Online trolling is a criminal offence that can be prosecuted under the Malicious Communications Act 1983 (“MCA 1983”) and the Communications Act 2003.
Under the MCA 1983, a person commits the offence if they send to another person a letter, electronic communication or article of any description which is any of the following: indecent or grossly offensive; or a threat; or false and known or believed to be false by the sender. The mental element of the offence is the intention to cause distress or anxiety to the recipient or to any other person to whom he intends it be communicated.
Crown Prosecution Service (“CPS”) guidance is clear that, even where an offence is made out, prosecution of the alleged offender must be in the public interest. Where Article 10 of the European Convention on Human Rights (the right to freedom of expression and information) is engaged, the CPS must decide whether it has convincingly been established that a prosecution is necessary and proportionate. The CPS guidelines note that particular care must be taken where a criminal sanction is contemplated for the way in which a person has expressed themselves on social media.
Essentially, the position set out in the CPS guidelines is that it will rarely be in the public interest to bring a prosecution, given the potential impact on free speech. Advice to prosecutors is to pay particular regard to:
- the likelihood of re-offending; the spectrum ranges from a suspect making a one-off remark to a suspect engaged in a sustained campaign against a victim
- the suspect’s age or maturity; this may be highly relevant where a young or immature person has not fully appreciated what they wrote
- the circumstances of, and the harm caused to, the victim; including whether they were serving the public, whether this was part of a coordinated attack (“virtual mobbing”), whether they were targeted because they reported a separate criminal offence, whether they were contacted by a person convicted of a crime against them, their friends or family
- whether the suspect has expressed genuine remorse
- whether swift and effective action has been taken by the suspect or others, for example, service providers, to remove the communication in question or otherwise block access to it
- whether the communication was or was not intended for a wide audience, or whether that was an obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question
- whether the offence constitutes a hate crime
The above factors should be taken into account by prosecutors when they are considering whether prosecution is a necessary and proportionate restriction on the Article 10 rights of the suspect.
If you’re a victim of online trolling, what can you do?
- Report the malicious behaviour to the website the troll is using.
- Do not feed the trolls by responding
- Block the individual or troll account, and if you can, save copies of the offensive messages first.
- Review your privacy settings and apply further restrictions as necessary.
- Talk about it. Tell someone you trust about what has happened and how it is affecting you, or make a note of the same.
The decision to prosecute will turn on the facts and merits of each particular case and B P Collins’ criminal team would be happy to take your call and advise on the best way forward based on your own unique circumstances.