ANALYSIS: A headline on the BBC’s website yesterday reads: ‘Websites to be forced to identify trolls under new measures’, writes Paul Bernal. Beneath it, the first sentence says something somewhat different: ‘Websites will soon be forced to identify people who have posted defamatory messages online.’

  • You can read about the Nicola Brookes case and the groundbreaking legal fight to bring online bullies to justice on the JusticeGap HERE.

It’s interesting that the two ideas are considered equivalent. Are ‘trolls’ those who post defamatory messages online? Are those who post defamatory messages online ‘trolls’? Neither of those statements are really true – though of course the idea of a ‘troll’ is something that’s hard to define with any precision. Trolls, for me at least (and I’m a bit of an old hand in internet terms), are people who try to provoke and offend, to get people to ‘bite’ – not necessarily or even particularly regularly through the use of defamation. They use a variety of tactics, from just saying stupid and annoying things to the most direct and offensive – and intimidating – things imaginable. Defamation may indeed be one of their tools, but at best it’s a side issue.

Taking that a step further, the trigger for this suggestion appears to have been the Nicola Brookes case – which was about bullying, abuse and harassment much more than it was about defamation. Of course being called a paedophile and a drug-dealer is technically defamatory, but I don’t think defamation was what bothered Nicola Brookes. She wasn’t worrying about her reputation – she was worried about being harassed and bullied. As she put it: ‘The abuse is absolutely horrendous… They literally torture people – they invade your life… steal your identity… spread malicious things.’

It’s not about defamation
So why are the stories about defamation – and why is Ken Clarke suggesting changes to the Defamation Bill to deal with them? Are there other motives here? Is there something quite different going on? I suspect so – and I fear that this may be yet another attempt to use a hideous event to bring in powers that can and will be used for something quite different from that which the event concerns.

We already have the law to deal with trolls and bullies – which is why Nicola Brookes got her court order, and why the man who trolled Louise Mensch was convicted, and quite rightly, in my opinion. There are significant issues to deal with – not least, as Brookes and her lawyer, Rupinder Bains, stressed, the police need resources, training and support in dealing with these issues, and services like Facebook need to take their responsibilities seriously – but we don’t need new law and we need to be careful that we don’t throw the baby out with the bathwater.

Anonymity matters
Harassment and bullying need dealing with – but we have to be very careful about how we balance things here. Anonymity may sometimes be used to cloak bullies and trolls – but it is also crucial to protect whistleblowers, to protect victims of domestic abuse from being tracked down by their abusers, to enable people to express important and valid opinions without fear of oppression or retribution. This is particularly important on the internet. Some of the best blogs are anonymous – the late lamented Nightjack blog is just one example – and their anonymity can be a key to their success, and their importance. Through anonymity truth can be brought out – and without it, much would be lost.

Even the knowledge that anonymity may be broken could have a chilling effect. Would people feel free to express themselves, particularly in difficult circumstances, if they believed that by doing so they would expose themselves?

The importance of this may not appear obvious in a country like ours – but the situation can be very different in other places. In Mexico, for example, where anonymous bloggers campaign against the depredations of the drugs cartels – and where if that anonymity is lost, so are their lives: at least four have been killed so far. And what about in places like China? Or even Syria? The extremes demonstrate the point – and when situations become more extreme, even ‘liberal’ governments can reveal their authoritarian tendencies. We need to be sure that we don’t set in place the infrastructure – both legal and technical – that allows those authoritarian tendencies to be used too easily. My favourite quote on the subject, from cryptography and internet security expert Bruce Schneier, is particularly apt. As he put it, in his blog back in 2007:

‘It’s bad civic hygiene to build an infrastructure that can be used to facilitate a police state.’

Acting to give too many powers to break anonymity would be a step in this direction – in the wrong hands, it could be potentially devastating. The additional confusion between defamation and trolling should start the alarm bells ringing – we need clarity here, not confusion. We need to be clear whenever we look to bring in new laws, but particularly when those laws will restrict freedoms. The ability to be anonymous on the internet is an important freedom: we need to be very careful about how and when to restrict that freedom.

Profile photo of Jon Robins About Jon Robins
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award

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1 Comment

  • Mark Leiser June 13, 2012 11:35 am

    If there is ever an example of the BBC not getting it, this is it. Firstly they confuse the two separate cases of Rebekah Brooks (nee Wade) and Nicola Brookes.

    Ms Brookes case is criminal under the Protection from Harassment Act 1997. In other words it has nothing to do with defamation. She’ll have to succeed in a criminal prosecution of a troll which won’t be easy and the trolls will have safeguards that any criminal procedure offers them. If the trolling was deemed to be ongoing and viscous, then why are we even looking at this as a computer/internet matter? Give the troll an ASNBO and move on. (Anti social networking behaviour order, by the way, I made that up) through an normal ASBO.

    The second issue related to the proposed legislation that will give hosts a partial defence against defamation claims if they identify anonymous posters. This appears to be a statutory alternative to the NPO procedure, albeit with limited scope. This will need suitable safeguards to protect anonymous or pseudonymous comment.

    A while back I got into a twitter argument with a Sky Reporter. Nothing nasty, nor heated. But I did find it very alarming that in the day after this story came out, SKY was complaining about the abuse it gets online. As a corporation is provided with human rights, is it conceivable that SKY would be able to use NPOs to find out the identity of the troll? Considering the abuses certain journalists committed resulting in the Leveson inquiry, how dangerous would it be to have a news organisation like SKY having a court procedure in place that allows for them to reveal the identity of the troll?

    Its right that anonymous internet “trolling” is addressed, but the details of this aren’t actually in the Bill.

    http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0005/cbill_2012-20130005_en_2.htm#pb2-l1g5 Clause 5 of the Bill does not address internet trolls, – it relates only to postings or comments that are defamatory, although some allegedly harassing comments will also be defamatory.

    It seems that the government needs to do more to enforce existing real world laws. We havent even discussed the problems with searching for someones identity by IP address, which I imagine is a whole other kettle of fish…

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