Last weekend, justice secretary Chris Grayling outlined government proposals to quadruple the current six-month sentence for people found guilty of internet trolling.
This announcement came just days after Chloe Madeley, the daughter of Judy Finnigan and Richard Madeley, told how internet trolls had made rape threats against her following Judy Finnigan's comments on the case of convicted rapist footballer, Ched Evans.
Pledging to increase the current jail term from 6 months to two years, Grayling explained: 'No one would permit such venom in person, so there should be no place for it on social media.'
The phenomenon of online or text abuse crime is clearly on the increase. However, despite the rise in prosecutions the police are often reluctant to get involved.
For many businesses (either for commercial or legal reasons), a criminal prosecution is simply not an option for comments posted online.
This article looks at the practical steps that businesses can take to protect themselves or their employees from cyberstalking, cyber harassment, cyber bullying and internet trolls.
Civil causes of action
Online or text abuse can take a number of forms. Frequently, businesses report that a disgruntled former employee or customer wages a campaign of abuse which might include:
- verbal abuse to individual employees (often customer service)
- damaging or offensive comments on websites, blogs or social media
- general online threats by email or text
In addition to the potential criminal actions (offences may fall under the Malicious Communications Act 1988, the Communications Act 2003, the Protection from Harassment Act 1997, the Public Order Act 1986 and the Racial and Religious Hatred Act 2006), there are a number of civil legal remedies available.
The principal causes of action include:
- breach of privacy / misuse of personal information and breach of confidence
- defamation / malicious falsehood
- economic torts: inducing breach of contract / causing loss by unlawful means
- data protection
One of the first hurdles to pass before bringing any of the above claims is identifying the actual defendant. As Mr Grayling commented at the weekend, internet trolls are 'cowards' and they typically post anonymously. However, there are legal tools available to seek to unmask the perpetrators.
Identifying the perpetrator
- a claimant can apply for a 'Norwich Pharmacal' order which forces an online service provider to reveal whatever information they have on the identity of the poster. Section 5 of the Defamation Act 2013 (and its related regulations) also provides a mechanism for requesting that information directly (although it is subject to the consent of the poster)
- if you can't identify the individual defendant but you know their facebook or twitter account, you may still be able to issue and serve proceedings against persons unknown via a facebook or twitter account
- finally, if you draw a blank in identifying or claiming against an individual defendant, it may be possible to establish liability (in defamation at least) on behalf of the online service provider or ISP who has published the post. There are defences available to ISPs which have been strengthened since the Defamation Act 2013. However, in principle where an ISP (and recent case law suggests Google may be deemed a publisher once notified) is on notice of a potentially offending publication but continues to publish and does not comply with statutory notice procedure, it may be liable in damages.
Often, a campaign of online abuse will contain grounds to bring claims under multiple heads such as harassment, defamation, malicious falsehood and data protection.
Bear in mind that some claims are easier than others for corporate claimants to bring. It is now more difficult for a company to bring a claim in defamation (following the requirement to prove serious financial harm under the new Defamation Act). If an offending post is dissuading customers from performing contractual obligations, consider bringing a claim for inducing breach of contract or causing loss by unlawful means. Similarly, where privacy or harassment claims can be more difficult for corporate claimants, a claim in copyright or data protection may be the better option.
A pre-trial injunction is most likely to be awarded in:
- Copyright & Data Protection
It is more difficult to obtain an injunction in defamation or malicious falsehood but these are the best claims to bring if an apology is required.
Damages are available in all claims but for harassment, privacy and data protection these are likely to be minimal. If substantial damages are sought, the claim should be framed in contract or defamation.
Practical tips for businesses
One of the key questions companies need to consider is whether a legal response is the best way forward at all.
Some online abuse - whilst offensive - has a limited readership and does little harm to a corporate reputation. Businesses need to be aware that an issue could be magnified by unsuccessfully seeking to minimise it.
Many ISPs are based in other jurisdictions (such as the US) where it is very difficult to succeed with defamation/privacy actions because the principle of freedom of speech is enshrined in the constitution. In such cases:
- for claims involving potential misuse of confidential information, consider enforcing intellectual property rights (e.g. copyright in photographs) instead of privacy.
As set out above, there are numerous legal tools available to deal with trolling and online abuse and it is important to carefully consider all potential causes of action and select and implement the most appropriate course of action in each case
Any questions you may have in relation to this article or the issues raised should be directed to Harriet Campbell at Shoosmiths: [email protected]
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.