If you work in PR in the field of reputation management and your client is being abused on social media, the following gives guidance on where the legal line is crossed and which grey areas still exist when publishing on social media sites such as Twitter:
Only in the world of the social network would the words ‘tweet’ and ‘troll’ be used so frequently in tandem. There was of course a time when a troll was synonymous with a hideous purple-haired doll that first came to prominence in the 1960s. Sadly it is far more sinister these days, referring to those who use the internet to abuse, insult and threaten others. Perhaps most appalling of all was the suicide of 14-year-old Hannah Smith after she suffered bullying on the Ask.fm website. But there are many other instances of social media users hitting the headlines after employing abusive, threatening or discriminatory language.
2. Criminal offences
While offensive behaviour occurs all the time on social media, and particularly Twitter given the ability to communicate with other users without any personal connection, the law recognises that there are certain types of behaviour that should be subject to criminal sanction. Specifically, communications that are deemed to be indecent or grossly offensive are likely to fall foul of the law, as would those that are credible threats or amount to harassment.
3. A Tyne-Wear tweet
The Crown Prosecution Service recognises the immense number of communications posted via social media and therefore imposes very high thresholds before criminal charges are brought. Illustrative, is the case of a presumed Sunderland fan, Mitchell Chapman, who posted the following tweet in the aftermath of the MH17 air disaster in which two Newcastle fans were killed:
"Such a tragedy that there was [sic] only 2 Newcastle fans on the plane and not 100. RIP fellas."
Nobody would argue that the tweet was in seriously bad taste. However, although Chapman was initially charged by the police, the CPS discontinued the proceedings on the basis that, whilst the post was "deeply upsetting to the families", it was "simply offensive" rather than "grossly offensive".
4. To prosecute or not to prosecute…
Despite the CPS publishing guidelines on social media prosecutions in June 2013, the dividing line between criminal and non-criminal is not always clear, as demonstrated by the MH17 tweet case. On one plausible reading of the tweet as being wholly sarcastic (including the words "RIP fellas") it seems difficult to separate the tone from that adopted by Facebook troll Jake Newsome who posted on his Facebook page after the stabbing of Leeds teacher Ann Maguire: "Personally im glad that teacher got stabbed up, feel sorry for the kid… he shoulda pissed on her too." Newsome was jailed for six weeks, unlike Chapman.
5. I was only joking m'lord…
If you want to take action on behalf of your client, the decision to prosecute is ultimately one for the CPS, which must assess tweets or posts on an objective basis, while also deciding whether a prosecution is in the public interest (and worth the consequent investment of public resources). However, as the Chapman and Newsome cases show, an objective interpretation still requires a degree of subjective analysis.
Importantly, it is not sufficient for a user to claim that their posts were just a joke. Peter Nunn found this out to his cost recently, after being found guilty of sending indecent, obscene or menacing messages to Labour MP Stella Creasy. After the MP had backed a campaign to include an image of Jane Austen on a new £10 note, Nunn retweeted a message that threatened to rape the MP and tweeted messages that branded her a witch. His claim that he thought the messages were "really, really funny" was, unsurprisingly, dismissed by the judge.
On the flipside, the MH17 case shows that, even if a post causes great upset, it may not be sufficient grounds for a criminal prosecution.
6. Twitter's role
Twitter and other social media websites have come under significant pressure to regulate their forums more in the wake of the behaviour of some users. Although Twitter introduced a "report abuse" function in August last year, its operation has been criticised for being slow and often ineffective. Bear in mind if you are working for a client, that Twitter refuses to engage with anyone but the person affected by the abuse or their authorised representative. Given the understandable high thresholds for criminal prosecution and the expense of legal action in general, it is arguable that the websites should be doing more to regulate and prevent this type of behaviour, and thereby protect their users.
7. Freedom of expression
The high thresholds that apply to criminal offences in the social media context are also explained by the right to freedom of expression that exists in English law (pursuant to the European Convention on Human Rights). Freedom of expression does not distinguish between inoffensive and offensive information.
Clearly though, given the legal framework, regular social media users need to be aware of the law and the risks of posting ill-advised tweets or messages. The best advice is not to post if in doubt and you should advise your clients of this. One need only recall the coverage of individuals who have been jailed for hoax bomb threats to realise that what might seem like a joke at the time can have severe consequences.
8. The need for a thick skin
It is a sad fact that those individuals with a significant public profile will more than likely have to deal with some form of online abuse during their lives. To some extent, therefore, advisers may at times be required to explain to their clients that the best policy will be to ignore the post or indeed delete their account if they find matters too distressing, which is hardly a satisfactory outcome.
Conversely, they should be aware that they do not have to stand for everything that is thrown at them, particularly where the posts are threatening or grossly offensive. Website and cloud operators need to become ever more vigilant and proactive, standing alongside established remedies. Equally, the law will need to adapt to technological advances, which, in the past, it has not always done with great distinction but at which it is now showing itself to be far more adept.
Tom Rudkin is a solicitor at Farrer & Co, specialising in media and reputation management