How OFCOM can stop the abusive trolls?

In recent weeks there has been a lot of discussion about how to deal with trolls making repeated threats of violence or rape via social media. In particular, the stream of abuse targeted at Caroline Craido-Perez and Stella Creasy MP on Twitter following the announcement that Jane Austen was to be the next person to be represented on the UK £10 note , thus being the only woman depicted on any bank note other than the Queen, has significantly raised this issue.

Most of the discussion has concentrated upon use of the criminal law to stop trolls, but there are problems with that approach. For example, the 32 year old man arrested in Bristol on 7 August 2013 in connection with tweets to Caroline Craido-Perez and Stella Creasy is reported to have been arrested under the Protection from Harassment Act 1997. This deals with a course of conduct against another person. What if the troll only sends one or two harassing communications to each target, but sends hundreds of communications?

In this post I suggest that the regulatory tools exist to tackle trolls, were the problem of trolling considered to be sufficiently serious for regulatory action.

The one body the has so far not entered the debate or been questioned about its response to trolling is Ofcom, the regulator for electronic communications networks and services in the UK. This is a surprise, given that one of the sections of the Communications Act 2003, for which Ofcom is the proper enforcement body, seems at first glance to be an anti-trolling provision. The section concerned is section 128 of the Communications Act 2003, the first section under the cross-heading ‘Persistent misuse of networks and services ‘. The provision includes:

(5)  For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

(a)  the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

(b)  he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6)  For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

(a)  a pattern of behaviour or practice; or

(b)  recklessness as to whether persons suffer annoyance, inconvenience or anxiety.

Given that these statutory clarifications on what is meant by ‘misuse’ and ‘persistent misuse’ in the 2003 Act pre-date the modern social media concept of trolling, they are not a bad description of what trolling is. Section 128 describes a neat regulatory set of powers for Ofcom to give notice to a persistent misuser to stop misusing, with additional sections setting out how the notice can be enforced. This includes Ofcom having the powers to impose penalties of up to £5,000 as well as seeking a court injunction against a person ignoring a notice (so breach of that injunction would be a contempt of court, with penalties including a fine of up to £2,500 and imprisonment for up to 2 years – section 14 Contempt of Court Act 1981).

However, how can Ofcom serve a notice on a troll (who will typically be anonymous)? It would be perfectly possible for Ofcom to use its information gathering powers, rather than go to court to obtain a Norwich Pharmacal Order for each troll. These are set out at sections 135-146 of the Communications Act 2003, under the cross-heading ‘Information Provisions’. Of interest here is that Ofcom can seek information from parties in addition to communications providers. In particular, section 135(2)(f) allows Ofcom to request information from “a person not falling within the preceding paragraphs who appears to OFCOM to have information required by them for the purpose of carrying out their functions under this Chapter.”

There is no reason why this could not include Twitter UK Ltd, even though, as Twitter UK Ltd was at pains to point out in a statement to the Leveson Inquiry, it has technically nothing to do with the Twitter service. Twitter UK’s registered office is 100 New Bridge Street, London EC4V 6JA, the same address as the international law firm Baker & McKenzie. If Baker & McKenzie are Twitter UK’s solicitors, I am sure they could advise Twitter that Ofcom’s information gathering powers are broad and do come with some teeth, so that eventually Ofcom would be able to get the information it required. Even so, given the current interest in addressing trolling via Twitter, it would be a further PR disaster for Twitter UK to be seen to avoid information requests from Ofcom on the grounds that the Twitter services was nothing to do with it, the UK entity, but only a matter for the US Inc.

So, using section 135 information requests, Ofcom could obtain the IP address of trolls via Twitter and UK ISPs, and contact details for that IP address. With that information a section 128 persistent misuse notice could be served, and the troll told to behave or be cut off.

This route could also address the question of trolling via multiple accounts and/or different social media platforms. The notice is not limited to one account on one communications platform; the misuse must be by one person. Section 128(7) states:

For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

(a)  that the misuse was in relation to a network on some occasions and in relation to a service on others;

(b)  that different networks or services were involved on different occasions; and

(c)  that the persons who were or were likely to suffer annoyance inconvenience or anxiety were different on different occasions.

It would therefore catch a person trolling using multiple accounts on Twitter, Facebook etc. to different targets.

However, there is a potential gap in this approach. What if the target of the trolling is, as recent examples have shown, on the receiving end of an avalanche of abuse or is being flamed? The avalanche could be the result of a mass of single communications from individual persons, each of whom may not be persistently misusing.

The radical answer, which may not stand up to regulatory scrutiny, is to suggest that it is possible to serve the persistent misuse notice not on the individual trolls, but on the person providing the platform upon which the trolling occurs. There is no precedent for this extended use of section 128, which to date has been used by Ofcom to shut down the misuse of automatic calling systems generating abandoned or silent calls (eg section 128 notice on HomeServe plc). The Ofcom argument would have to be that the notice recipient, by providing a platform with no effect monitoring or abuse notice and protection systems to protect users from unnecessarily to suffer annoyance, inconvenience or anxiety, is the person upon whom a section 128 notice can be served. The Ofcom notice could demand that a proper anti-trolling and/or abuse notice system be put in place, as in section 129 it states:

(2)  OFCOM may give the notified misuser an enforcement notification if they are satisfied—

(a)  that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and

(b)  that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—

(i)  securing that his misuse is brought to an end and is not repeated; and

(ii)  remedying the consequences of the notified misuse.

In practice, however, I don’t expect Ofcom to go anywhere near the trolling controversy. Regulation of networks and services is carried out by that part of Ofcom that can trace its roots back to Oftel. From the earliest days of telecommunications regulation, telecommunications (now electronic communications) regulators have sought to distance themselves from any requirement to regulate content.

The freephone and local rate calls battle – who’s lost?

2G and 3G masts on a mobile base station

The war between fixed network operators and mobile network operators is a central feature of most mature electronic communications markets, where few operators provide both fixed and mobile networks and services. The UK is no exception.

In the UK the most recent battle in this ongoing war has been in the freephone and local rate calls markets, known by the number prefixes used for the relevant number ranges of 080 (freephone) and 0845/0870 (local call or reduced call rate). In their bid to win customers from each other and reduce their own loss of customers, ie to reduce their churn rate, mobile network operators (MNOs) or their wholesale customers, the mobile virtual network operators (MVNOs) have developed a bewildering array of tariffs. These usually involve a range of bundles for minutes of calls, numbers of text messages and data rates for mobile broadband. A key part of these bundle offerings is the careful selection of which types of calls are included within the minutes permitted in any bundle. In most cases, the MNOs or MVNOs exclude calls to 080 or 0845/0870 numbers (the 08 Calls), perhaps because these calls are almost universally made to fixed network operators’ (FNOs) customers.

As a consequence, MNO and MVNO customers rarely know how much they are being charged to make these 08 Calls (see OFCOM’s Simplifying Non-Geographic Numbers consultation paper of 16 December 2010). The tariffs are not key differentiators or even factors customers consider when selecting an MNO or MVNO. As a result, there is little or no competitive pressure on MNOs and MVNOs for the 08 Calls. It is therefore not surprising that the tariffs charged for these calls can far exceed the network costs to the MNOs of setting up the calls (originating them) and handing them over to the FNOs to route to the called party (or to terminate them). FNOs, on the other hand, as terminating operators, have a monopoly on the market for terminating calls on their networks. Competition law can therefore ensure that the charges the FNOs make to MNOs to terminate the 08 Calls are not abusive, but are fair and non-discriminatory. Consequently, FNOs have long been aggrieved that the majority of revenue generated by for 08 Calls has been retained by the MNOs (and MVNOs).

British Telecommunications plc (BT) was the first to try to change their charges for terminating 080 Calls to get an increased share of this 080 Calls revenue. It was obvious that any change would be opposed by the MNOs. So when BT sought to change their terminating charges by use of Network Charge Change Notices (NCCN), these were disputed by the MNOs.  When these disputes could not be resolved, they were referred by the MNOs to the Office of Communications (OFCOM) for resolution using its statutory dispute resolution powers (see sections 185 to 191 of the Communications Act 2003).

OFCOM issued two determinations in respect of disputes between BT and various MNOs regarding BT’s termination charges and its relevant NCCNs:

• the first dealing with 080 calls on 5 February 2010 – the MNOs concerned being T-Mobile UK Limited (T-Mobile), Orange Personal Communications Services Limited (Orange), Vodafone Limited (Vodafone) and Telefónica O2 UK Limited (O2); and
• the second dealing with 0845 and 0870 calls on 10 August 2010 – the MNOs concerned being Vodafone, T-Mobile, Hutchison 3G UK Limited (H3G), O2, Orange and Everything Everywhere Limited (EE). EE is a 50%-50% joint venture between France Telecom and Deutsche Telekom, which was formed from the combination of their UK subsidiaries Orange and T-Mobile, who operated under the name of EE as a single entity from 1 July 2010.

In each determination OFCOM set out a number of near-identical principles, which it used to assess whether BT’s proposed termination charges were “fair and reasonable”. OFCOM considered that BT’s new charges were not fair and reasonable, as in each determination certain of these principles were not met.  BT was therefore not entitled to introduce the proposed tariffs.

BT appealed OFCOM’s determinations on both the 080 and the 0845/0870 disputes. BT had no fundamental dispute with the principles used by OFCOM to determine whether the proposed tariffs were fair and reasonable; it merely believed that OFCOM had misapplied its own principles.

EE also appealed OFCOM’s 0845/0870 determination.  It’s primary appeal ground was that OFCOM’s principles had failed to address an even more fundamental principle, that BT’s proposed tariffs should be cost-orientated or “cost reflective”. As they were not, they were unlawful. EE’s secondary position was that if OFCOM’s principles for determining the fairness and reasonableness of BT’s tariffs were upheld on appeal, then they had been correctly applied and OFCOM’s conclusions ought also to be upheld.

The Competition Appeal Tribunal (CAT) has recently published its decision in the joined appeals ([2011] CAT 24, 1 August 2011). The CAT had to decide if BT was entitled to impose its proposed tariffs. To do so, the CAT:

• reviewed OFCOM’s approach to resolve the tariff disputes, including OFCOM’s setting of its three cumulative principles according to which the fairness and reasonableness of BT’s tariffs were to be judged and their application to the facts;
• considered whether OFCOM correctly complied with its dispute resolution powers and the process set out in the Communications Act 2003; and
• considered what criteria the CAT must itself apply when hearing appeals of OFCOM’s determinations of disputes.

In a lengthy but well-structured judgement, the CAT had no argument with the principles adopted by OFCOM to resolve the 080 Calls’ tariffs disputes.  It found that Principle 1 (that MNOs should not be denied the opportunity in any tariff structure to recover their efficient originating costs for the calls) was satisfied. The CAT also considered that Principle 3 (that the proposed tariff structure was reasonably practical to implement) was also satisfied.

This left Principle 2, which was made up of several parts.  Principle 2(i) concerned whether the proposed tariffs had benefits to consumers. Principle 2(ii) concerned whether the tariffs avoided material distortion of competition. The CAT did not see how these were cumulative principles so that if either one failed, a new tariff could not take effect. Most importantly for future developments in the electronic communications market and its regulation, the CAT considered that OFCOM had failed to take into account a third factor: the contractual rights of BT.

The CAT believed that Principle 2(ii) concerning distortion of competition was satisfied; the imposition of a “stringent test for the introduction of price changes” by BT itself had the effect of distorting competition by placing a restraint on BT and other operators who wishes to impose similar laddered pricing structures. On Principle 2(i), the CAT did not say that it found the proposed tariffs to be beneficial to consumers; it considered that the outcome was inconclusive. However, it did criticise OFCOM for failing to take into account BT’s relevant market share in the call-hosting market, which, being limited, would dilute the impact of BT’s proposed tariffs. The CAT did not consider that the correct test was that the new tariffs had to be shown to benefit consumers, as this placed undue importance upon OFCOM’s own policy preference over Principle 2(i) and BT’s contractual rights. Instead, this policy preference could only have overridden the other factors OFCOM considered if it could have been clearly and distinctly demonstrated that the new tariffs would act as a material disbenefit to consumers.  An inconclusive finding by OFCOM was not enough to override BT’s contractual rights.

The CAT has therefore recognised the importance of freedom of contract in the promotion of competition. As an aside, this is exactly the argument put forward by Cable & Wireless, as an intervener and FNO in support of BT (see the closing arguments of Daniel Beard QC).

So who lost? This is a difficult question, but on one level the losers may be mobile phone customers. Clearly the MNOs were making healthy profits on their 080 Calls, using this additional revenue to cross-subsidise their bundle packages. These bundles may now reflect more their underlying costs, or in EE’s words, be “cost-reflective”, as more of the 080 Calls revenue is shared with FNOs.

As an aside, it became clear during the dispute from OFCOM’s draft determinations that a retail price of 12.5ppm was a rate that permitted MNOs on average to recover their efficient costs of originating calls to FNOs, both for 080 Calls and to geographic numbers. This rate is therefore is a useful benchmark with which consumers can check the tariffs being offered to them by MNOs and MVNOs.

[Disclaimer: I led the Charles Russell LLP team that acted for Cable & Wireless in the CAT. All information in this post is, as far as I am aware, available in the public domain. Any views expressed here are strictly my own and not those of Charles Russell LLP or Cable & Wireless.]

Standards in the media

After years of tenacious reporting by The Guardian, the scandal of telephone hacking and interception of communications by The News of the World has finally reached a tipping point. Yesterday the Prime Minister, in response to a question from the Leader of the Opposition in Prime Minister’s Questions, promised at least one public inquiry into the whole affair. Many commentators have already re-quoted David Mellor’s statement that the press were drinking in the last chance saloon (widely reported to be in 1989, when as Secretary of State for the Department of National Heritage, but no Hansard reference found). So what will happen?

It is more than possible that there will be a call for statutory regulation of newspapers. It is obvious that the Press Complaints Commission has been unable to act as a rigorous regulator. Self-regulation may no longer be tenable in print media.

How does this compare with broadcast media? Radio and television are subject to statutory control under the Communications Act 2003 and the Broadcasting Act 1996. Regulation on standards in programmes, sponsorship, product placement in television programmes, fairness and privacy are consequently set out in the Ofcom Broadcasting Code. In particular, there are separate sections of the Code that deal with fairness and privacy. There is a degree of precedent in the way Ofcom considers complaints about breaches of fairness and privacy. Ofcom has published guidance on procedures for dealing with fairness and privacy complaints, with all adjudications published in the Broadcasting Bulletin. Financial penalties can be imposed to a theoretical limit of 5% of relevant turnover (or “qualifying revenue”, in the terminology of the Broadcasting Act 1990). Fines have reached into the millions, for example £3,000,000 against LWT (Holdings) Limited in connection with breaches in connection with Ant & Dec’s Saturday Night Takeaway in 2008.

I suggest, therefore, that a statutory scheme already exists that could easily be extended to cover print media. All that is required is the political will.