The Communications Act 2003 and twitter trolls

Who can honestly wholeheartedly say that they did not feel for Tom Daley following a diatribe of abuse, particularly from one person, on Twitter? In light of the recent ruling of Paul Chambers v DPP [2012] EWHC 2157, is it time to reflect upon the ethics of Twitter, and other social media networks, and the

Home ยป David Rosen ยป The Communications Act 2003 and twitter trolls

Who can honestly wholeheartedly say that they did not feel for Tom Daley following a diatribe of abuse, particularly from one person, on Twitter?

In light of the recent ruling of Paul Chambers v DPP [2012] EWHC 2157, is it time to reflect upon the ethics of Twitter, and other social media networks, and the Law applicable?

What you write, and what it means to others:

The words of Shakespeare’s Edgar, hold true: ‘We must obey. Speak what we feel, not what we ought to say’.

The play, King Lear, was about many issues, but in particular, respect between one another, falsity and words of flattery by Lear’s daughters to win greater parts of his Kingdom, and the difference between sincerity and insincerity: The meaning of words and how people understand them.

Of course, King Lear had at least the benefit of seeing and hearing his daughters declare their love to him. He loved his youngest Cordelia the most, but she was disgusted that she had to exclaim her love in open royal court, and refused to do so, declaring ‘Nothing’. He knew she too loved him just as much, but hubris got the better of him, and his descent took a turn from then on.

Edgar’s comments are poignant. Speak what we feel. If we repress our feelings and say what we think people want to hear and see, then what does that make us? Insincere?

On the other hand, if we speak how we feel, without responsibility for our actions, and without boundaries, then we potentially allow evil to overthrow the standards of an open and just society.

There is no need for me to explain here in this article what a ‘Tweet’, is. It is worth saying, however, that if King Lear (in a postulated anachronism, bear with me), may have thought differently of his daughters, had he received a tweet from each of them. What would have happened, if Cordelia had answered, ‘Nothing’ ๐Ÿ™‚ with a smiley emoticon? Or even with a ๐Ÿ˜‰ winking emoticon?

Poe’s Law, (named after Nathan Poe), is an axiom suggesting that it is difficult, if nigh on impossible, to know the intent of a writer, between sincerity and exaggerated parody, without a winking smiley, or other blatant display of humour. Without voice inflection, and body language, what you say on social media sites, can easily be misconstrued, misinterpreted and cause offence.

The Law: What you write, and what you intend to say:

It is a strange paradox that our current Law came into force before the popularity of social media websites.

The Communications Act 2003 was superseded by the social networking platform, Twitter, in 2006.

The Law was not obsolete, but has had to adapt to modern technology, and widespread and easily accessible media to a potentially huge public from a myriad of smartphones, tablets, and laptops.

What spouts from people’s mouths, and what potential vitriol people can write, has not changed throughout time. People remain offended, insulted, and embarrassed by defamatory comments.

Before the Internet, there was of course the ‘heavy breather’, abusive calls, etc…governed by the Post Office (Amendment) Act 1935, and a prohibition against the misuse of the telephone. These communications were not published and were usually made to a series of numbers to a series of individuals.

What we have now, is unprecedented. Does the Communications Act 2003 stand up to instant publishing to a wide audience on social media sites?

The beauty of our legal system is that case law can develop our understanding of the Law, and its application to a Statute.

Prior to Paul Chambers v DPP, we of course had the case of DPP v Collins [2006] 1WLR 2223 HL. That case focused amongst other things on the concept of ‘grossly offensive’ messages published. What, however, of other comments made? How are they categorised?

Chambers v DPP has provided some further incite into this immensely interesting subject.

The case in brief: There were a series of Tweets between 2 people in a relationship. One voiced frustration about not getting to Ireland because of the unexpected closure of an airport. He then went further and said he would resort to terrorism and threatened to blow up the airport of they did not re-open.

The comments were seen by the duty manager of that airport by chance. He reported it to his manager who did not take the comments made as a viable threat to report this to the Ministry of Defence, but did report it to the local Police who equally treated the comments as non-credible. The comments were passed down the line to the airport Police who also chose to do nothing other an to report the comments to the West Yorkshire Police, who decided to arrest Chambers on suspicion or involvement in a bomb hoax.

Various questions were put to the Lord Chief Justice following a conviction against a Crown Court decision by way of a ‘case stated’.

This ruling has given further guidance as to what is, and what is not acceptable.

Lord Judge stated: ‘Before concluding that a message is criminal on the basis that it represents a menace, its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent’.

Lord Judge interpreted the comments made as follows: …’the grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious “warning”.

Just think, applying Poe’ Law, how such comments could have been ready with an emoticon smiley wink? Or even a sad face, perhaps inferring frustration?

Actus Reus

The objective question to apply was not what ‘some’ people might think. Rather, it was to test the characteristic comments in the context of all things said and done by the alleged offender.

Mens Rea

This case has upheld the principles applied in that of DPP v Collins, so that the principle does not only to apply to more serious cases of grossly offensive messages.

It is the intention and therefore the state of mind of the offender to insult, which has to be established. It is sufficient if the alleged offender was aware of, or at least recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it.

In summary, speak freely, but consider carefully how you come across to others what you say. We have Laws in place to protect standards and ethics in Society. How much more so, is the protecting hand of the Courts to uphold such standards in impolite Society.

But wait, what have we learnt from this case as to how Twitter behaved? Did they intervene? Did they discover a moral compass to correct or gainsay what had been said? Perhaps in this instance, it was overlooked, or not considered worthy of moderating. After all,no other Authority who read the same, thought anything of it.

Compare this in contrast, to that of the Trollist remarks made openly to the great and good Tom Daley?

What was the reaction? Public outcry and a witch hunt to ‘get’ the perpetrator and launch a mob rule of demanding Twitter do something about such remarks. Public interest and a full campaign made them listen and co-operate.

Historically, this has not been the case with Twitter and they have not been forthcoming with information which leaves Authorities frustrated to prevent further trollism and more importantly, to prevent and prosecute people who act and write things on social media websites, contrary to the Law.

I therefore welcome a wake-up call from Twitter and others, to be more responsive and responsible to blatant nasty remarks.

In the words of Boris Johnson, ‘Tweet nicely’.

Think what you write before you write it. Try to think about whether anyone would be really offended by what you say. If you don’t literally mean what you’re writing, add some form of smiley, to show some light-heartedness in comments made. Obviously, adding an angry face to something nasty, really does not help you.

And remember…we must obey (the Law and standards of society), speak what we feel (within reason), not what we ought to say (self-explanatory).

David Rosen – Head of litigation and specialist in fraud law

Professor Rosen is a Solicitor-Advocate, Partner, and head of Litigation at Darlingtons Solicitors. He is a visiting associate Professor of Law at Brunel University, and a member of the Society of Legal Scholars.

David Rosen

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