The Law and Business of Social Media
June 13, 2012 - E-Personation, Litigation

Tracking the Trolls: A “Twitter Jitters” Update

Tracking the Trolls:  A “Twitter Jitters” Update

We reported this past May in our Socially Aware blog about efforts of law enforcement authorities in the United Kingdom to adapt existing laws to police potential offenses committed via social media.  The UK government has just announced proposals that will make it easier to identify people who abuse social media.

The UK government’s somewhat surprising announcement came just after a recent case that highlighted the problem that some law enforcement authorities seem to be having in deciding when to get involved.  That case also illustrated that the social media industry could be quicker to self-police, were it not for the fear of legal action.  In part, the UK government’s move is a reaction to the need—from both the police and the social media industry—for a better legal framework in which to take action against social media abusers.

In the recent case, a woman who had been targeted by trolls with a campaign of online abuse won a UK High Court order requiring Facebook to reveal the names, emails and IP addresses of the individuals behind the abusive messages.  Interestingly, the court action began only after the woman’s local police force refused to take action and was undertaken with the apparent full support of Facebook.

The campaign of harassment against Nicola Brookes began when she posted a comment on Facebook in support of a contestant on the UK talent show “The X Factor”.  Immediately after Ms. Brookes had made the posting, she was subject to a campaign of harassment by anonymous Internet trolls who targeted her Facebook account, set up a fake Facebook profile in her name using her picture, and posted explicit comments that, among other things, branded her a pedophile.

Ms. Brookes quickly became frustrated by the lack of action from the Sussex Police and decided to take matters into her own hands by initiating a criminal suit against the anonymous trolls via private prosecution.  In order to do so, however, she needed to know who the perpetrators were.  To get that information, she applied to the High Court for a procedural order under UK law known as a Norwich Pharmacal Order—which the court quickly granted. 

A Norwich Pharmacal Order requires the person to whom it is directed (in this case, Facebook) to disclose particular documents or data.  Usually, Norwich Pharmacal Orders are targeted at individuals or companies who are somehow involved in wrongdoing, whether innocently or not, but are unlikely to be a party to a potential proceeding.  These types of orders are often used to identify the correct defendant in an action or to obtain information to bring a suitable claim.

Facebook is supportive of Ms. Brookes’ court order application.  Facebook reportedly shares information such as IP addresses and basic subscriber information when there is legal justification and an obligation to do so; however, given that it receives similar requests frequently, its policy is that all demands for information must be backed up by a court order.

Facebook will be required to release the information as soon as all of the procedural requirements (which include serving the court order on Facebook at its U.S. headquarters) have been complied with.  In a recent statement, the company noted:  “There is no place for harassment on Facebook, but unfortunately a small minority of malicious individuals exist online, just as they do offline.  We respect our legal obligations and work with law enforcement to ensure that such people are brought to justice.”

In a separate case, on June 11, 2012, a British court handed down a suspended jail sentence to an Internet troll who posted abusive tweets threatening a British member of parliament.

The cases of Ms. Brookes and Ms. Mensch are merely the latest in a series of UK cases involving lawsuits arising as a result of social media use. 

The UK government, as keen as any set of politicians to latch on to a populist bandwagon, reacted to this recent spate of cases.  As luck would have it, a draft Defamation Bill is already making its way through the UK legislative system—and rapidly. The government has announced an amendment that will require websites to identify people who have posted defamatory messages online and will give victims of Internet trolls a right to know who is behind malicious messages, without the need for costly legal battles.  The new laws will apparently offer a defense to defamation claims to any online provider that identifies the author of defamatory material when requested to do so.

It is far from clear, however, how the proposed legislation will work.  In theory, the power to compel disclosure will be balanced by measures to prevent false claims, but operators of websites and other social media platforms will also be concerned with not being placed in the position of having to make subjective judgments as to what meets the takedown or disclosure criteria.  There are further concerns that the legislation will find it hard to distinguish between abusers and genuine whistleblowers; and some futher doubt exists as to how the laws will apply to non-UK operated websites and online platforms.