Articles & Publications

Free Speech Online

By Christina Michalos QC & Felicity McMahon

4 Jun 2014


One of the sessions at the 5RB Conference on 30 September 2014 will be on “Internet and Social media: pitfalls of publishing, dealing with offending online publications, trolling.” 5RB‘s Christina Michalos and Felicity McMahon discuss free speech online.

Qn: An internet troll was jailed  for eight weeks for posting offensive messages on Twitter about stabbed teacher Ann Maguire, what  is a troll?

Christina: An internet troll is someone who deliberately creates arguments, drama and stirs up hatred on the web by posting provocative and shocking messages – usually also taking advantage of online anonymity. Obviously, trolls take their name from the grotesque creatures of Nordic fairy tales – found living under bridges and causing trouble for Billy Goats Gruff and other information super-highway users.

Felicity: A troll is someone who posts shocking, offensive or otherwise provocative material online in order to get a rise out of other users or readers of the webpage or social media platform in question. Sometimes commentators will use the term more widely to refer to anyone who posts offensive or harassing material online or via an online medium such as email.

Qn: what do you make of the reports of the case? And the sentence?

Christina: It’s rarely wise to make definitive pronouncements without personally have seen all of the evidence in a particular case. It seems from what I’ve read that it was the racially and religiously aggravated offences that the Court was focussed on. The tweet concerning the death of Ann MacGuire, whilst both offensive and extremely insensitive, did not appear to me, on its own, to warrant prosecution under the DPP social media prosecution guidelines.

Neil: The defendant, Robert Riley was convicted of offences under the Communications Act 2003. He was sentenced to 8 weeks immediate custody. Subject to any mitigation it appears that the starting point in this case was 12 weeks immediate imprisonment. In my view, this is a harsh sentence but I have not heard of any appeal in the pipeline. It was reported that among the offending tweets the defendant had posted, others included racist and religiously aggravated tweets as well as naming the young boy arrested for Ann Maguire’s murder. Clearly the court took a dim view of Mr Riley and his history of using social media. Looking at the Magistrates’ Court Sentencing Guidelines it seems as if the court took the view that this was a case which fell into the most serious category with a starting point of 12 weeks custody and a range between a high level community order to 18 weeks custody. Personally, I find it difficult that the Court found it had no option but to impose an immediate prison term, as opposed to a suspended term of imprisonment. This might be one of those unusual cases, like the London Riots, where the sentence has been dictated be public outrage, rather than ordinary sentencing guidelines.

Qn: What happens if the CPS does not want to prosecute and the individual victim does?

Neil: It is common misconception that only Government agencies can bring a prosecution against an individual or organisation. S6 of the Prosecution of Offences Act 1986, gives those who have been the victims of crime, whether a company or person, the right to initiate a private prosecution for a whole range of offences, including malicious, offensive and false communications and harassment. In these time of austerity, victims of crime may feel that traditional methods of redress are either not available to them or if civil proceedings were to be commenced, those proceedings would be slow and costly. An individual might rightly feel that their complaint is not given the priority it deserves by the CPS and if that is the case, private prosecutions become a very important part to enabling individuals to act. Private prosecution allows a victim to retain control of the proceedings and to actively pursue a conviction against the accused. Sometimes, life-changing events occur which must be resolved, and a private prosecution is one way of doing this.

Running along-side a conviction and sentence for harassment for example, ancillary orders can be sought to prevent similar future behaviour in the form of a restraint order, and even where the defendant has been acquitted.

Qn: What civil remedies can be used?

Christina:  This depends upon the nature of the underlying tweets or messages. If the messages amount to harassment or defamation, then damages and an injunction could be obtained.

Felicity: If there are a number of posts or messages such that they amount to a course of conduct, the Protection from Harassment Act 1997 allows the court to grant an injunction to prevent particular harassing behaviour, which if breached constitutes a criminal offence. Damages may also be available, both for anxiety, and for any financial loss which resulted from the harassment. If the material posted contains private information (for example details of someone’s sex life, relationships or health) then an action may be brought for misuse of private information  – this is the cause of action which Tulisa Contostavalos used to obtain an injunction when video footage of her engaging in sexual activity was posted on the internet. Both privacy and defamation claims can lead to damages and/or an injunction. When awarding damages the court may take into account the capacity for online posts to “go viral”, in the case of Cairns v Modi the court awarded (and the Court of Appeal upheld) and award of £90,000 for a Tweet which accused the claimant of match-fixing, even though the defendant only had 65 Twitter followers. Under the new Defamation Act 2013 the court also has a power to order that an operator of a website who is not a party to a claim (e.g. where the claim has been brought against the individual who authored the post) remove a defamatory post; this is a new power which may prove useful where a post goes viral.

Qn: Is there a danger that the internet will become too tame or bloggers and tweeters cowed?

Christina: The danger is that freedom of expression will be honoured in name only and become illusory in practice due to self-censorship in fear of prosecution. The price of free speech is that we sometimes have to put up with views that we find offensive. Offensive comment isn’t enough to warrant prosecution, shocking comment isn’t enough and distasteful comment isn’t enough. It was over-zealous prosecutions that lead to the DPP social media guidelines and in my view, it is important that prosecuting authorities adhere to those guidelines closely. Misapplication of s.127 of the Communications Act 2003 or  s.1 Malicious Communications Act 1988 has the potential to have a serious chilling effect on free speech . In Chambers v DPP (where Paul Chambers conviction for tweeting a joke about blowing up an airport was overturned on appeal)  Lord Judge emphasised the importance of  freedom of expression –  quoting  Edgar in King Lear –  that we should be free to speak what we feel, not what we ought to say.

Felicity If the law, particularly the criminal law, is imposed over-zealously then there is a risk that free speech may suffer. It is not only the prosecutions which actually take place, but the perception  that can have a “chilling effect” on what people feel able to say online. Recent reports that police visited a blogger who had posted material “fact-checking” UKIP policies rightly caused a great deal of concern. No action was taken, and the police force has since said it will review its approach; in fact that incident appears to be less about law and more about policy. Freedom of speech has always been a fundamental freedom in the UK and one for which both law and policy should have high regard. In civil cases there is always a balance to be struck by the court between the rights of individuals under Article 8 ECHR (right to a private life and reputation) and Article 10 ECHR (right to freedom of expression), which the court undertakes on a case by case basis following well-established principles. In practical terms, the potential cost of defending an action may have an impact, this is a long-expressed concern, and there have been changes made to both substantive law and procedural rules in order to ensure that cases progress expeditiously and without excessive costs being incurred. The removal of a presumptive right to trial by jury in defamation cases will also likely allow many defamation cases to be resolved more quickly.

Neil: I do not think the internet or we as a society have reached this stage, yet. However, it is concerning that over the last few years numerous people have been prosecuted for various offences relating to things said on social media sites. These people are probably unaware they have even committed an offence or are potentially in breach of the law. The case of Chambers mentioned by Christina is particularly interesting because it appears that a common-sense approach by the CPS was not adopted. The “trolling” offences that we have seen emerging more recently have to be viewed in context. No doubt had the same events taken place years before the comments or tweets were made, the view of the prosecuting authorities might be different. Would it be in the public interest to prosecute? The comments or tweets may be considered offensive but in context, not grossly so.

Qn: What is the position if the identity of the individual is unknown?

Christina:  The Court has power to order an innocent third party (such as the provider of a social media service) to disclose information about the identity of a wrong doer. This is known as  Norwich Pharmacal order after a case in which this procedure was first used. It is a mistake for internet users to think that they are totally anonymous as computer IP addresses and email address used for registration as well as other details can be obtained to locate individuals. Section 5 of the Defamation Act 2013 (dealing with operators of website) and the regulations made under it provides a system of giving notice to websites

Felicity: If the individual simply cannot be identified, in some cases it may be possible to bring an action against the operator of the website or another entity which has control over the material. However, there are a number of defences which protect internet service providers and hosts beyond those available to all: they may well not be considered “publishers” of the material at all until they are notified of it, and there are internet-specific defences available under the E-Commerce Regulations 2002. Using the internal complaints mechanism of the website can yield results – most have terms of use which offensive or harassing behaviour will likely violate. If the material constitutes personal data as defined by the Data Protection Act 1998, the individual in question may also be able to request its removal in certain circumstances. The recent judgment by the Court of Justice of the European Union in the Google Spain case made clear that even US-based search engines may be “data controllers” for this purpose if they also have operations in Europe. However, this does not constitute a right to censor online material at will, and the balancing exercise will still need to be carried out.

Neil: If a criminal investigation is underway the Crown has a number of ways in pursuing disclosure of documents or information depending on what is being investigated. The Serious Organised Crime and Police Act (SOCPA) and Regulation of Investigatory Powers Act 2000 (RIPA) contain various avenues of obtaining information in very serious criminal cases. However, the most common and well known power particularly against media organisations is the use of the production order. A production order is an order which can be served on any person or institution, for example, Facebook, Twitter or Google, requiring the production of, or allowing access to material, including the disclosure of account holders whose identities are unknown or under a pseudonym. If the applications sought are applied for correctly, these powers can be very effective.

Further information on the 5RB Conference can be found here