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.
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