The news over the past year has been dominated by stories about high profile figures such as Caroline Criado-Perez, Stella Creasy, Mary Beard, and Chloe Madeley being trolled, and in turn, individuals such as Isabelle Sorley, John Nimmo, and Peter Nunn receiving custodial sentences due to their online behaviour. Overall, the picture has generally been of a bleak situation growing ever worse, with few indications of how it is being remedied. Cue today’s Mail on Sunday, in which Secretary of State for Justice, Chris Grayling announced a plan to quadruple the potential jail-time for trolls from six months (under the Malicious Communications Act 1988) to two years, and to give police more time to investigate trolling cases.
As I wrote only a fortnight ago, prosecuting trolls is a particularly difficult exercise for numerous reasons, but to briefly summarise again: Firstly, how does Grayling define trolling anyway? This term is being used to cover everything from disagreement through to a campaign of death threats, and stopping the latter should not result in infringing on the former. Secondly, we need proof. Just because an offensive message came from a certain device doesn’t mean that the owner of that device sent it. Thirdly, there are jurisdiction issues. An offensive message sent from the UK, through a site with servers located in the US, to a target in China, can potentially involve the legal jurisdictions of all three countries. Fourthly, last year the Director for Public Prosecutions published legal guidance on cases involving communications sent via social media that have effectively made the prosecution of offensive online behaviour quite difficult. The guidelines state 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.
And fifthly, language is simply not clear cut. Imagine if I tweet someone with the words, “I wouldn’t go into work tomorrow if I were you.” Is this a threat? Advice? A helpful warning? A joke? Take the apparently clear-cut case of “I’ll kill you when I see you”. This could turn out to be one friend responding to the prank of another. Context is crucial when attempting to divine intent, but the online environment, which lacks facial expressions, tone of voice, and gestures, is short on precisely this information. Working out intent is educated guess-work, and the less context we have, the less educated our guess.
When we take all these factors into account, it becomes easy to see why the rate of attrition – the number of cases reported to the police, out of which the police then take to the CPS, out of which the CPS then successfully prosecute – can be enormous.
To return to the original point, however, in light of the guidelines that make it harder to prosecute for trolling, why is Grayling now seemingly going in the opposite direction by introducing stiffer sentences and more time for police to investigate? This is a difficult question to answer. It may be that after such a continual stream of bad news about trolling, Grayling is seeking to show that something is being done. It may be an effort to counter the perception that if even an MP such as Stella Creasy finds it difficult to bring her online attackers to justice then this leaves little hope for the ordinary individual. Or there may be other reasons beyond.
From the perspective of a linguist working in this area, there is much more that could be done, e.g. review all current “trolling” cases – convicted or not – and the legislation used to prosecute them, since this may shed light on shortcomings in the law; establish how cross-jurisdictional cases are handled; and create clear guidelines for ordinary online users on how to deal with and report online abuse.
By Dr Claire Hardaker (@DrClaireH)
Last updated: 15:15, 19 October 2014