Trolls, threats, the law and deterrence – Paul Bernal

26 10 2014

trollhunter600“Internet trolls face up to two years in jail under new laws” screamed the headline on the BBC’s website, after Chris Grayling decided to “take a stand against a baying cyber-mob”. It’s not the first time that so-called ‘trolls’ have been made the subject of a government ‘stand’ – and a media furore. This particular one arose after TV presenter Chloë Madeley suffered online abuse – that abuse itself triggered by the comments about rape made by her mother, Judy Finnigan, also a TV presenter, on Loose Women.

Twitter ‘trolls’ seem to be a big theme at the moment. Just a few weeks ago we had the tragic case of Brenda Leyland, who it appears committed suicide after being doorstepped by Sky News, accused of ‘trolling’ the parents of Madeleine McCann. A month ago, Peter Nunn was jailed for 18 weeks after a series of abusive tweets aimed at MP Stella Creasy. There are others – not forgetting the ongoing saga of GamerGate (one of my favourite posts on this is here), though that seems to be far bigger news in the US than it is here in the UK. The idea of a troll isn’t something new, and it doesn’t seem to be going away. Nothing’s very clear, though – and what I’ve set out below is very much my personal view.

What is a troll?

There’s still doubt about where the term comes from. It’s not clear that it refers to the kind of beast in the picture above – from the weirdly wonderful Norwegian film ‘Trollhunter’. A few years ago, I was certain it came from a totally different source – ‘trolling’, a kind of fishing where you trail a baited line behind your boat as you row, hoping that some fish comes along and bites it – but I understand now that even that’s in doubt. Most people think of monsters – perhaps hiding under bridges, ready to be knocked off them by billy goats, or perhaps huge, stupid Tolkeinian hulks – but what they are on the internet seems very contentious. In the old days, again, trolls were often essentially harmless – teasing, annoying, trying to get a rise out of people. The kind of thing that I might do on twitter by writing a poem about UKIP, for example – but what happens now can be quite different. The level of nastiness can get seriously extreme – from simple abuse to graphic threats of rape and murder. The threats can be truly hideous – and, from my perspective at least, if you haven’t been a victim of this kind of thing, it’s not possible to really understand what it’s like. I’ve seen some of the tweets – but only a tiny fraction, and I know that what I’ve seen is far from the worst.

The law

The first thing to say is that Grayling’s announcement doesn’t actually seem to be anything new: the ‘quadrupling of sentences’ was brought in in March this year, as an amendment to the Malicious Communications Act 1988.  This is just one of a number of laws that could apply to some of the activities that are described as ‘trolling’. Section 127 of the Communications Act 2003 is another, which includes the provision that a person is guilty of an offence if he: “sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.  The infamous ‘Twitter Joke Trial’ of Paul Chambers was under this Act. There have also been convictions for social media posting under the Public Order Act 1986 Section 4A, which makes it an offence to “…with intent to cause a person harassment, alarm or distress…  use[s] threatening, abusive or insulting words or behaviour, or disorderly behaviour, or …displays any writing, sign or other visible representation which is threatening, abusive or insulting,” Then there’s the Protection from Harassment Act 1997, and potentially Defamation Law too (though that’s civil rather than criminal law).  The law does apply to the internet, and plenty of so-called ‘trolls’ have been prosecuted – and indeed jailed.

What is a threat?

One of the most common reactions that I’ve seen when these issues come up is to say that ‘threats’ should be criminalised, but ‘offensive language’ should not. It’s quite right that freedom of speech should include the freedom to be offensive – if we only allow speech that we agree with, that’s not freedom of speech at all. The problem is that it’s not always possible to tell what is a threat and what is just an offensive opinion – or even a joke. If we think jokes are ‘OK’, then people who really are threatening and offensive will try to say that what they said was just a joke – Peter Nunn did so about his tweets to Stella Creasy. If we try to set rules about what is an opinion and what is a threat, we may find that those who want to threaten couch their language in a way that makes it possible to argue that it’s an opinion.

For example, tweeting to someone that you’re going to rape and murder them is clearly a threat, but tweeting to a celebrity who’s had naked pictures leaked onto the internet that ‘celebrities who take naked pictures of themselves deserve to be raped’ could, potentially, be argued to be an opinion, however offensive. And yet it would almost certainly actually be a threat. A little ‘cleverness’ with language can mask a hideous threat – a threat with every bit as nasty an effect on the person receiving it. It’s not just the words, it’s the context, it’s the intent. It’s whether it’s part of a concerted campaign – or a spontaneous twitter storm.

One person’s troll is another person’s freedom fighter…

The other thing that’s often missed here is that many (perhaps most) so-called trolls wouldn’t consider themselves to be trolls. Indeed, quite the opposite. A quick glance at GamerGate shows that: many of those involved think they’re fighting for survival against forces of oppression. There’s the same story elsewhere: those involved in the so-called ‘trolling’ of the McCanns would (and do) say that they’re campaigning to expose a miscarriage of justice, to fight on behalf of a dead child. Whether someone’s a terrorist or a freedom fighter can depend on the perspective – and that means that laws presented in terms like those used by Grayling used are even less likely to have any kind of deterrent effect. If you don’t consider yourself a troll, why would a law against trolls have any impact?

Whether increasing sentences has any deterrent effect to start with is also deeply questionable. Do those ‘trolling’ even consider the possible sentence? Do they know that what they’re doing is against the law – even with the many laws enumerated above, and the series of convictions under them, many seem to think that the law doesn’t really apply on the internet. Many believe (falsely) that their ‘anonymity’ will protect them – despite the evidence that it won’t. It’s hard to see that sentences are likely to make any real difference at all to ‘trolling’.

There are no silver bullets…

The problem is, that there really isn’t a simple answer to the various things that are labelled ‘trolling’. A change in law won’t make the difference on its own. A change in technology won’t make a difference on its own – those who think that better enforcement by Twitter themselves will make everything OK are sadly far too optimistic. What’s more, any tools – legal or technological – can be used by the wrong people in the wrong way as well as by the right people in the right way. Put in a better abuse reporting system and the ‘trolls’ themselves will use it to report their erstwhile ‘victims’ for abuse. What used to be called ‘flame wars’ where two sides of an argument continually accuse the others of abuse still exist. Laws will be misused – the Twitter Joke Trial is just one example of the prosecutors really missing the point.

There is no simple ‘right’ answer. The various problems lumped together under the vague and misleading term ‘trolling’ are complex societal problems – so solving them is a complex process. Making the law work better is one tiny part – and that doesn’t mean just making it harsher. Indeed, my suspicion is that the kind of pronouncement that Chris Grayling made is likely to make things worse, not better: it doesn’t help understanding at all, and understanding is the most important thing. If we don’t know what we mean by the term ‘troll’, and we don’t understand why people do it, how can we solve – or at least reduce – the problems that arise?

Posturing – and obscuring

The thing is, I’m not convinced that the politicians necessarily even want to solve these problems. Internet trolls are very convenient villains – they’re scary, they’re hidden, they’re dangerous, they’re new, they’re nasty. It’s very easy for the fog of fear to be built up very quickly when internet trolling comes up as a subject. Judy Finnigan’s original (and in my view deeply offensive) remarks about Ched Evans’ rape conviction have been hidden under this troll-fog. Trolls make a nice soundbite, a nice headline – and they’re in some ways classical ‘folk devils’ upon which to focus anger and hate. Brenda Leyland’s death was a stark reminder of how serious this can get. A little more perspective, a little more intelligence and a little less posturing could really help here.

This post originally appeared on Paul Bernal’s Blog and is reproduced with permission and thanks


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26 10 2014
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Reblogged this on sdbast.

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