A troll is defined in the Urban Dictionary as “one who posts a deliberately provocative message to a newsgroup or message board with the intention of causing maximum disruption and argument”. The etymology seems to be disputed. My preferred explanation is that the usage comes – via the Usenet group alt.folklore.urban – from fishing, where trolling is the practice of trailing a baited line behind a moving boat, as in “trolling for mackerel”.
Internet trolls, it might be said, troll for argument. If this is right, the association of internet provocateurs with the thick-skulled monsters of Nordic legend and Tolkienesque fantasy fiction is a happy accident. Perhaps the best known troll encounter in modern literature comes Tolkien’s The Hobbit, and ironically features the wizard Gandalf rescuing Thorin’s company of dwarves from three hungry trolls by provoking them to argument.
Internet forum and message board administrators may find online trolls to be every bit as troublesome as Thorin & co found Tom, Bert and Bill. Trolls annoy regular posters and drive new users away. A prolific troll can seriously disrupt even a relatively busy message board.
But what does all this have to do with the law? First, trolls’ postings can be unlawful, giving rise to civil and/or criminal liability for the troll. Second, in some circumstances forum and message board publishers might be liable in relation to such posts, in addition to the troll.
There are two different civil wrongs and a handful of criminal offences that I’ll look at here. The civil wrongs are defamation and malicious falsehood. The criminal offences fall under the general headings of harassment and malicious communications
A forum post may create liability in the law of defamatory if:
- readers understand that it refers to a particular individual or individuals;
- it is defamatory of that individual or those individuals; and
- the post isn’t demonstrably true, or fair comment, or protected by one of the other special defamation defences.
A defamatory meaning is one that is liable to a damage a person’s reputation in a non-trivial way. The English courts don’t have a single test for determining whether something is defamatory. Common formulations of the nature of a defamatory statement include: statements which are liable to lower a person in the estimation of right-thinking people generally; statements injuring a person’s reputation by exposing him or her to hatred, contempt or ridicule; statements which tend to make a person be shunned or avoided.
Examples of defamatory forum posts include allegations that a person: has committed a criminal offence, is an alcoholic, has committed adultery, is bankrupt, and so on.
For more information about defamation, see: 10 things you should know about … libel.
The law of malicious falsehood is related to the law of defamation, but it is not concerned with reputation as such. A post may create liability for malicious falsehood where:
- it is untrue;
- it is published maliciously, in the sense that the troll knew the statement was untrue, and either intended to cause harm or was recklessly indifferent to possibility of harm being caused; and
- the subject of the post suffers financial loss, or is likely to do so.
Slander of title and slander of goods are species of malicious falsehood.
For example, an untrue forum post alleging that a particular product is unsafe or suffers from a design defect might give rise to a claim for malicious falsehood.
Under Section 1(1) of the Protection from Harassment Act 1997, “a person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.”
Behaviour will only count as a course of conduct if it occurs on at least two occasions. Alarming a person or causing a person distress amount to harassment.
There is also a special, more serious, offence of putting a person in fear of violence: “a person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions” (Section 4(1)).
However, the offences do not apply to a course of conduct pursued for the purpose of preventing or detecting crime; nor do they apply to conduct pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment; nor do they apply where, in the particular circumstances, the pursuit of the course of conduct was reasonable.
The 1997 Act was directed specifically at stalking, but it can easily apply to the actions of some internet trolls.
Harassment is a criminal offence, and can lead to a fine and/or imprisonment. It may also ground a civil claim for an injunction and/or damages.
Note that under this legislation, additional penalties may apply in the case of harassment that is racially or religiously aggravated.
Section 1(1) of the Malicious Communications Act 1988 provides that an offence is committed by any person who sends to another person, with the intention of causing distress or anxiety:
- an electronic communication which conveys a message which is indecent or grossly offensive, a threat, or information which is false and known or believed to be false by the sender; or
- any electronic communication which is, in whole or part, of an indecent or grossly offensive nature.
Electronic communication is specified to include any communication sent by an electronic communications network, and any communication (however sent) that is in electronic form, and should therefore cover forum and message board posts.
Section 127 of the Communications Act 2003 provides for two further offences, very similar to that under the 1988 Act.
First, a person is guilty of an offence if he sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or causes any such message or matter to be so sent.
Second, a person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he: (a) sends by means of a public electronic communications network, a message that he knows to be false, (b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network.
Punishment under the 1988 Act or the 2003 Act may, again, be by way of a fine and/or imprisonment.
Civil wrongs vs criminal offences
It might be thought that criminal offences are always more serious than civil wrongs, but that is not the case. Monetary penalties in the case of civil wrongs can be more substantial than the fines imposed for criminal behaviour. Moreover, from the point of view of a forum or message board operator, criminal offences usually require some level of intentionality, whereas civil wrongs can be committed simply by virtue of the operator being considered a publisher. There are of course ways of managing this risk, but a discussion of those will have to await another post.