As the Crown Prosecution Service (CPS) launches new social media guidance that sets out the range of offences for which social media users could face prosecution, we asked our rising star of the bar – barrister Quentin Hunt – to unpick some of the legal issues surrounding troll activity, and to give us some tips on how to deal with it.
What do Leslie Jones (actress), Zelda Williams (daughter of comic actor Robin) Caroline Criado-Perez (activist and journalist), Sara Payne (activist and mother of murdered schoolgirl Sarah), Matt Lucas (actor and comedian) and Stephen Moffatt (writer and producer) all have in common? Each of them, at some point, has taken themselves off Twitter as a result of abuse from internet trolls.
They’re not the only the ones. In the Brexit aftermath, think tank Demos discovered that more than 13,000 tweets were sent between 24 June and 1 July that expressed ‘xenophobic or anti-immigrant attitudes’. And for months, now, the Labour party has been embroiled in argument and counter-argument about inter-party online abuse, with its National Executive Committee announcing that members will be required to sign a code of conduct for online behaviour.
Online abuse is a huge – and growing – problem that ranges from name-calling and revenge porn, to death and rape threats and identity theft. A study conducted by the Pew Research Center in 2014 discovered that 65% of 18-29-year-olds had been the target of online harassment and that 92% had witnessed it. As well as individual trolls, ‘virtual mobbing’ – in which a number of individuals make comments to or about an individual – is becoming increasingly prevalent.
Social media channels and the authorities have been criticised for not taking the problem seriously enough, although that is starting to change. Scotland Yard is setting up a £1.7 million ‘troll-hunting’ team, called the Online Hate Crime Hub, specifically to target online hate crime. Depending on which way you look at it, this team is either a better-late-than-never attempt to stem an impossible tide or the very incarnation of George Orwell’s 1984 thought police.
Meanwhile, the new CPS guidelines - launched during Hate Crime Awareness Week - are a welcome recognition that something has to change and are specifically designed to help prosecutors identify and effectively prosecute hate crime on social media. According to the Director of Public Prosecutions (DPP), Alison Saunders: "Ignorance is not a defence and perceived anonymity is not an escape. Those who commit these acts, or encourage others to do the same, can and will be prosecuted."
From a legal perspective, there are four categories of internet crime:
- Threats of violence or damage to you or your property;
- Behaviour, such as harassment, stalking or coercion;
- Online communications that breach a legal precedent or court order (for example, if someone already issued with a restraining order to protect you then contacts you online);
- Any other online communication that could be seen as grossly indecent or offensive.
Many of these examples are clear-cut cases of abuse. But, sometimes the lines between poorly judged banter and seriously offensive behaviour can get blurred. So, when does the right to speak one’s mind turn into misogyny or worse? And why does it feel like there are so many more instances of online abuse?
“There are many forms of online abuse,” says barrister Quentin Hunt. “For example, if somebody falsely uses your profile, or if somebody sends you a grossly indecent or offensive communication. Then, of course, you have libel, copyright theft, defamation of character. This really is an extremely complex landscape, and misusing online channels can result in serious consequences.”
He adds: “Although internet crimes are relatively new, in most cases the legal and parliamentary acts that cover the crimes have actually been established for decades. The difference is that there’s more recognition of online offences now, so these types of offences are increasingly resulting in prosecutions under relevant sections of the legal system. That said new law is being brought in all the time to adapt to this changing landscape.”
For instance, if someone were to create a false or offensive profile that causes harm, the victim could, in fact, prosecute the perpetrator under the Public Order Act 1986. If that profile resulted in financial loss or gain, then the perpetrator could also find themselves facing a prosecution for fraud.
In a different example, we’ve seen cases of of jury members inappropriately using the internet during their service – crimes that can be prosecuted under the 1974 Juries Act, as well as leaving the individual open to being found in contempt of court.
So, what can you do to keep yourself safe, both in terms of what you post and if someone trolls you?
In the first instance, a little bit of common sense goes a very long way. We have become a population of over-sharers and hyperactive jumping beans, ready to hurl ourselves at the bandwagon of outrage. That indignation may be entirely justified, but before you hit the ‘post’ button in anger, it’s worth asking yourself ‘would I say this to the person’s face?’ or ‘how would I feel if someone said this about me in a public space?’ If in doubt, leave it for an hour or two and see how you feel then. Incidentally, this works very well with emails, too.
While social media channels have generally been slow to act on online abuse, you can – and should – report abusive posts and it is possible to block offending accounts. On Facebook you can check your settings to make sure strangers can’t see your posts or contact you.
Most advice recommends you avoid ‘feeding’ the troll. Trolls thrive on argument and, of course, you have the right to respond. Many do, and Twitter is filled with some very eloquent troll-bashers. But, having watched some pretty intense Twitter rows light up our own feeds, we’ve seen the debilitating effect it can have on some people – this is often what leads to people closing their account altogether – and so it’s not a tactic that suits everyone.
If the abuse is very bad, report it to the police. And if you’re a parent, it’s worth checking out Bullying UK, which has an excellent set of articles on cyber bullying.
Quentin’s top tips on dealing with internet trolls:
Don’t just hope it will go away
Like all crimes, if you think you’re a victim you should seek help from the police, or a barrister who knows about private prosecutions as soon as possible – even if you’re not sure whether it’s a crime.
As many as you can. Don’t forget that people can delete stuff, so keep screenshots, keep a diary with dates, times and details. If you choose to ask the police to prosecute publicly, your evidence could be crucial in guiding the Crown Prosecution Service’s (CPS) decision as to whether the case should be heard. Although recent guidance stipulates that the CPS should ‘prosecute robustly’ against internet crimes, the reality is that it may decide that there is insufficient evidence to bring a prosecution, leaving your case unheard.
Consider private prosecution
If the CPS decides not prosecute then you have the option to bring a private prosecution instead. Many people don’t realise that, by law, any individual has the right to prosecute a person that has committed an offence against them. Plus, nowadays, you have the right to prosecute directly through a barrister – you no longer have to go through a solicitor, which can save significant costs. There are other advantages too: you can play a more active role in the prosecution process and because internet trolling prosecutions often involve complex processes – such as applying to the High Court to get social media channels to disclose the identities of anonymous perpetrators – a private prosecution can be more focused in the angles it pursues to bring a case to court. It’s also worth noting that a private prosecution can often be considerably cheaper, results in proper criminal penalties (when successfully argued) and costs can usually be recovered when the case is won.
For more information on internet crime and to discuss a possible case for prosecution, contact Quentin Hunt directly.