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Trolling – When is Internet Banter Criminal?

Trolling – When is Internet Banter Criminal?

Recently, a 25-year-old man, Sean Duffy, was jailed for 18 weeks for posting comments on a dead teenager’s Facebook Tribute page including ‘I fell asleep on the track lolz’. His comments can be a characterised as part of a larger phenomenon that has swept across the internet known as ‘trolling’, where websites and/or individuals are bombarded with insults, provocations or threats. Trolling can rise to the level of criminal an offence under Section 127 (1) (a) of the Communications Act 2003 – Improper use of public electronic communications network – if the conduct is sufficiently serious.

Section 127 (1) (a) of the Communications Act 2003 states:

(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

Director of Public Prosecutions v Collins [2006] 1 W.L.R. 2223 is the leading authority on Improper use of public electronic communications network. Collins involved an appeal against a man, whose case had been dismissed, after he made telephone calls and left recorded messages over the two years from January 2002 – January 2004 to the constituency and Westminster offices of Mr David Taylor, MP North West Leicestershire, where he ranted and shouted and made reference to ‘Wogs’, ‘Pakis’, ‘Black bastards’ and ‘Niggers’.

Collins laid down additional elements to the offence in the Communications Act 2003. The House of Lords stated that to be guilty of the offence, one must to demonstrate (a) an intention to be grossly offensive or (b) aware that they may be taken so:

Mr Perry, for the Director, relying by analogy on section 6(4) of the Public Order Act 1986, suggested that the defendant must intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so… I would accept Mr Perry’s submission.

A panel of five of the House of Lords, with Lord Bingham writing the leading judgment, also decided it was not enough that there was an intention to be offensive or aware that the words could be taken as offensive but also it was required that a reasonable person should find the words used to be grossly offensive. Lord Bingham in Collins wrote:

I conclude that the respondent’s messages were grossly offensive and would be found by a reasonable person to be so. Since they were sent by the respondent by means of a public electronic communications network they fall within the section. It follows that the respondent should have been convicted.

For many, trolling is an act that is performed anonymously as some websites do not require signing up and providing personal details in order to contribute. Comments are either denoted by ‘Anonymous’ or by a screen name which is not linked to any sort of personal details other than an IP address.

Addressing ‘trolls’ that remain anonymous can be an arduous task to resolve, although some, like Sean Duffy, are taking to posting their abuse under their own name. Duffy, however, is not the first person to be jailed for internet trolling. Colm Cross was imprisoned last year for posting obscene messages on Facebook tribute sites, including that of Jade Goody.

Trolling can be considered apart of an international phenomenon, which includes cyberbullying. A disturbing case from Missouri in 2006 was among the first high-profile cases, when 13-year-old Megan Meier committed suicide after a woman, Lori Drew, created a Myspace account – for a fictitious 16-year-old boy called Josh Evans – to find out what (if anything) Meier was saying about her daughter. A 49-year-old woman Drew was the mother of one of Megan Meier’s former friends. Drew lived only four houses down the street from Meier and knew that Meier had left her former school because of bullying.

Meier and ‘Evans’ engaged in a flirtatious relationship over Myspace and Drew, using the fictitious Josh Evans, told Meier that the world would be a better place without her. Approximately 15 minutes after this exchange, Meier’s mother, Tina, discovered that her daughter had hanged herself from her bedroom closet. Drew was acquitted of unauthorised computer use in 2009 in United States v Lori Drew due to concerns that a conviction would criminalise false online identities. The Megan Meier Cyberbullying Prevention Act was introduced as a result.

It can be understood that while many ‘trolls’ may not view their behaviour as criminal, the legislative and the judiciary do view their behaviour as criminal. The cloak of anonymity is an illusion – if someone wants to find out your identity on the internet, unless advanced computing skills are used, it is still possible regardless of whether a screenname is used or not. If you are grossly offensive to another person over the internet, it will not matter how the message is delivered or whether it was read; it will only matter that it was delivered in the first place. I would emphasise the words of Jacqui Rivait:

While there are certain social graces or politeness which involve not hurting another’s feelings; if you don’t have anything nice to say, don’t say anything at all.

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