Jonathan Bishop

A major story broke today that an Olympian, Tom Daley, who narrowly missed out on a Medal at the London Olympics was trolled on Twitter by a user called  Rileyy_69, a 17-year-old boy, who made a reference that is father, who died tragically from cancer last year, would be ‘let down’ by the narrow-miss.

The exact message from the teen was:

“You let your dad down i hope you know that.“

Daley responded by tweeting as follows:

“After giving it my all… you get idiots sending me this…“

It may seem shocking to some, but this teen, who was arrested under the Malicious Communications Act 1988 did not in my view break the law, but I believe Daley did!

If one takes this post in isolation of the teens other tweets that use vulgar language, which he posted many of. But I will consider the consequences of follow up posts where he did use vulgar language, which were on the basis of ‘aggravated trolling’ or ‘fighting flame with flame’, where is someone is attacked for something they said in an offensive way they retaliate with the same. A notable case is that of Liam Stacey, who posted a barrage of racist abuse after he was criticised for mocking the cardiac arrest of Fabrice Muamba when drinking heavily after a rugby match.

The leading case on the Malicious Communications Act is DPP v Connolly. In this case it confirmed that a message sent had to be ‘grossly offensive’, a ‘threat’ or something known to be false. The case found that the motive for the message does not come in to it, nor does the person to which it is intended for have to receive it.

Rio Ferdinand called Black footballer Ashley Cole “choc ice” for testifying in support of John Terry. Courtesy: Wikipedia

On this basis, I would say that even though the teen likely made the post in order to offend Daley, the message itself was not grossly offensive. Simply saying one’s father would feel let down is not offensive without the context that one’s father died tragically, is not the same as the report by Sky News of Rio Ferdinand saying that Ashley Cole who spoke in defence of John terry was “choc ice”, referring to a Black person with sympathies for White people.

I use this thing called the toddler test. If a comment would go over the heads of a toddler and if the toddler would not offend others by repeating the comments then it is not grossly offensive.

Daley on the other hand was grossly offensive called the teen an “idiot” as this is not something that one would want a toddler to repeat.

Tom Daley called a 17-year-old boy an “idiot” after the teen said Daley’s late father would be “let down” by him narrowly missing securing a medal at the London Olympics. Courtesy: Wikipedia

So, on the basis that the teen is being investigated under the Malicious Communications Act 1998, if parity was applied then it would be Daley who should be charged under this Act and not the teen.

However, if one were to take the meaning given to “grossly offensive” in the Communications Act 2003, as defined in DPP v Collins, then the teens message would fall foul of that Act. That is because in that case it was found that a message is grossly offensive if it is ‘intended’ to be so.

On this basis I would say the case is ‘flame-for-flame’ that is, both parties were as bad as each other. However, one might expect a teen who has not reach the age of majority to act in such a way, which I restate posted a message that would be meaningless to a toddler. But one should not expect an elite professional to respond the way that Tom Daley did, even if he was only one year older.

Looking at the later posts, where the teen interacted with others, he did committ offenses under these Acts, but they were in my view aggrevated by the abuse he received. For instance, one Twitter user said the following:

@Rileyy_69 @TomDaley1994 how dare you try and threaten someone who is diving for our country you little scum bag

This arrevated the teen in to posting the following, which has been edited to remove expletives:

@_OllyRiley i dont give a s**t bruv i’m gonna drown him and i’m gonna shoot you he failed why you suporting him you c**t

So one can see how young people can be easily inflamed into posting some of the most vile and threatening context simply because of the way they are abused by others. This message posted by the teen was thus aggravated by the previous message.

The teen apologised to Daley after “discovering” his father had died. But Daley did not accept this apology, leading the teen to tweet:

@TomDaley1994 why don’t you respond to me you prick stop getting me hate alright I’ve said I’m sorry now fuck off

The recent case of Chambers v DPP (2012) found that if a threat like this did not create apprehension then it was not prosecutable. It is unlikely that Daley or any of his followers thought the teen was able to carry out the threat, so it would not be prosecutable under the Communications Act 2003.

It is clear to me that the Crown Prosecution Service are going to have to issue some guidance on this. In my view, neither Liam Stacey nor this teen would have posted the vile abuse that followed their initial tweet had others not reacted abusively to them. There may need to be a defence of “provocation” for want of a better word for people who take part in serious flame trolling following being abused by another person.

Equally, teenagers will be teenagers, and criminalising either of them would not be in the public interest in my view. If one thinks that at present Rio Ferdinand is unlikely to face charges from the police under either the Malicious Communications Act 1988 or Communications Act 2003, looking likely to only get a slap on the wrist from the FA, is it fair that young people like this are being criminalised for things that are said in the ‘real-world’ without any action being taken?