Quashing the beast
By Rod Dadak
With an imperfect legal framework to combat trolling - the posting of offensive comments about people who have died - website publishers should take greater responsibility to prevent the offence, says Rod Dadak
Victor Hugo described "argot" in Les Misérables as the language of the dark, the language of misery. The troll is internet argot for an individual who can at his best be just an irritation but at worst engages in deeply unpleasant cyber bullying on the internet. The origin of the word 'troll' is from Norway and it is a frightening, mythical being referred to in the fairy tale Billy Goats Gruff. The argot is therefore apt in relation to the activities that internet trolls carry out.
Over the last few weeks trolls have been very much in the media spotlight. A fortnight ago a troll, Sean Duffy, a 25-year-old jobless loner, was sentenced to 18 weeks in prison for targeting Facebook tribute pages and posting videos on YouTube to taunt victims and families suffering from tragic deaths. The Facebook pages were intended to be dedicated to the memory of young individuals whose lives were ended by suicide or by murder or unexpected death.
The parents of a 14-year-old girl who died from an epileptic attack found a message by Duffy on Mother's Day entitled 'Lauren's Rotting Body' and a YouTube video with a picture of a coffin saying 'Happy Mother's Day' and were understandably distressed. Copycat trolls posted offensive messages about the four dead miners in Wales the following week. A Facebook page called 'I'm really sad for those four miners LOL j/k they were Welsh' was eventually removed following protests from the public. Such postings are rarely defamatory but they are deeply hurtful and disrespectful. Other examples include on YouTube a gay Lady GaGa impersonator being threatened with death, and on Twitter the comedian Dom Joly has just reported a tweet, threatening his children, to the police.
It is an equally distressing reality that bad trolling is a common crime and has been around since the internet began. In 1995 there were many active trolls following the Oklahoma bombing in the US, such as: 'Putting the kids to bed... Oklahoma 1995.' A leading case, Zeran v America Online Inc 129F.3d 327, brought against America Online, tested by a hapless claimant, whose telephone number had been used to advertise items with the tasteless slogans on them, sought to establish whether the ISPs could be held liable. He failed as it was held section 230 of the Communications Decency Act 1996 provides a privilege defence to all publishers. The judgment recorded that Congress recognised that the threat of lawsuits to freedom of speech in the new internet medium was why section 230 was enacted '“ 'to maintain the robust nature of the internet communication'.
Combating the problem
It can be difficult and time consuming but there are remedies for this offence in the UK. In particular, in order of merit, there are three main statutes (ignoring the Public Order Acts). Section 127 of the Communications Act 2003 headed 'Improper use of public electronic communications network' provides in section 1 that:
'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.'
Those guilty of the offence can face a term of imprisonment not exceeding six months or a fine not exceeding level 5 (£5,000) on the standard scale or both.
The important thing about the offence is that it is the act of sending offensive messages not the act of receiving which is relevant. The test of whether the message is grossly offensive is that of the reasonable man; see DPP v Collins [2006] UKHL 40, where the House of Lords stated that the purpose of the section was not to protect people from unsolicited messages that they might find seriously objectionable but rather to prohibit the use of a service '“ the internet '“ which contravened the basic standards of our society.
The Malicious Communications Act 1988, as amended, originally introduced to combat poison pen letters and blackmail, provides similar relief. Finally, there is the Protection from Harassment Act 1997 which protects those put in fear by such conduct and harassment in general.
More action needed
Trolling is a social ill and most victims rightly feel that the social network websites do not do enough to stop this anti-social behaviour. As most trolls post anonymously, Google, Facebook, YouTube and other social media websites are in a much stronger position to identify the perpetrator quickly. They need to be far more proactive about stopping the practice and are seen to be too slow too often. They also need to exert far more moral authority in closing down offensive sites or removing offensive posts. The police can bring action as they did in relation to Duffy following complaints being made but unfortunately the police and the CPS, as a result of cuts, are hampered in doing this.
Ultimately, therefore, it is those who operate the sites where the abuse takes place who bear the greatest burden of responsibility. This sort of conduct is giving the internet a bad name and it is time that social media websites cleaned up their act. They can and should do more to protect the public from the troll and his nasty influence on the net.