if the message were to be perceived as a threat then it would be found to be menacing, so there needs to be an apprehension or fear. The court also takes into account that for there to be a decision on whether a message was menacing or not one would have to examine the circumstances surrounding the sending of the message.24 The court followed up by examining the circumstances surrounding the sending of the message and found that none of the over 600 followers of Mr Chambers on Twitter had found the message to convey a direct threat to the airport. Further the court found that when looking at the response of the airport authorities who found the ‘tweet’, they clearly
21 Ipid 1840 para 23 Crown Court Judge Davies 22 Ipid para 21 - 25 23 Director of Public Prosecutions v Collins [2005] EWHC 1308 para 10 24 Chambers v DPP para 29-31
13 did not find it to be a credible-threat and it was only reported because that is the standard procedures that had to be followed. It was clear that no-one truly thought of the message as being a threat and while it could have been considered a threat that alone could not be the basis of finding the message to have been menacing in nature.25 The court found that the conviction should be annulled and stated that it would not investigate any of the other questions raised by the prosecution.26 The court did make a short discussion where it agreed in principle with the Director of Public Prosecutions v Collins27 case where it discussed the question of mens rea or the required state of mind of the perpetrator. The court, in Chambers, discussed the question of mens rea only briefly because it is not a requirement to have the criminal intent to send a menacing message in terms of Section 127(1)(a). The intent required is only that of basic intent to act. But the court still held that the person sending the message should have intended for the message to have been of a menacing nature or should have been at the very least aware that the message could cause apprehension or fear. The court states that the requirement of the intent is purely about the mental state of the sender of the message and as such even if the message was sent as a bad joke, but only meant to be a joke, then it would struggle to meet the requirement of basic intent.28 The Chambers case confirms that sending a tweet over Twitter will constitute sending a message over a public electronic communications network. One can make the assumption that all other social media networks such as Facebook would also qualify as a public electronic communications network. The case also confirms that one would have to look at the circumstances surrounding the sending of the message to find whether the message is grossly offensive, indecent, obscene or menacing character. The Court did not deal with the questions surrounding the conflict of freedom of speech versus the prohibitions in art 127 of the Communications Act. That will be discussed in a later part of this paper. A further question that the court did not deal with is what if some members of the public found a message menacing and others did not? This was dealt with in the Collins case, but in this instance the question was whether messages were grossly offensive and it dealt with verbal messages made over telephone. In the Collins case the accused had phoned his member of parliament and had made offensive remarks about a certain minority and the remarks were found to have been grossly offensive.29 It was found that the way that the accused had spoken and the words he had used made it clear that the words were grossly offensive. Furthermore there was no way to “soften or mitigate”30 the effect of the language used. It was mentioned that art 127(1)(a) does not require that one actually insult a person, it only focusses on the sending of the message, through a public
25 Ipid para 32-33 26 Ipid para 19, 34 27 Director of Public Prosecutions v Collins [2006] UKHL 40 Session 2005-06 28 Ibid Chambers Para 35-38 29 Director of Public Prosecutions v Collins [2006] UKHL 40 Session 2005-06 para 13 30 Ibid para 13
14 communications system.31 The result is that one would be guilty of breaching art 127(1)(a) if you were to send a message that is objectively found to have been grossly offensive. There is no further step in the process. The court specifically dealt with the question of whether this would infringe section 10 of the European Convention on Human Rights and found that that while it does infringe on a person’s right to freedom of speech, it does so with a legitimate objective. The law was created to combat the use of public communications networks to infringe the rights of others. The court states that the act does not go any further and as such does what is required in a democratic society.32 The R v Stacey case is a further example of how posting messages on twitter can lead to serious repercussions. Mr Stacey was sentenced to 56 days in jail for posting racist and offensive tweets during and after a football match. The accused had immediately plead guilty to what he had done and the case and the appeal primarily dealt with the severity of the punishment. The appeal court found that the sentence was not too harsh and Mr Stacey had to serve a prison sentence of 56 days.33 The case showed that by posting drunken content on the internet could cause a person to receive a prison sentence.34 The case was severely criticised but it still stands as a potential warning.35
2 1 5 Discussion Based on the discussed case one can conclude that according to UK case law any ‘post’ on a social media network could fall under the provisions of section 127 of the Communications Act. The result is that since a message or ‘post’ on social media falls under the ambit of section 127 the final requirement is for the message to breach one of the four types of messages which are not allowed by section 127. The four forms of messages that are prohibited by section 127 are messages that are grossly offensive, or of an indecent, obscene or menacing character. The question which remains open is how would a person using such a network be able to understand whether their message could be taken as grossly offensive or menacing in character seeing as it is technically available to the entire world, or the public which have access to the internet? This should also be kept in mind in the context of social media messages going “viral”36 where the content is quickly and widely shared by large groups of internet users. The risk is that a person could be held liable for a message that was posted to a certain audience, the followers of said person, and then that post is seen by people outside of that group. The reason it could be seen by others is the fact that the post is still public. What would happen if the public
31 Ibid para 26 32 Ibid para 14 33 Stacey Para 14 34 Ibid para 6 - 9 35 V Coren, “What did the troll actually say?” The Guardian (08-04-2012)
15 in a certain setting or environment do not find the message menacing or grossly offensive but those of another group or demographic does? Where should the line be drawn or should there be no line? In the Collins case the court stated that:
“This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender.”37
In this chapter the discussion focussed on trolling, making offensive statements or sending offensive messages, over social media networks. The cases that were discussed represent the leading case law in the UK with regards to how the courts and the law deal with offensive behaviour over social media. The discussion focussed primarily on section 127 because it appears that section 127 will be the key legislation that will be replied on when dealing with future cases. The Chambers case is further very important because it was a judgment from the High Court, which it the highest court except for the appeal courts. The cases that were discussed are important because they confirmed the application of section 127 to messages sent over the internet. Further the court, in Chambers, confirmed that care needs to be taken when dealing with such messages and the reactions to the messages. In the following chapter this paper will look at defamation on the internet. The reason why defamation and trolling are looked at is because the two are closely related. Trolling can be seen as insulting and threatening a person, while with defamation one harms the integrity and identity of the person. The two different acts both involve posting messages on the internet and could potentially overlap. The primary difference can be seen with how the acts are punished. With trolling it can become a criminal matter while with defamation it will always remain a civil law matter.
2 2 Defamation: Libel In the UK there are two forms of defamation, libel and slander. Slander occurs when the defamatory words are spoken or done in a temporary way and libel occurs when the words are published or are in some permanent form. Libel is the form of defamation that applies to the publishing of work on the internet and will be discussed in this paper. The requirements for defamation and libel have been formed over the years through case law and there is not legislative definition of defamation. The elements for libel to be proven is that the statements have to be (a) defamatory, (b) refer to the complainant and (c) have been published to a third party.38 There are also two presumptions that are used when
37 Ibid para 11 38 A Bainton & D Crossley “Defamation: Libel” Westlaw UK 02-10-2015 para 1-7
16 dealing with libel. The first one was that there was a presumption that the publication had caused damage. This presumption has been watered down by the new Defamation Act 2013 which requires that a person must show that the statement caused serious harm.39 The second presumption is that the statement is false and it is not required for the claimant to show that the words are false. Rather that person who authored the message has to prove that it is true for them to be held liable for libel.40 2 2 1 Test for Defamation The first requirement for a statement to be found to be libellous is for there to have been some form of defamation. There is no comprehensive list of what is defamatory and the courts deal with the question of whether a statement is defamatory on a case by case basis.41 The basic concept is that the statement should have the effect of lowering the estimation in which the person is held by the right thinking members of the general public.42 The standard that is applied is objective and does not relate to any specific group of people.43 A good example of what is meant by objectively looking at the statement can be seen from another case discussed in this paper. In the Collins44 case which dealt with a man making phone calls and using racially abusive language in the calls. The fact that none of the people on the receiving end of the calls were from the minority being racially insulted did not mean that Mr Collins did not have the intention to grossly offend.45 The result was that Mr Collins was still found guilty of breaching section 127 even though subjectively the people he was speaking to were not of the minority that he was insulting.46 Mr Collins’ actions were objectively offending and had the test been subjective it would have had a different result. The second requirement is that there has to be some form of harm. There has been some new developments in UK law to stop so called “libel tourism” and the new Defamation Act 2013 requires that there has to be a form of serious harm. The claimant will have to prove that the statement caused serious harm, in the UK, to be able to take action against an infringer.47 The reason “libel tourism” started was because the laws in the UK made it easier for a person to win a defamation case in the UK than in some other jurisdictions. That means two non-UK nationals would be involved in a libel suit in the UK. This was found to be unacceptable and as such the Defamation Act of 2013 was drafted to reduce the chances of “libel tourism” cases being heard in the UK.48 Examples of cases
39 Defamation Act 2013 1(1) 40 A Bainton & D Crossley “Defamation: Libel” Westlaw UK 02-10-2015 para 8-11 41 Ibid para 12-13 42 Skuse v Granada Television Limited [1996] E.M.L.R 278 Page 286 Para 5 43 Defamation: Libel para 14 44 Director of Public Prosecutions v Collins [2006] UKHL 40 Session 2006-06 45 Ibid Para 12 46 Ibid para 26-27 47 Defamation: Libel para 17-18 48 Report of the Libel Working Group, Ministry of Justice (23-03-2010) available at
17 like these include a Saudi business man who sued an American author in the UK even though only 23 copies of the book was sold in the UK.49 But since the new Defamation act is relatively new there will be some older cases, which are still applicable, that would not have passed the new higher threshold. The higher threshold being the requirement that the person had suffered serious harm to their reputation in the UK. The meaning of the statement will have to be examined by the court to find what the meaning of the statement was. There is a single meaning rule in the UK, meaning that a single meaning of how the notional public would understand the statement needs to be determined.50 (possible discussion on the Chase levels 1,2 &351) When determining the natural meaning of the words the following quote from the Gillick v BBC52 case is applicable: "(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once. (2) The hypothetical reasonable reader or viewer was not naive but he was not unduly suspicious. He could read between the lines. He could read in an implication more readily than an lawyer and might indulge in a certain amount of loose thinking. But he must be treated as being a man who was not avid for scandal and someone who did not, and should not, select one bad meaning where other non-defamatory meanings were available. (3) While limiting its attention to what the defendant had actually said or written the court should be cautious of an over-elaborate analysis of the material in issue. (4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court were entitled, if not bound, to have regard to the impression made. The court should not be too literal in its approach. (6) The court should not be too literal in its approach"53
There can also be situations where the words are vague and can imply or use innuendo. In that case the court will have to interpret the words on the basis that there are groups of people who have the knowledge or insight to understand the innuendo. The Lord McAlpine case is a good example of such a situation, the case will be discussed in detail below. The courts will also look at whether the person used links or pictures and it does not just require one to use words to defame a person. Finally there is the fact that the statement should be made in reference to the claimant. It should be clear to the court
49 G Rayner, “How libel tourism became an ‘embarrassment’ to Britain’s reputation, The Telegraph (23- 02-2010)
18 that the reference is to the specific person and does not require a specific formality but rather that the public would have understood for the statement to refer to the specific person or groups of persons. The case of R v Stacey which was discussed earlier in this paper is an example of where a person made racial slurs about a group of people and that was found to have been grossly offensive. The assumption can be made that one can also defame a group of people but it would be more difficult for the injured party to try and claim on behalf of a group. That is why in most cases when dealing with defamation there is a specific person or entity which has been insulted and who will then claim for damages. This can be done by referring to the person by name or by some other form of identification like office or title.
2 2 2 Cairns v Modi When dealing with publications on the internet the first point would be to confirm that the content which is published could qualify as a libel. The case of Godfrey v Demon Internet Limited54 is a good example of where the Queens Bench Division of the British High Court found that placing a message on a Usenet group would qualify as libel. The court found in this instance that the owners of the Usenet group where the message was published could be held liable for the libel even though they did not themselves post the message. Furthermore as an aggravation for publishing a libellous message is the fact that content can go viral. This was discussed in the case of Cairns v Modi55 where the amount of damages awarded to the claimant was appealed. In the Cairns case the famous cricketer Chris Cairns claimed damages for defamation after the Chairman and Commissioner of the Indian Premier League tweeted that Mr Cairns was guilty of match fixing.56 The defendant claimed that the amount of damages should be reduced because the defendant only had a small amount of followers on Twitter who could have read the defamatory tweet. The court did not agree and specifically pointed out to the fact that when dealing with social media and the internet a message can quickly go viral. The court agreed that one should take the “percolation phenomenon” into consideration when dealing with claims for defamation on the internet and social media.57 This confirms that publishing a defamatory statement on the internet will qualify as a libel and the courts even take into consideration the fact that with the internet such a statement can go viral and potentially cause more damage than ever thought of before.58 The results of the previous case law show that a message published on the internet can qualify as libel and one can now look at the most high profile case that has come
54 Godfrey v Demon Internet Limited [1999] E.M.L.R. 542 (Strike out) 55 [2012] EWCA Civ 1382 Court of Appeal 56 Ibid para 4-7 57 Ibid para 26 -27 58 R Robertson, T Double, “10 years of Facebook: where is the “Twibel” equivalent and why Zuckerberg’s creation is different (if, indeed it is)?” (07-03-2014) Lexology
19 before the courts. This case will illustrate the risk one takes in making statements on social media which can lead to real life legal implications.
2 2 3 Lord McAlpine v Sally Bercow The Lord McAlpine of West Green v Sally Bercow59 case is a perfect example of how a tweet can create legal repercussions for a person. The McAlpine case is a very important case to keep in mind when dealing with the possible repercussions of publishing a defamatory message on social media. The reason is that the tweet was on its own not actually defamatory. The tweet read as follows:
“Why is Lord McAlpine trending? *Innocent face*”60 The reason the tweet was found to be defamatory was the fact that it was published 2 days after a BBC program, Newsnight, was aired in the UK that alleged that a certain well known British politician had been involved in child abuse.61 The BBC did not name the person who they claimed was the abuser, but on social media people were stating that the person was in fact Lord McAlpine. It has been accepted that Lord McAlpine was not the abuser and that he had been falsely accused on social media as the abuser.62 The question the court had to decide was the meaning of the tweet and then whether it was in fact defamatory. The court found that the tweet was referring to Lord McAlpine and that since it was asking why he was trending it was a referral to the fact that the Lord was trending because of the false allegations of child abuse. Sally Bercow was held to have made a defamatory statement.63 The court took into account the fact that Lord McAlpine was only trending on Twitter because of the allegations against him. The reason was because he had retired and would not have been known to many of the younger generation in the UK. The argument was that the only reason his name would be trending was because of the fact that he was named as the potential abuser on social media. 64 The court also took into account the fact that most of the Twitter followers of Sally Bercow would have most likely been aware of the serious allegations against Lord McApline since the story received a lot of media attention in the UK.65 In this case, the court took into consideration a large amount of external factors that read together with the tweet made the tweet defamatory. The court also noted that Sally Bercow had over 56 000 followers on Twitter and while not all would have been aware of the reason why Lord McAlpine would have been trending, but enough would have known.66 The court finally states that because of the repetition rule the writer of the
59 [2013] EWHC 1342 (QB) 60 Ibid para 3 61 Ibid para 15 62 Ibid para 16 63 Ibid para 90 64 Ibid para 85 65 Para 20-30 66 Ibid para 82
20 tweet is treated as if they made the allegation of the child abuse and, in addition, in the tweet a name was added which had been omitted in the news media.67 The repetition rule as stated in the Flood v Times Newspapers Limited68 case means that if a person repeats a libellous statement or allegation, which had been made by another, then the person is treated as if they had made the allegation themselves.69 This means that the tweet which had been sent by Ms Bercow, was dealt with as if she made the allegation of child abuse against Lord McApline herself. In the Lord McAlpine case it was made worse by the fact that the original publication did not name Lord McAlpine but he was insinuated to be the person through the ‘tweet’ of Ms Bercow. The Lord McAlpine case is a perfect illustration how a tweet that did not even make any allegations on its own could be found to be defamatory and a person can be found liable for a claim for libel. When reading the McAlpine case with the Cairns case one can see that the potential liability for the defamation can increase exponentially if the viral effect of the internet is taking into account when determining the value of the potential damages.
2 3 Discussion The cases discussed above illustrate the fundamental problems when dealing with the conflict of rights on social media. On the one had there is the ease of communication and the sharing of information that has been a hallmark of these services and on the other hand the right to protection of one’s personal rights, like the right to reputation and not to be harassed. The conflict between these rights have been escalating and the new battle ground is social media where it has been made more easy to persons to be victim of the abuse but also where people make statements that are abusive without realising that they can be held accountable for the statements that they make. The primary driver behind all of this has been that fact that a statement that would have been lost in obscurity can now be plucked from the internet and become viral. This means that making a potentially innocent statement or joke that would only have been seen by a small group of people can be open to public scrutiny. The next section will look at the rights involved and how the courts are attempting to balance these rights in the cases that have just been discussed.
67 Ibid para 87-88 68 [2012] UKSC 11 69 Ibid Para 5
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3 Conflicting rights 3 1 Freedom of speech The right to freedom of speech is a right which is protected by both the Human Rights Act 1998 of the UK and by the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as Amended) (ECHR). Specifically section 10 of the ECHR which enshrines the right to freedom of speech and the Human Rights Act of the UK incorporates the ECHR into UK law. Thus the right to freedom of speech in the UK should be protected as required by the ECHR and the Human Rights Act sets out how the rights should be interpreted. The right to freedom of speech should always be balanced with other competing rights such as the right to privacy, which is enshrined in section 8 of the ECHR. This creates a natural conflict because a person has the right to freedom of speech but if the speech infringes the rights of another person then there is a conflict. There are a number of conflict areas between the right to freedom of speech and other rights. Such as the right not to have defamatory statements made against a person or the right not to be harassed. This means that when it comes to trolling and defamation on the internet and on specifically social media there is a direct conflict between these rights. Unfortunately for many people, such as some of the examples that have been discussed, one can make statements on social media that raises a conflict between the right to freedom of speech and the rights of third parties. This problem is enhanced by the fact that because the distancing effect of social media, users will make statements that they would not utter in public. The primary issue is that unlike making an oral statement in public, writing something on social media can be saved and shared again and could potentially go viral.70 When one looks at the current state of defamation law relating to the internet the majority of the laws and cases have related to online service providers hosting the defamatory content or posting the content on their news websites.71 This means that there are a large amount of case law dealing with defamation in the context of internet service providers or media organisations but not a large amount of case law dealing with the general public placing defamatory statements on Facebook or Twitter. This creates a level of legal uncertainty which is generally followed by shock and outrage from the general public when a person is held accountable for the statements that they post on social media. The question is then how should one proceed to deal with defamation and trolling on social media?
70 ECHR and Defamation West Law insight E Craven, Matrix Chambers 71 Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), Google France SARL v Viaticum SA and Luteciel SARL (C-237/08) and Google France SARL v Centre national de recherche en relations humaines (CNRRH) SARL and Others (C-238/08); L’Oreal SA and Others v eBay International AG and Others C-324/09; Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd, Takis Kounnafi, Giorgo Sertis C-291/13
22
In the case of Guardian News and Media Ltd72 the UK Supreme Court had to weigh up the rights of a person accused of terrorism related activities versus the rights of the media to report the name of the person suspected of the acts. The court specifically spoke about the balancing act that needs to be done when dealing with the right to freedom of speech and the right to an individual’s reputation, which is included in the art 8 rights of the ECHR.73 The courts have then accepted that there is interplay between the related rights. The Guardian case unfortunately again dealt with the (old) media and not users of social media. In another case the UK Supreme Court upheld an interim injunction prohibiting the publication of the names of the parties involved in a celebrity sex scandal.74 The problem though is that the name of the celebrity has already been revealed on social media and foreign media. The UK courts do not have the power or jurisdiction to enforce the order to keep the name of a person confidential outside of the UK and that means the entire injunction serves no purpose other than to stop the news media, in the UK, from naming the person.75 One possible repercussion of this case could be the fact that the users of social media who had breached the gag order in the UK or in other jurisdictions could potentially be held liable. In this example for whatever the reason there was a gag order to not state the names of the parties to a court case. Yet the names were revealed on social media. So in this instance even though there might be reasons to want to protect the identities of the parties the courts cannot easily stop the spread of the information on the internet. The best example is the case where the footballer Ryan Giggs had an injunction to protect his identity from being publicised because of an apparent affair. A British MP John Hemming named him in the British Parliament after saying that he has already been named by 75000 twitter users and one cannot jail all of them.76 From this example it seems that it is not so much the right of freedom of speech versus the right to reputation but rather the problem that the effect of the internet and social media has on publishing. Because of the internet and social media allows the publication of a work by large amounts of people it makes it difficult to decide who to sue when one is defamed. Then one would have cases like the Lord McAlpine case where a single person was singled out because of the fact that they, Sally Bercow, was also a well know figure, with deep pockets. The one interesting point one can take from the discussed cases is that those who feel infringed will go after social media users with deep pockets since legislation protects the large internet service providers from being held liable.77 The
72 Re [2010] UKSC 1; [2010] 2 A.C. 697 73 Ibid Para 43 - 52 74 PJS v News Group Newspapers Ltd [201] UKSC 26 75 T Morgan, N Harley, D Barrett, “Celebrity ‘threesome’ identities revealed across the globe but Supreme Court still considering case – everything you need to know” (27-04-2016) The Telegraph
23 following section will deal with social media and how the criminal law deals with it, since with defamation of character one deals with civil suits between the members of the public. With trolling or harassment on the internet the government and police need to become involved. This creates an additional layer of problems. When dealing with cases between users it is only the users who are sanctioning each other and it does not involve a third party like the state. Users will rarely sue if there is no reward, but does not need to be a monetary award, to justify the court case. Once the state is involved and criminal sanctions are used it could have a much stronger impact on freedom of speech.
3 2 Trolling and freedom of speech Freedom of speech needs to be more carefully approached and protected when the possible infringement could have criminal sanctions as an effect. As such the act of defining when an act or conduct will account to trolling and have implications relating to the Communications Act of 2003, the Malicious Communications Act of 1988 and the Protection from Harassment Act 1997 has to be carefully approached. So as to ensure that there is no violation of the Art 10, of the ECHR, rights of the person accused of trolling. The acts mentioned don’t specifically define what would constitute harassment or trolling and as such each case has to be dealt with on its own merits. That means that the courts would have to determine whether the statements in that context qualified as being grossly offensive or not. The Collins case is a good example of a case where the defendant made grossly offensive, racist, remarks over the telephone to the staff of his local Member of Parliament. In the magistrates court the case was dismissed because the magistrates found that because none of the people, he spoke to, belonged to the groups Collins was insulting, they could not have found the messages to have been grossly offensive but only offensive.78 The case was appealed and the court found that the intention of section 127(1) of the Communications act was to stop people from using a public network to send grossly offensive messages. As such the fact that Collins had the intention or mens rea to grossly insult through his words and conduct he was found guilty of having done so.79 Cases like the Collins case have to be carefully approached so as to not have a dampening effect of the freedom of speech of the users of social media. Users should be aware of what they can write on social media and they should be able to judge whether it could hold criminal implications. Otherwise users will continue to abuse others on social media or make statements that could lead to criminal sanctions. The other side of the situation is that users will no longer feel comfortable speaking their mind on social media and this could cause users to feel censored. The section that have been discussed deal
78 DPP v Collins [2005] EWHC 1308 (admin) para 10-13 79 DPP v Collins [2006] UKHL 40 Session 2005-06 para 7-10 and 25-27
24 with the rights in question while the following section will deal with the effectiveness of the rights and what goal they attempt to reach.
3 3 The goal of punishing defamation and trolling, and its effectiveness One of the crucial issues in dealing with the law and the internet lies in how to effectively enforce the law. Investigating whether and how the applicable law is applied provides for effective relief or remedies is necessary when dealing with behaviour that could cause harm to others. The following part of the paper will consider whether the current laws provide for effective relief to the individuals and whether the law can appropriately punish those who break it. The goal of why defamation is punished and its effectiveness will first be reviewed, followed by trolling where the effectiveness of the criminal prosecution will be considered.
3 3 1 Defamation “The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men.”80
The quote from the judgement written by Sir Thomas Bingham M.R. provides a clear reasoning as to why one is awarded damages in a defamation case. The statement has been quoted in many other cases when the courts were evaluating the amount of damages which should be awarded.81 The statement clarifies that one has to take into account the damage to the reputation of the person and it must also be there to vindicate the person who was defamed. Thus the amount of damages should be a message to the
80 John v MGN Ltd [1997[ QB 586 at 607-608 81 Cairns v Modi [2012] EWCA Civ 1382 1022
25 public that this person was wronged. The amount will indicate to the public that clearly, that which had been said about the person was so wrong the court decided to place a large monetary value on the hurt which was caused.82 The reason for dealing with the monetary damages, of a claim for defamation, is the fact that if a claimant cannot take the person who defamed them to court, then the entire system will break down. Also if the claimant cannot exact any damages from the defendant then the case will run the risk of falling foul of the de minimis rule. Examples of the above would include situations like in the case of Ryan Giggs where 75000 people revealed his identity on twitter. The statement by the MP John Hemming is true in that no government or court system can handle suddenly charging 75000 people for breaching an injunction. The same would be said of the Lord McAlpine case where the claimant dropped all charges against the Twitter users with less than 500 followers. The requirement was that they should make a donation to a charity and then the charges would be dropped. One can only imagine how many people the claimant had intended to pursue and that time that would have taken.83 Lord McAlpine focussed the majority of the claims against well-known users of Twitter and those with deep pockets.84 The case illustrated the point that if no high-profile Twitter users had defamed the claimant then it would have been difficult to prove the benefit of pursuing hundreds or thousands of Twitter users, who might not even have the money to fight the court cases, never mind paying any substantial damages. This illustrates the problem of dealing with a multitude of single users instead of large media houses or corporations. The problem above is similar to the problem encountered by the film and music industries when trying to combat piracy. Trying to prosecute every single person who downloaded infringing copies of a work was not economically feasible. In the case of piracy the copyright holders went after the websites that hosted the infringing content. Unfortunately, as discussed before, this cannot be done with single users in defamation cases. The case of John Bunt v David Tilley and others85 serves as precedent that one cannot sue the internet service providers for any defamation that occurs on their networks as long as the ISP only serves as a host and only passively provides access to the users.86 This case shows that one cannot take action against the social media networks as long as they only passively give access to the users and not promote or interfere with the messages.87
82 Ibid 1025 83 Anonymous “Lord McAlpine drops some Twitter defamation cases” (21-02-2013) BBC News
26
The same problems are applicable when dealing with trolling but the primary difference is that there is the potential for a criminal sanction and one can argue that the harm to the victim is worse than just having your reputation harmed. In the case of trolling the harassment can lead to emotional harm that can manifest in a number of ways. There have been cases where victims of severe harassment online have even committed suicide for lack of any other options.88 The fact that the impact can be so much worse on the potential victims and the punishment can be harsher means that trolling has to be dealt with, but there are often the same problems as one would have when dealing with defamation.
3 3 2 Trolling When dealing with trolling, the situation is slightly different in that trolling can potentially have criminal law implications, in which case it is the police and the crown prosecutors who will have to deal with the situation. There are also potential civil remedies that a victim of trolling can take against the person trolling them. The civil action will follow similar procedures as in defamation cases. The difference which will be discussed here is that criminal liability can arise from trolling. Trolling can have criminal law implications when it amounts to making threats, stalking or harassment, in all of these cases the actions can take place either online or offline. In the cases of trolling there are times when a large group of users could be involved such as in the example mentioned above where the McCann family was harassed by multiple users. In that case the reporter who exposed the identity of Mrs Leyland was given her information by a police source. The police had apparently been investigating some of the people trolling the McCann family.89 The cases of trolling the British criminal enforcement system wish to deal with can only target people within its jurisdiction. This can be a severe limitation with the international aspect of the internet, because only people residing in the UK can be criminally prosecuted for their actions. There are cases where action has been taken against persons who are trolling or harassing people on the internet but the amount of cases has so far been limited. Unfortunately there have only been very limited cases that have dealt with so-called cyber-stalking and trolling where the persons have been criminally prosecuted. Through researching the case law databases it has been extremely difficult to find law reports dealing with trolling cases. If the accused admits their guilt or
88 S Robson & L Warren, “’Çan you kill yourself already?’ The vile online messages from internet trolls ‘that lead girl, 16, to hang herself’” Mail Online (12-12-2012)
27 do not challenge the lower court decision then often here are no official reports about the cases. This is a problem when one wants to do an analyses of the cases that have occurred so far. The news media report that there have been a large number of convictions for internet related harassment.90 But there are no law reports that have been published except for the R v Stacy case that was mentioned earlier. The Crown Prosecution Service (“CPS”) of the UK has detailed guidelines on how to deal with social media harassment. Currently the CPS is reviewing the guidelines.91 The new guidelines are very detailed and will only be broadly discussed. The guidelines make it clear that the police will only take action if the communication to the person creates a credible fear and targets a specific person. The guidelines also detail that the police must take into consideration how much evidence they have to work with, the context of the situation, the public interest in prosecuting and lastly whether there could be any conflict with art 10 of the ECHR. The police will only prosecute if they have enough evidence that the trolling contains a threat, that it is not part of some form of banter or crude joking around and if there is a public interest to stop the actions of the individual or persons involved. Lastly the police will have to ensure that their actions will not constitute an invasion of the right to freedom of speech. The prosecution guidelines show that the UK police are aware of the intricacies involved in prosecuting an individual for their conduct on the internet. But the requirements for prosecution also place a heavy burden on the police to ensure that the prosecution should continue. British news reports state that around 150 people were jailed for trolling in the year 2015, yet most of the sentences were very short, averaging around 2 months.92 This shows the seriousness of the police in combatting trolling but it will not stop users from other jurisdictions from continuing to troll. The only result of a non-coordinated system would be that users would refrain from trolling individuals from their own countries.
3 4 Non-legal repercussions An additional hazard when dealing with the consequences of irresponsible use of social media can arise in the form of online or real world vigilante actions. Some of the actions that have been taken in social media include informing the parents or girlfriends of men sending offensive messages to women.93 But it can also be more aggressive in the form of online harassment being sent to the original person who was trolling or harassing the person. One of the current forms of real world consequences is called
90 Anonymous, “Internet ‘Trolling’ sees 150 people jailed” SkyNews (04-07-2016)
28
“doxing”94 which involves one person posting the personal details of another person on the internet. Usually with the intent to give users the ability to harass the person in real life.95 There are many examples of where this form of digital vigilantism96 has gone wrong and caused more harm than good. After the Boston Bombing in 2013 social media vigilantes went on the hunt for people they thought could have been involved. The digital vigilantes identified a number of people incorrectly and this created a lot of problems for the innocent people identified as possibly being the bombers. 97 This shows that the effects of exposing anonymous conduct of people online by revealing their identities can create unintended consequences. A telling example of where the real life effect of posting content online has had a profound effect is the case of Brenda Leyland. Mrs Leyland was revealed, by a Sky News reporter, as one of the Twitter users who had been sending abusive messages to the McCann family. After being confronted by the journalist about her actions and being revealed on national media as one of the people harassing the McCann’s, Mrs Leyland committed suicide.98 There are many factors that contributed to the state of mind that caused Mrs Leyland to commit suicide, but according to her family, being revealed as Twitter troll helped play a larger role in pushing her over the brink. 99 The inquest found that she had been heavily affected by being publically revealed and that it had hurt her standing in the community.100 This example shows how a person’s actions on the internet, behind an anonymous user name, can affect them if it’s revealed who the person is behind the user name. Another example of where posting on social media can cause other repercussions is on the social media website Reddit where one of their most well-known trolls lost his work after being identified on a news website.101 This illustrates that it is not only the law or regulation that can have an effect on how users behave on social media networks. The users, if aware of the consequences of their actions, could learn to self-regulate their conduct, not only out of fear of legal consequences but also societal backlash. The
94 S Ramesh, “What is Doxing and How it is done?” GoHacking
29 examples where users have lost their jobs or have been harassed in real life because of their negative conduct on social media should also be kept in mind when working on halting bad conduct on social media. The following section will deal with possible solutions to the problem of users acting in a way on social media that can have negative repercussions.
4 Discussion of possible solutions and problems 4 1 Jurisdiction It is very difficult to try and find a solution to dealing with offensive content on the internet because of the international character of the internet. Many countries such as the UK has laws in place to stop hurtful actions from occurring on the internet. Examples include laws against harassment on the internet, the posting of revenge porn and libel laws. The problem, which has been mentioned before in this paper, is that a court in the UK cannot enforce its judgement in another jurisdiction. The Yahoo! Inc v La Ligue Contre Le Racisme Et L’Antisemitisme102 case is an example of how difficult it can be to challenge the hosting of content internationally. The case has gone through multiple appeals but the final appeal provides a good background on the case. The case was brought against Yahoo! by two French organisations because one could access the US version of Yahoo! from France and on the US Yahoo!, there was a marketspace where one could purchase Nazi memorabilia. This is illegal in France but because of the strict freedom of speech protections in the USA it is allowed. A French court ordered Yahoo! to no longer provide access to the US Yahoo! website to people residing in France. The court ordered that if Yahoo! were to breach the court order it could be liable for a fine of 100 000 euros per day. Yahoo! then applied for an order in the USA to declare that if such fine, which was never held against Yahoo!, were to be issued then it would not be enforceable in the USA because of the strong free speech protections. This order was granted by the district court and after many appeals the order still stands.103 But the final appeals court did not directly confirm the question about foreign court orders and freedom of speech.104 The Yahoo! case shows how difficult it is to enforce an order in another jurisdiction especially when the foreign jurisdiction is the USA. This is a problem since the majority of the worlds leading social media networks are based in the USA. The effect is that trying to prohibit certain forms of speech on those networks through foreign court orders would be nearly impossible. This illustrates that national laws would only be applicable and
102 Yahoo! Inc v La Ligue Contre Le Racisme Et LÁntisemitisme 433 F.3d 1199 (9th Cir. 2006) 103 Yahoo!, Inc v La Ligue Contre Le Racisme et L’Antisemitisme 169 F.Supp.2d 1181, 1194 (N.D.Cal.2001) 104 Yahoo! Inc v La Ligue Contre Le Racisme Et LÁntisemitisme 433 F.3d 1199 (9th Cir. 2006) at 1201- 1205
30 enforceable if it is used against the local population. The second way that it could be enforced against persons who are not resident in the country is through regional blocks or agreements. The EU has the Brussels I Regulation105 which in article 5(3) states that a person my take action against another person in a member state where the harmful event occurred. The Rome II Regulation106 states in article 1(2)(g) that obligation arising out of violations of personal rights such as defamation shall not be included in the regulation. The CJEU dealt with the situation in the case of eDate Advertising v X107 where it stated that in cases of defamation on the internet the person who incurred the damage has three possible routes of taking action against the infringer. The options are to either sue in the member state where the publisher of the content is established or in the member state where the centre of the infringed person’s interest are based. The first two options are for the full universal damages, but the third option is only for the damages in the applicable member state. The third option, then, is to take action against the infringer in every member state where the online content was placed or had been accessible.108 The situation within the EU means it is much easier for a person to institute action against another inside the EU than to try and go to another non-EU country. But it still requires a willingness from the person who was defamed to have to take action against the infringer in a potentially foreign jurisdiction which could be costly. This could then lead to situations as mentioned above where a person would only take action against an infringer with deep pockets where the financial reward would be worth the expense of suing the person in a foreign court. Thus the system of taking legal action against a person making defamatory statements online, is in place in the EU, but there are still potentially high cost implications. In the case of trolling the person being insulted or harassed does not have to take the action themselves but trying to convince the local police and prosecutors in a foreign jurisdiction to act could be problematic. Fortunately in some jurisdictions, such as the UK, they are working on prosecution guidelines to advise the police and prosecution services on how to deal with the criminal element relating to trolling and online harassment.109
4 2 Intervention by the Social Media Networks Social media networks have been trying to fight back against racism, hate speech and harassment on their networks. One of the ways the firms fight back is by making their terms of use stricter. This then allows the platforms to remove content and ban users who post offensive messages on the networks. Unfortunately, the way the new rules on the platforms have been enforced have caused some outrage. There is a
105 Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters. 106 Regualtion (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) 107 eDate Advertising v X and Oliver Martinex v MGN Limited, joined cases C-509/09 and C-161/10 108 Ibid para 37 - 52 109 http://www.cps.gov.uk/legal/a_to_c/communications_sent_via_social_media/
31 website dedicated just to keeping track of how social media platforms sensor content that some might find offensive and others not.110 The reason for the outrage is the fact that some argue that allowing social media networks to censor their users is against freedom of speech. There has also been some controversy regarding what is deemed to be statements that should be banned and what statements should not be banned. There have been a number of cases where people have complained of receiving harassment on social media and where they felt the response from the companies was not appropriate.111 In an article written by a writer for the Fusion website the author sets out how she was harassed and threatened on Twitter yet when she reported the users Twitter only removed one single message. It was only once she reached out to Twitter, in what one can assume was a more formal capacity, that the network removed two of the users who were sending her abusive messages.112 This example, along with multiple others, such as the way Facebook and Instagram deal with images of women’s breasts, which have caused some controversy.113 The mentioned examples illustrate the problems involved when allowing the social media networks to have the power to censor the content of its users.114 There is also the problem of what should be deemed as offensive or as harassment, since not all people are offended by the same behaviour or content. The problem is compounded when dealing with slighter nuances such as the case of Mr Chambers, who jokingly threatened to blow up an airport. Allowing for the platforms to ban any forms of jokes that could be seen as threatening could be a step too far and would definitely cause more outrage than stopping online harassment. The users of Twitter apparently send close to 500 million tweets per day.115 The only way one could monitor such a vast amount of content would be through an automated process which would struggle to differentiate between real threats and other forms of speech. One can only imagine the difficulty in differentiating between threats, harassment, jokes, sarcasm, slang or even images and emoticons. The other option is to use a system of reporting and verification, which is currently used by most social media networks. Using such a system, however requires a large amount of staff who have to be on standby to read and review all the flagged tweets. Even if only 0.001% of all tweets sent per day are flagged by users as possibly being offensive or harassing then it would still constitute 5 000 tweets per day that have to be checked by staff, with
110 https://onlinecensorship.org/ 111 KV Brown, “How Twitter treated death threats against me” (22-03-2016) Fusion
32 the additional burden of having to employ staff who can read and understand all the different languages that are used on the social media networks. One can easily see how difficult it can be for an automated system or a staff backed system to enforce any forms of conduct on social media networks. It is clear that the networks wish to combat harassment but it seems that they are clearly struggling. The CEO of Twitter even admitted that the network is failing to protect its users from harassment.116 The result of the above discussion is the fact that the social media networks are in a bit of a catch 22. They are expected to somehow protect their users but without overstepping and infringing the freedom of speech of the users. The Electronic Frontier Foundation wrote an article117 about how the social media networks can go about protecting their users. Most of the ideas forward in this article have been mentioned in this paper. The core arguments provided are that the law must be applied in a smarter and more effective way and that users must be empowered to take action by reporting and monitoring harmful actions on social media. The problem with many of these very good ideas are that they are still open to abuse. The networks can allow users to protect their identities better so as to not be harassed but this will also allow trolls to better hide their identities. The systems through which users can report inappropriate behaviour can also be abused, not only through nefarious reasons but also because of cultural or other customs. A good example comes from the debate about whether images of women’s breasts should be allowed on the networks or not. There will always be a conflict between those who are happy with it and those who will keep on reporting the images as inappropriate. This places the networks in a very difficult position. Some options that can be used or that have been tried will be discussed further.
4 3 Real name use Facebook tried to force a form of self-censorship on its users by requiring that users have to use their real name on their Facebook profile. This could have an obvious advantage that a user might be more inclined to not post offensive messages or harass other users since their identity is not hidden behind a, possibly, fake user name like on other social networks. The problem is that again there have been moves to remove this feature from Facebook. The arguments against the real name policy is that people who are for example working in high risk environments or who are under protection from domestic violence would wish to use the network under pseudonyms. Other users might want to stay anonymous so as to avoid potential abuse and others might just want to keep their online identity separate from their real world identity. It seems that Facebook
116 N Tiku, C Newton, “Twitter CEO: ‘We suck a dealing with abuse” (04-02-2015) The Verge
33 is slowly changing its policy after complaints from groups all over the world.118 This means that another avenue to force users to self-regulate through removing their anonymity will definitely not be possible with regards to any of the large social networks.
4 4 Education An option that should be part of the solution is to educate the users of social media platforms of the possible risks. The networks themselves should run programs to warn its users about the risks involved in making offensive statements or harassing others on the internet. It should not be the role of governments to deal with the education of the users as it currently stands. France and Germany have launched campaigns to educate the users of social media platforms not to post pictures of their children online. The reasons are not directly connected to tolling and online defamation but rather privacy and paedophilia but the fact remains that the governments are taking this action and not the social media companies. 119 Thus possible regulations to force the social media companies to run educational campaigns relating to online harassment and defamation could have a much stronger influence on the users of the platforms than interventions by governments. A system where the companies have to educate its users with the help of government institutions could have a far stronger effect than allowing the current status quo. Which is that every now and then a person is jailed for harassment or fined for defamation. This paper would argue that these actions will not scare off the public because they will view it as an external event that will not happen to them. A possible tool that could be used in conjunction with education is to use the scanning systems that the social networks have, to pick up certain key words, that are listed as possibly being offensive or which could be used when harassing someone. The system could work by giving an alert to the user warning them that the message contains words that could be deemed offensive or harassing and that they should maybe reconsider using the words or sending the message. The system would not interfere with the freedom of speech of the users since they can still post the message, after acknowledging that they are aware of the potential risk in sending the message. Such a system would then not interfere with user’s use of the network other than informing the users that there is a possible risk. This could tie in with the work of the networks to educate its users about harassment on social media or of the potential legal implications of harassing another user. While users could just ignore the alerts and press send or “OK”, the reminder might have some impact. From personal experience the writer can say that
118 D Kayyali, “Facebook’s New Name Policy Changes are Progress, Not Perfection” (05-11-2015) Electronic Frontier Foundation
34 the prompts from Gmail to remind one to add an attachment if the word attachment is used in an email has been a great help.
4 5 Self-regulation The advantage of self-regulation is that it can be done much faster than through a legislative and legal approach. Self-regulation could also have a worldwide effect which national laws do not have. The issue with self-regulation is that since the industry or companies will regulate themselves it may leave holes for potential abuse, and for the companies to promote their own agenda above that which would be in the public interest.120 Self-regulation could be very effective and can be quickly implemented as long as the users of the network accept it. The steps are taken by the networks may become problematic if it causes the users to lose trust in the network, then the users may potentially shift to another network. The manner through which Facebook is trying to regulate nudity on its network is a good example of how difficult it could be to self-regulate. Facebook is trying to keep nudity off its network, most probably to stop pornography being posted and hosted on its network. Unfortunately this has come in conflict with users who post artistic pictures or pictures of art that contain nudity. While the network is trying to keep itself open and accessible to all, it is now coming into conflict with anyone who posts any pictures that might be too risqué. People are now criticising Facebook for “censoring” artistic pictures and overstepping.121 One thing that one cannot argue is that it is effective in getting attention to the fact that Facebook does not want nudity on its network and that it will be removed as soon as it is found or reported. That shows that the self-regulation can be very effective but can also open the network up to a lot of criticism when it comes to how it is implemented.122 Self-regulation by the social media networks is an option that could be used as a means of expressing the fact that the network sees the conduct of a user as unacceptable. An example of the self-regulation that the networks and their administrators can use come from the popular website Reddit. Reddit uses a number of interesting ways to deal with users who do not conduct themselves appropriately. One of the more interesting ways they used to do this is called “shadow-banning”.123 The way the system worked was to
120 N Bowles & S Thielman, “Facebook accused of censoring conservatives, report says” The Guardian (09-05-2016)
35 just make all the post by a specific user invisible to all the other users, but without informing the user that they had been “shadowbanned”. This had the effect that some users would not realise that they had been banned and all that would happen is that they would get no responses from the messages they posted. The problem was that the system was often abused and it was difficult for users who had been “shadownbanned” to appeal their ban. The system has now been replaced and instead users just get temporary suspensions when their conduct break the rules of Reddit. One of the things that made the “shadowbanning” of a user effective was the fact that the administrators of the social networks would not have to worry about deleting the content that the user has been posting. As have been mentioned before the social media networks have to be careful when it comes to deleting the content of users because it could be viewed as a form of censorship and that will not be accepted by many of the users. The problem with banning or suspending the account of a user of a social network is that often the user can just go and create a new account on the network and continue as they have before. This has meant that some networks will temporary suspend the IP address of the user but that can also be easily circumvented by a user using a VPN or an IP masking tool. This means that suspending the accounts of users or trying to ban a user from a network is difficult to implement in practice but it will at least get the message across to the user that their conduct is not acceptable. One can hope that at least for some users this can have the effect of educating the users that their conduct is not what is expected of them.
4 6 Summary The options listed above illustrate the difficulty in trying to regulate the behaviour of users of social media. The numbers of users are too vast and diverse to easily monitor the traffic and all the messages that have been sent. The monitoring of messages would also raise questions about privacy and freedom of speech. The use of real names and the removing of anonymity on social media will also not work because of a myriad of reasons and also invoke privacy related issues. The only option that remains would be to try and educate users as to the dangers and legal implications of abusing others on social media. This combined with a proactive legal system that works to assist and protect users suffering from abuse online is the only options available to police the platforms. The use of legal action against users who are guilty of defaming others is only useful when the users who are being sued have the means to pay compensation, otherwise the legal action is a fool’s errand.
36
5 Conclusion This paper looked at the legal repercussions that can befall a user of social media who sends or posts messages that could be deemed offensive or libellous. The UK was used as an example of a jurisdiction where a number of high profile cases have occurred where users have been taken to court for damages or criminally prosecuted for their actions online. The cases were used to highlight the fact that the users of social media are not immune from legal liability for their actions online even though many people seem to believe that they are untouchable when using the internet. This paper aimed to serve as both a study on the legal repercussions that have befallen the people in the cases that were discussed but also to further the discussion on how to deal with trolling and defamation on the internet. The fact that that many of the laws that deal with defamation were originally created to regulate the old formal media and news organisations resulted in a conflict arising when the laws are applied to individuals. The situation is compounded by the fact that, since content can go viral on the internet, one person could author a message and many others could share it and in the current legal system all of the parties could be held liable for reposting or sharing a libellous message. This could create liability for a large group of people but since the group could be too large the claimant might only go after the original author or the individuals with deep pockets, who shared the message or referenced it. This reality creates questions about whether the laws that were examined are achieving the goals for which they were created. The law of defamation has been enacted with the aim to protect the reputation of an individual and to seek damages if it has been unfairly infringed. Nevertheless this cannot work when thousands of users of social media share a post or news article that carries the defamatory content, this reduces the law to mere words. On the other side of the discussion are the users themselves who fail to realise that by sharing a news article or making a comment about a topical event could land them in legal trouble. When dealing with trolling there is the additional consequence that a user can be jailed for making abusive or grossly offensive statements online. The problem is that not all people necessarily perceive the same content abusive or offensive. In addition, users do not always completely understand how far and wide their tweets or Facebook messages can be shared. This means that a user making an offensive tweet to his friends might not even think that it could be shared with the rest of the world or people that might find it offensive. Yet the conduct of some users on social media can be seen as at least universally unacceptable and as necessary should be stopped. Nonetheless in the area of internet use, given the international character of the internet it is highly difficult to take action against a person who is based in another country. The end result of the analyses of the cases is that while national laws can be used to prosecute or claim damages from users of social media it is not very effective on the international scale of the internet. The difficulty that arises is, how does one educate and protect users from online behaviours that could potentially land them in legal trouble. The
37 aim would be to allow users to understand that there are consequences to their online actions and it will hopefully have the effect that there will be less problems relating to abuse online through trolling or defamation. The crucial element to protecting users from getting into trouble online seems to be to educate them about the risks and the legal implications of their conduct. Thus self- regulation like one finds in the real world. That is why the one of the primary goals of this paper would be to recommend that programs should be established to educate users about what conduct is acceptable and what is not when using social media and the internet. The education campaigns should be run by the social media networks themselves because they have the access to the users. It is only once the users have been educated about the risks will they hopefully stop their abusive or malicious actions. There are multiple ways that educating users can be helped along. The social media networks can use automated programs to warn users if they are about to use offensive or racist terms. The networks can also remove users or ban them temporarily, but all of this should be done with a firm understanding that the networks have to be very careful not to over-step and be seen as censoring their users. The governments and local police forces should be trained and equipped to be able to handle situations where the users have overstepped so as to show that the law will interfere and take corrective measures. Unfortunately as has been mentioned in this paper, the international nature of the internet creates obstacles to the application of the law. This reality reinforces the main argument of the paper that education is the only efficient way to build a user base who are aware of the risks involved in socially unacceptable behaviour on the internet. Further the awareness combined with the correct tools will allow the users to act in ways that will not put them at risk of any potential liability or harm.
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