Investigating the online abuse sent to the McCanns

This morning’s case of abuse received by the McCanns has once again brought to the fore common questions that are asked with regards to offensive and abusive online behaviour such as trolling. Those questions include things like: Why aren’t (more) trolls prosecuted? What can the police do? Why aren’t they doing it? And should the law be stricter? I address those questions briefly below.

WHY AREN’T (MORE) TROLLS BEING PROSECUTED?

There are many answers to this, but I’ll just cover three. Firstly, we have issues of proof. Just because an offensive tweet or email or Facebook message came from a certain device doesn’t mean that the owner of that device sent it. Consider the average household with parents and children all using the same family computer, and suddenly that computer is implicated in the sending of offensive messages. Which of the occupants sent the messages? Could it have been a visiting school or parental friend? Is it even possible that the computer is harbouring malware that is remotely accessing and using accounts? Devices such as phones are little better, even if protected by a PIN or password. If someone else knows the log-in details and feels like maliciously getting the owner of the device into trouble, this would be an easy method, since once logged on, many of our apps don’t require further authentication to access social networks. In short, all of these possibilities can cast sufficient enough doubt that taking a case to court becomes a waste of time, since securing a criminal conviction requires the Prosecution to prove guilt beyond reasonable doubt.

Secondly, we have the issue of jurisdiction. An offensive message sent from the UK, through a site with servers located in the US, to a target in China, can involve the legal jurisdictions of all three countries, and the laws of different countries do not always agree. Consider, for instance, the US’s tenacious adherence to the First Amendment versus China’s quite different laws on free speech. The result is a potentially legislative nightmare.

And thirdly, last year the Director for Public Prosecutions published legal guidance on prosecuting cases involving communications sent via social media that have effectively made the prosecution of offensive online behaviour quite difficult. To qualify as worthy of prosecution, an offence must be credibly threatening; specifically targeted; in breach of a court order; or grossly offensive, indecent, obscene, or false. A lot of trolling falls into the category of offensive, however the guidelines state quite clearly that:

A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law. (§39, 2013)

Added to this, it’s relatively straightforward for suspects to evade legal consequences as long as: (1) they express genuine remorse; (2) swift action is taken to remove the content (this doesn’t even have to be by the suspect); (3) the communication was not intended for a wide audience or did not include the target; or (4) the content did not exceed what might be acceptable in an open, diverse society that upholds and respects freedom of expression (see §44).

WHAT CAN THE POLICE DO? AND WHY AREN’T THEY DOING IT?

Firstly, the police have to be alerted to the offence, and this can be problematic when dealing with apps and sites that auto-delete content (e.g. SnapChat, 4chan). Secondly, they also need to assure themselves that the threat is serious, not just a disagreement, an unpleasant opinion, a tasteless joke, and so on. Once they are assured that an offence has been committed, then thirdly, they need to track down the sender of the offensive messages and as we’ve seen above, that’s a lot harder than it sounds. Some sites harvest enormous amounts of data about users, but other sites like Twitter keep very little, so even if the police ask them for any information, this may be insufficient to track down an entire street, let alone an individual in a multi-occupancy household. Once the police finally have the individual in question, they still have to build a case that is strong enough to convince the Crown Prosecution Service to take it to court, and should it go to court, the Prosecution must then convince the jury that a criminal offence has been committed. Because of the sheer length of processes like these, there is a high degree of attrition – the target can’t convince the police, or the police can’t gather enough evidence, or the CPS can’t convince the jury, so ultimately, far fewer cases make it through to a successful conviction than are reported.

SHOULD THE LAW BE STRICTER?

Stricter is the wrong word. Better-suited is perhaps closer. The current Communications Act (2003) was written in the late 1990s, and enacted before the advent of either Facebook (2004) or Twitter (2007). In other words, §127, which deals with online offences, was written with the internet of the 1990s in mind before the advent of revenge porn, sexting, twitter accounts with twenty million followers, RIP trolling, and all the newer behaviours that have flourished in the online environment. We therefore find cases falling between the cracks. However, even if we were to create a new Digital Communications Act to deal explicitly with online antisocial behaviour, this would not be a straightforward process. The issue with censoring online abuse is that it falls precariously into limiting freedom of expression, a right which is unambiguously enshrined in the European Convention on Human Rights and Fundamental Freedoms:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (ECHR Article 10(1) 2014)

This protects not only “safe” or acceptable voices, but also iconoclastic, hostile, and even offensive ones – one of the mainstays of a free and democratic society. However, this said, the ECHR recognises that ‘freedom is not free’ and Article 10(2) makes explicit that when exercising our freedom of expression, we also have social duties and responsibilities, especially with regard to behaviour that is illegal or threatens the wellbeing of others:

The exercise of these freedoms [the freedom of expression], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. (ECHR Article 10(2) 2014)

In other words, that right to freedom of expression does not extend to infringing on the freedoms or safety of others.

By Dr Claire Hardaker (@DrClaireH)

Last updated: 12:00, 02 October 2014