The Supreme Court – FS Cairo (Nile Plaza) LLC v Lady Christine Brownlie
The issue of online abuse, particularly aimed at celebrities and high profile people, has come to the fore again this week. Former footballer and sports pundit, Stan Collymore, accused Twitter of not doing enough to protect its users having been subjected to racial abuse and threats of violence (seemingly because he gave his opinion that Luis Suarez dived to win a penalty for Liverpool), and Isabella Sorley and John Nimmo were jailed after they subjected Caroline Ciado-Perez, a high-profile feminist, and Stella Creasy, an MP, to online abuse after their campaign for a woman to appear on a Bank of England note.
This is a problem that will not go away. High profile figures see social media, particularly Twitter, as a means of engaging with the public in a way that was never possible before. Sadly, it often comes at a price. For example, the Olympic gymnast Beth Tweddle recently attempted to engage in what should have been a perfectly harmless Q&A exercise on Twitter but it quickly descended into her being on the receiving end of some seriously unpleasant abuse about her appearance.
Broadly speaking, individuals who are victims of abuse on Twitter often can seek recourse on the criminal and/or civil courts in one of the following ways:
The Malicious Communications Act 1988 and The Communications Act 2003
The Malicious Communications Act 1988 ("the MCA") makes it a criminal offence to send an electronic communication in any form that is indecent or grossly offensive, or which conveys a threat, or which is false, provided there is an intent to cause distress or anxiety to the recipient. Similarly, the Communications Act 2003 ("the CA") makes it a criminal offence to send messages by means of a public electronic communications network such as Twitter which are grossly offensive or of an indecent, obscene or menacing character. The main distinction between the MCA and the CA is that the scope of the MCA is much broader extending to letters and articles as opposed to solely electronic communications and unlike the CA it is not limited solely to public electronic communications networks. Convicted offenders under both the MCA and the CA can be jailed for up to 6 months and fined up to £5,000.
The MCA and CA provide a framework by which perpetrators of online abuse can be prosecuted however the threshold for the Crown Prosecution Service (CPS) to consider prosecution is high. Indeed, the CPS have even published prosecution guidelines in an attempt to limit the number of criminal cases being prosecuted for abusive tweets and publications on other social media sites due to the potential high volume of cases.
In the Criado-Perez/Creasy case Judge Howard Riddle said that it was "hard to imagine more extreme threats". Isabella Sorley was sentenced to 12 weeks in prison and John Nimno to 8 weeks in prison with each defendant ordered to pay £400 each to the two victims.
The Protection From Harassment Act 1997
The Protection From Harassment Act 1997 makes it a criminal and civil offence to pursue a course of conduct which causes alarm and distress, which includes the publication of words provided there have been at least two communications. Convicted offenders can be imprisoned for up to 6 months and fined, although this can be increased to up to 5 years and an unlimited fine if harassment causes the victim to fear violence. The victim can also bring a civil claim for damages and an injunction against the abuser, although in reality this is a remedy that is only used by individuals with the financial means to litigate, and only possible if the abuser can be identified, which is not always straightforward.
Libel and Privacy
It can also be libellous to communicate in social media, including to tweet or re-tweet, a false statement which harms someone’s reputation, as seen in the Lord McAlpine case. Likewise, if social media is used to publish private information about an individual, like the tweets involving Ryan Giggs, it could give rise to a potential privacy claim. In both instances, it is possible to seek an injunction and damages. However, in practice, many celebrities will not take action in the civil courts against individuals with limited followers (unlike Sally Bercow) or where the number of claims would be disproportionate (a problem faced by Ryan Giggs). It is also fair to say that public figures, especially those who use social media, often do not want to be seen flexing their muscles by taking action in the civil courts against members of public and they are therefore left hoping (often in vain) that the CPS prosecutes.
Certainly these remedies provide some redress for victims of internet abuse, however it is arguably not enough. An added complication is that before action can be taken victims must invariably first identify the perpetrator of such abuse, who more often than not will have tweeted under a false identity and/or using more than one account. In the Criado-Perez/Creasy case John Nimmo sent his tweets using six different Twitter accounts. Victims are able to seek assistance from the civil courts in revealing the identity of the user by making an application for a Norwich Pharmacal Order, an order against a third party for the disclosure of documents or information, but the cost of such action is likely to be prohibitive to the large majority of claimants.
The law is struggling to keep pace with changes to social media and, whilst new laws requiring social media sites to identify users engaging in online abuse are being considered, in the absence of such legislation Twitter is facing increasing pressure to take a pro-active stance in dealing with such abuse. There is clearly a balance to strike in terms of how Twitter should deal with abusive Twitter users. It would be practically impossible for Twitter to police or regulate all tweets or re-tweets, not least because of the volume and instant nature of the communications. Further, it would strike a blow to free speech and the very appeal of Twitter if users were being prevented from communicating freely. However, it seems clear that Twitter can and should do more to protect its users. Twitter has the right under its own policies to take a wide range of actions against those that breach "the Twitter Rules", which would include sending offensive or abusive tweets and harassing other Twitter users. Twitter can do little to stop the abuse at the time that it happens but thereafter could take swifter action against the abuser by removing content and disclosing that person’s details where it is reasonably necessary to comply with a law, regulation or legal request or to protect the safety of another user.
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