Recent reports indicate that as many as 30 people a week have been found guilty of trolling, with the highest rate evident in the south-east of England. There is also a great deal of concern about abusive use of the internet, with reports of one in five children being bullied while online. Over the past four years there has been an eight-fold increase in twitter/facebook prosecutions. This article seeks to explain the care that needs to be taken when it comes to using technology to leave or give comments to, or about, others.
I am aware of students that have been prosecuted for malicious communications (trolling) while sending text/tweet messages. A former Laws student of mine was sentenced in court for sending an offensive message (she was advised by her barrister that she could spend the first few months of the academic year 2012/13 in prison – i.e. rather than with fellow students on a university campus).
Those who post anonymously can be traced.
It is important to recognise that there is no such thing as absolute freedom of expression. If you defame someone they could bring a civil claim against you. Likewise, if you harass or threaten someone the authorities can trace you and you can be prosecuted. So forget any defence claim of freedom of speech, since it will often fail.
When you post comments online, you leave an electronic trace that can be followed back to your computer. It is like leaving your DNA at the scene of a crime. If the authorities are determined enough, they can trace you. Also likely to fail is the idea of posting on Ask.fm/Twitter etc using a pseudonym or posting anonymously. Indeed, has the furor over the suicide of Hannah Smith has recently shown, website administrators will respond to complaints concerning offensive/threatening messages, and they can use IP technology to trace those who post anonymously. Twitter, Facebook, and the vast majority of website administrators, will pass posting information onto the authorities.
The law is such, that the police have recently advised that they do not consider that they need any new laws to tackle trolling. They assert that the existing law is being used for the prosecution of people who troll – i.e. to prosecute those who send malicious communications which are indecent or grossly offensive, a threat, or known to be false. Recently, the Crown Prosecution Service (CPS) have consulted with the public and issued some new ‘preliminary guidelines’ which could, in the future, result in fewer prosecutions. In addition the Attorney General now uses Twitter etc to warn of the danger of publishing the identities of witnesses/defendants in criminal cases. Because of such, it is clear that you should be very careful that you do not place grossly offensive, defaming, or unacceptable, messages on social media websites such as Twitter, Ask.fm, and/or Facebook.
The police have also made clear that they cannot be expected to investigate “every instance of stupidity within Twitter”. They said:“It is important to look at the whole context. It is not just about one tweet, it is a whole range of tweets. Look at what the individual has done: is this a concerted attempt to have a go at one individual in a way that passes the threshold for offences against the law? If it is, then clearly we should intervene and do something to stop it.” It is also the case that you could face a civil claim for compensation if you defame somebody (simply repeating a false claim could amount to defamation).
Think before you post.
My advice to those who tweet is to think before you post. If you think your post could harass, offend, or wrongly identify an individual, save the draft until tomorrow and talk it over with someone before you post. If someone objects to a post – remove it asap and apologise – this may/can help avoid a possible prosecution (also see the below statement from the Crown Prosecution Service) and/or civil claim. Think before you post/text/tweet.
Facebook images reflect your character – apply the ‘Granny Test’.
Similar advice goes for Facebook. Employers and Universities can, and do , search the internet looking for images/comments that reflect your character. If they see adverse images (examples are images of you being drunk, or acting in a stupid, or indecent manner), it could cost you a place at University or a job. My advice for Facebook posting is simple: If your feel happy to show the photo to your granny, then it should be safe to post it on Facebook. Remember: You may think that your image is posted in a ‘private’ area, but a friend could copy it and re-post the image elsewhere.
Originally posted by Dr Jepson on the 4th August 2012. Re-posted, with more up-date information, on the 21st December 2012, 9th August 2013, 22nd November 2013 and 6th December 2013.
………………………… See below CPS statement …………………………
Some of the recent media coverage of the CPS interim guidelines on cases involving communications sent via social media has wrongly implied that claiming to have been under the influence of alcohol at the time of sending a message would be a valid defence against prosecution.
This is incorrect. Rather, where a communication has been sent that is grossly offensive, indecent, obscene or false, there are a number of factors that are likely to mean that a prosecution is not in the public interest. One of these factors is whether the suspect has taken swift action to remove the communication or expressed genuine remorse.
It is this swift removal or genuine remorse that prosecutors would consider when deciding whether to prosecute, not whether the sender was under the influence of alcohol at the time of sending the communication.
It is important to note, however, that where communications amount to credible threats of violence, a targeted campaign of harassment against an individual or breach court orders, cases will be robustly prosecuted.
The guidelines are available for public consultation on the CPS website.
See also an ‘Old LawsBlog’ post on Cyberbullying.