Anonymity
With the advent of the Internet and the intertwining of social media with our daily lives, the concept of anonymity and cyberbullying has become increasingly relevant in the legal landscape. For many years, the Internet’s anonymity was a greatly celebrated feature[1] as people felt that the veil of anonymity gave them the freedom to express opinions and engage in discussions which are legitimate and beneficial for the public benefit. The feature of anonymity is especially valuable to whistle-blowers who can reveal harmful company practices without fear of retaliation, for members of minority groups to share their experiences and for human rights workers to show a true picture of their work.[2] However, the drawbacks of anonymity soon emerged as an increasing number of cyberbullying cases were reported over the years.[3] One of the most famous cyberbullying cases is that of Sean Duffy.
Sean Duffy
Duffy was charged with two counts of sending malicious communications under the Malicious Communications Act 1988,[4] and was sentenced to 18 weeks of prison and banned from using social media for 5 years. Duffy had caused "untold distress" to the claimants by posting malicious messages and videos attacking a condolence page set up by the claimants in memory of their deceased child,[5] adding needless distress to the claimants as they had to deal with Duffy’s abuse on top of their daughter’s death. Prior to this instance, Duffy had also targeted the sites of numerous deceased children by mocking their deaths and writing malicious messages.
Defamation Act 2013
In response to the immense backlash after Duffy’s case, immense pressure was exerted on Parliament to introduce the Defamation Act 2013, which aims to ensure that “a fair balance is struck between the right to freedom of expression and the protection of reputation”.[6] Abusive behavior online is no longer tolerated[7] and in instances where the abuse has taken place on a third-party platform, the courts would be able to compel the third party operator to reveal the names of the online trolls. In the case of Nicola Brookes, a 45-year-old mother who has suffered internet abuse after posting messages supporting the former X Factor contestant Frankie Cocozza, the court had allowed Brookes to bring her action against the cyberbullies and compel Facebook to reveal the identities of the trolls.[8] This is a powerful remedy because without the court’s order to reveal the identity of the online trolls, the third party operator may refuse to reveal the name of the troll, allowing the troll to escape unscathed and ultimately failing to address the abuse that the victims have been subjected to.[9]
This remedy is based on the decision in Norwich Pharmacal Co v Customs and Excise Commissioners,[10] where the court held that an innocent party could be compelled to reveal information concerning unlawful conduct to assist the person suffering damage. This is supported in Author of a Blog v Times Newspapers Ltd,[11] where it was stated that website operators can be compelled to reveal the identities of individuals if the countervailing public interest would justify overriding the blogger’s prima facie right to privacy.
Flaws in the legislative and judicial controls
However, these controls may still be ineffective in deterring online trolls. Even though the court could order third-party operators to release the names of the trolls, this does not necessarily mean that the abuse experienced by the victim would stop.[12] In the case of Nicola Brookes, Brookes suffered greater abuse after the court’s order as Persistent and revengeful trolls may simply continue their cyberattack on their victims at a heightened level after the court had been issued.[13] Trolls may also be encouraged to continue sending hateful messages to provoke and “snare” a response from the victim, who is now regarded as a “celebrity” on Twitter.[14] The blatant disregard shown by trolls towards the punishments meted out by courts show that the judicial controls may be ineffectual in protecting the victims of cyberattacks.
Conclusion
Ultimately, the law does offer some protection to victims of cyberattacks but the protection may be limited. Even though the law has attempted to protect victims by exercising the power to order third-party operators to release the names of the trolls, this merely offers limited protection to victims as the trolls may not necessarily stop their cyber-attacks and this may even encourage trolls to continue sending cyber-attacks in an attempt to gain attention from a “social media celebrity”. Furthermore, the law may not offer sufficient protection to victims who have suffered great harm as these victims would not be able to seek recourse against all their attackers. Hence, more protection of the victims may still be needed to ensure that cyber attackers are deterred and that victims would be able to seek redress when needed.
Juet Wee Kweh
Criminal Law Editor
6th April 2019
[1] Glenn Fleishman, ‘Cartoon Captures Spirit of the Internet’ (14 December 2000, The New York Times) <https://web.archive.org/web/20171229172420/http://www.nytimes.com/2000/12/14/technology/cartoon-captures-spirit-of-the-internet.html> accessed 6 March 2019.
[2] Maureen Daly, ‘Is there an entitlement to anonymity? A European and international analysis’ European Intellectual Property Review 2013, 35(4) 198.
[3] Bullying UK, ‘What to do if you're being bullied on a social network’ (Bullying UK) <https://www.bullying.co.uk/cyberbullying/what-to-do-if-you-re-being-bullied-on-a-social-network/> accessed 6 March 2019.
[4] Rebecca Camber and Simon Neville, ‘Sick internet 'troll' who posted vile messages and videos taunting the death of teenagers is jailed for 18 WEEKS’ (14 September 2011, The Daily Mail) <https://www.dailymail.co.uk/news/article-2036935/Natasha-MacBryde-death-Facebook-internet-troll-Sean-Duffy-jailed.html> accessed 6 March 2019.
[5] Ibid.
[6] Parliament, ‘Defamation Act 2013’ <https://services.parliament.uk/bills/2012-13/defamation.html> accessed 6 March 2019.
[7] R v Liam Stacey [2012] 3 WLUK 1014.
[8] BBC, ‘’Sinister’ Facebook stalker jailed for abusing woman’ (1 August 2018, BBC) <https://www.bbc.co.uk/news/uk-england-sussex-45038379> accessed 6 March 2019.
[9] The Telegraph, ‘Trolling abuse got worse for victim Nicola Brookes after Facebook victory’ (11 June 2012, The Telegraph) > accessed 6 March 2019. <https://www.telegraph.co.uk/technology/facebook/9323700/Trolling-abuse-got-worse-for-victim-Nicola-Brookes-after-Facebook-victory.html> accessed 6 March 2019.
[10] [1974] AC 133.
[11] [2009] EWHC 1358.
[12] Sarosh Khan, ‘Can the trolls be put back under the bridge?’ Computer and Telecommunications Law Review 2013, 19(1), 9, 13.
[13] The Telegraph (n 9).
[14] Martin Wainwright, ‘Man who racially abused Stan Collymore on Twitter spared prison’ (21 March 2012, The Telegraph) <https://www.theguardian.com/technology/2012/mar/21/man-racially-abused-collymore-twitter-spared-prison> accessed 6 March 2019.
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.
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