How the law of proportionality can be used against Internet trolling and sexting

October 25th, 2014 by
The NSPCC has started a campaign saying that the law as it stands is not able to prosecute people who send sexual messages to children on all occasions – I disagree. The law of proportionality can always be used.
Essentially, if a law is interpreted on the basis of proportionality, as discussed in my LLM thesis, rather than literality as is usually the case, then the law could always be used for what it was intended to be used for not simply what it says or doesn’t say. However, the laws I have suggested below can work with literality also.

Revenge porn

The voyeurism parts of the Sexual Offences Act 2003 can be used for revenge porn because it was intended to protect people who had a realistic expectation of privacy from being monitored with a technology without their consent. The same part was intended to prevent people from getting gratification from monitoring others in a sexual context who didn’t consent to them doing so.

Sending indecent, obscene or menacing messages

The Communications Act 2003 was made in the wake of cyberbullying via text messages on mobile phones and when Friendster and Yahoo!Chat were the most popular social networking platforms where people were being abused. Facebook is essential a more user-friendly version of Friendster, and Twitter is a more accessible and popular version of Yahoo!Chat. Twitter originally started as a way to share text messages with friends, and has since with its asynchronous communication become more like a chatroom. If the findings of my 2009 paper on genre are applied to Twitter now, it fits in the Chat Group genre and not the Weblog genre it did when it started.

Encouraging or inciting the sending of illegal messages

The provisions of the Communications Act, such as section 127, were intended to prevent the sending of any message via a public communications network such as the Internet or mobile phone that is grossly offensive or of an indecent, obscene or menacing character. This means children can theoretically be prosecuted for sending sexts. Taking this with the Serious Crimes Act 2007, already used in the wake of the 2011 UK riots against trolls, anyone inciting a child to send such messages is guilty of an offence.
People have been saying that the various trolling laws predate social media. Social media is simply a buzzword for ‘user generated content’ which has existed since Usenet, BBS and the Web. There is no problem today with social networking services that did not exist back then. My mother took my CB radio from me when she noticed a potential sex pest was talking to me in the 1990s – he could have been prosecuted under section 43 of the Telecommunications Act 1984 and the inchoate offence of incitement, which is a virtually identical process to section 127 of the Communications Act 2003 being used with sections 44 to 46 of the Serious Crime Act 2007.

Harassment and malicious communications

Statutory amendments by New Labour and the one by the Coalition Government have both updated the Protection from Harassment Act 1997 and indeed the proposed two-year jail term and allowing trolling to be heard in a Crown Court is being made to the Malicious Communications Act 1988, which New Labour updated to apply to electronic messages. This means technically in 5 or 10 years time when a new buzzword is out, people will still be able to say these Acts predate for instance quantum computing!

Mobile network is the future

July 27th, 2012 by

AS a Chartered IT Professional Fellow who is a director of three limited companies in Swansea, I question the welcoming by Swansea Business Club of the Welsh Government’s mass fixed-line broadband plan (Evening Post, July 24).

Neither I nor my businesses have any fixed-line connections. We do everything over the mobile phone network, which will soon be faster than the fixed-line “fibre broadband” the Welsh Government wants.

In 30 years, this Government led broadband network will be using wiring as out of date as the copper-based system we have now. However, mobile phone masts now in place will be easily upgraded to the latest technology without digging up the country.

A mobile broadband dongle provides as much data and speed as most businesses need. Investing in mobile phone infrastructure would benefit more people for more decades than the Welsh Government’s plans.

The future’s mobile

July 25th, 2012 by

I feel I have to write to express my dissatisfaction with Carwyn Jones’ “next generation broadband deal” with BT (“BT deal promises faster broadband to nearly all”, July 20). From both a technological and economics perspective the plan is flawed.

The First Minister wants BT to install “fibre broadband” cables to give the fastest internet connections in 96% of Wales. What about the other 4%? Will it be the same 4% currently without internet access because it is not profitable enough to provide it? In my view it would make more sense for public investment in broadband to focus on the mobile phone network. There are so many people in Wales without mobile phone coverage, and if capacity in this network was increased then the problem of lack of broadband access would vanish as would other aspects of the “digital divide”. Mobile broadband is in many cases cheaper than fixed-line broadband.

When “fibre broadband” is no longer the best game in town, if anyone could afford it, we will be stuck with as outdated a fixed line network as we have with copper now. But it is much easier to update mobile phone masts to the latest technology, as we have seen with them going from “GPRS” to “HSDPA+” with only a short amount of service interruption on each occasion.

Carwyn’s grand plan for broadband looks to me like being another EU-funded white elephant.

How champagne socialists further the working-class digital divide

June 30th, 2012 by

A couple of months ago casually said on a Labour Party politician’s page on Facebook that I think it would be a good idea to invite people to tweet during one’s speech at a conference to get live interactive feedback from the audience.

An A2P ensued (Analysis to Paralysis) where the merits of this were debated to its death. One of the things said were “not everyone can afford Internet phones” and “some people may not know how to tweet”.

I tried it at a conference of mainly middle class people the other day, and no one tweeted, but at events open to all, like shows at the former Cardiff International Arena, it is quite common and popular – it would be nice to know the demographics of these Twitter users.

Who are these people who can’t afford Internet phones? They are not the people on low incomes like myself, nor are they the people on benefits who aspire to be rich and imitate the rich at every opportunity (called ‘chavs’). My backronym for chavs might become ‘Cashless, Hopeful and Always Visually Successful’ to describe anyone who to others looks like they have more money than they actually do. I might fit such a definition – for now! It could even apply to middle class families whose children have the latest gadgets, but who do not have enough surplus income to do everything they want to do.

Merthyr Tydfil is known as the ‘Chav capital of Wales’, and is it these people who are keeping Pontypridd which is a couple of train stops away from dying a death, as it provides the goods these chavs want at an affordable price.

These people are most likely to benefit from innovations like I suggested, and it is only snobbish champagne socialists like members of the Fabiens who are holding them back. These typically middle class people think people on benefits can’t afford things like mobile phones, when in fact they are more likely to own them than more conservative techno-phobic middle classes who don’t need them as much.

The digital divide has therefore changed. It is no longer than ‘the poor’ can’t afford the latest technology, as thanks to New Labour’s anti-poverty policies they at present have more surplus cash. They are in fact being held back by an snobbish intellectual elite who rely on maintain the working class to maintain their collective memory of superiority and philanthropy.

The Fabien members of the Labour Party are one such group, who hold meetings to pity the working class while at the same time talking up their important role and wanting to maintain them for their own sense of importance.

The digital divide is no longer between the haves and have-nots, it is between the know-hows and the don’t-know-hows. And it is the working class that are more willing to take risk to know-how than the more conservative classes who don’t need to. So for every new use of technology a champagne socialist denies being created because it might disadvantage the poor, they are actually advantaging the more well off, who wouldn’t know how to use it – people like them perhaps?

The amendments I’d make to the Defamation Bill to tackle flame trolling

June 14th, 2012 by

I have long argued that there is enough criminal law to deal with Internet trolling abuses, called flame trolling. I have argued the problem is enforcing it, as it is often not a priority of the police.

Some have proposed mendments to the Defamation Bill to make it easier for flame trollers to be prosecuted for “libel” according to some source. This is not necessary.

Section 127 of the Communications Act 2003 (link) makes it a criminal offence to send a message via the Internet that is untrue. In effect, the laws around defamation on the Internet is stronger than in the real-world where it is not a criminal offence.

Equally, Section 6 Regulation of Investigatory Powers Act 2000 (link) gives the police powers, on the simple say so of a Chief Constable to request the information that Nicola Brookes went to the High Court for, and which it is suggested will be included in your Bill. In has been used in the West Country to snoop on parents to see they are in the catchment area they say they are in!

The best thing the government could do in my opinion to make it easier for the public to access this data which will in my view make it easier to ‘out’ flame trollers, would be to mirror those amendments made by the Digital Economy Act 2010, which allows for the resolution of copyright disputes, by amending the Communications Act 2003  in relation to Internet trolling where content online is disputed for accuracy or whether it was based on malicious intent to allow as easy a resolution.

Even under Margaret Thatcher’s Conservative government there was the criminal powers to bring cases against flame trolling. The laws mentioned above introduced by New Labour are basically identical to Margaret Thatcher’s Acts, so the problem of online harassment (AKA Internet trolling) has always been able to be solved:
This includes defamation being a criminal offence via communications networks in the case of Section43 of the Telecommunications Act 1984
The government appears to want a more strategic approach  with regards to high-tech crime, with the creation of the National Crime Agency, that the problem is more one of enforcement than lack of legislation. I set out in a journal paper how the Welsh Government can use its non-criminal powers to tackle the issue.

Swansea Student in Fabrice Muamba Racism Tirade

March 18th, 2012 by

A 21-year-old man from Swansea was arrested on Saturday after posting racially offensive Twitter comments about footballer Fabrice Muamba, who collapsed after suffering acardiac arrest during an FA Cup tie. The comments appeared on the Twitter account @liamstacey9, which has since been taken down, but a censored version appears below.

Councillor Jonathan Bishop of the Trolling Academy based at the Centre for Research into Online Communities and E-Learning Systems at the Institute of Life Sciences at Swansea University said he had never seen such obscene language on the Internet in the whole of his 18 years on the Web.

This was not an act of trolling as it was done out of pure anger and not for a laugh” he said, “This was what we call ‘Enhanced E-Venger Flaming’ and is done by people who are so caught up in the moment they will hit theenter key immediately in order to get vengeance against someone who wronged them

Cllr Bishop said the police have a number of computer law statutes they can bring charges under. The Malicious Communications Act 1988 which was used against ‘RIP Troller’ Sean Duffy is one option. The Communications Act 2003 used against Jamie Counsel who tried to start a riot is another possibility. Asthe Telecommunications Act 1984, which was used against Gavin Brent who postedthreatening remarks about the police online.

He warned however, that is was more importance for justice to be done than punishments to be issued. He said, “For there to be language this vile language suggests an underlying psychological problem, which can be down to abuse from others which is often let out at the least opportune moment, and it is more than likely they will do it again

Often the perpetrators of Internet abuse have been abused themselves and need help.” He added, “Whilst it certainly does not excuse their actions they have often ether being born into poverty, denied opportunities in life, orsocially excluded in other ways

Cllr Bishop’s Trolling Academy has a dedicated section on its website where people who might have seen the abusive messages can get access to sources of support appropriate to their needs for dealing with any trauma.

Can’t see positives in conviscating mobiles

January 21st, 2012 by

THE Manly Daily reports that children should be made to surrender their mobile phones at night in a bid to stop the devastating effects of bullying, according to a northern beaches expert called Rose Smith (‘Switch off the bullies’, January 18).

As an authority on ‘trolling law’ Ms Smith might wish to know that such a law was put in place in the UK under the Crime and Disorder Act 1998 before the parts she seeks her law to do being repealed by the Anti-terrorism, Crime and Security Act 2001, in part because of human rights issues.

How does Rose think confiscating a mobile is going to have any positive outcome?

When I was a child, taking one of my possessions would have serious consequences for whoever did and therefore myself.

This may be the case of many children from difficult backgrounds and the approach she says is appropriate is using martial arts.

This may work to discipline one and frustrate others.

Much of the guidance she gives relating to managing one child’s use of the internet is redundant with most of today’s anti-virus software, which makes life much easier for parents to control what their children see and restrict who they speak to.

Rose Smith can find out more about these and other facts at the Trolling Academy by visiting

Internet history

January 14th, 2012 by

I appreciate Walton MP Steve Rotheram writing into the Echo to critique my status as a trolling authority (Letters, January 11). As his colleagues at Westminster would tell him, I could not contact him direct, as he would not be allowed to respond to my letter, unless I wrote to him through my own MP, as this is parliamentary convention.

The Telecommunications Act 1984 made it unlawful to make abusive messages on a public telecommunication service. It was replaced by the Communications Act 2003.

Mr Rotheram mistakenly says the Telecommunications Act 1984 and Communications Act 2003 existed before trolling. The former Act existed during the time that Usenet was popular, which was a primitive form of Facebook Groups and BBS as well, a primitive form of the Facebook wall. The second Act came about when the social networking technology I invented in 1999 – the circle of friends – was being popularised by Friendster and MySpace, before becoming an essential part of Facebook when it became mainstream from 2007.

So like the word “social media” that he uses is the new word for “social networking” beyond these text-based interfaces, so the word “trolling”, has gone from meaning simply “act of posting a message in a newsgroup that is obviously exaggerating something on a particular topic” as described in 1995 in the Internet dictionary NetLingo, to refer to a specific act of posting inflammatory or obnoxious content (which may not be text) for one’s own or others entertainment.

He would know this, as any other Echo reader, if he read the pithy response to me by D Frederick from Garston in November (Letters, Nov 26).

Enough laws

January 6th, 2012 by

As a prize-winning authority on trolling and cyberlaw and an expert specialising in UK data misuse laws, I had to respond to Walton MP Steve Rotheram calling for trolling to be “banned” (Daily Post, January 3).

In my research at the Centre for Research into Online Communities and E-Learning Systems at Swansea University I have identified the first wide-reaching law outlawing trolling was brought in by Margaret Thatcher as section 24 of the Telecommunications Act 1984 – it is still used today!

The provision, was subsequently duplicated with different works by New Labour in Section 127 of the Communications Act 2003 and both are often used in the same trial.

Following that, New Labour made many anti-social behaviour laws that could apply to trolling, and with the Police and Criminal Justice Act 2006, they updated the Malicious Communication Act 1984 and Computer Misuse Act 1990, both made by the Conservatives, to directly deal with flame trolling.

Is Mr Rotheram saying these aren’t enough, and the fouryear jail term faced by Jamie Counsel from Cardiff for trolling on Facebook too lenient? Being newly elected in 2010, I think Mr Rotheram, who appears wet behind the ears as a jurist, should learn from UK cyberlaw scholars, especially former ‘New’ Labour councillors like myself, who only left the Labour Party after Ed Miliband declared the days of New Labour as being over.

It is no good knowing Keir Hardie helped found and lead the Labour Party if he knows nothing of the work contemporary Labour stalwarts like Dr Kim Howells and Stephen Timms did to reform the UK legal landscape relating to the Internet and trolling, both of them realising Keir Hardie’s notion of a fair and just society.

The cloud ‘will become essential for online learning sector’

December 19th, 2011 by

Cloud computing will become an essential part of online education resources, according to one expert who stated that the growth of virtualisation will help to develop information providers in the learning field.

Jonathan Bishop, chair of The Centre for Research into Online Communities and E-Learning Systems at Swansea University, suggested that cloud technologies are a necessity for online subjects such as e-learning to grow and reach more internet users.

He said: “The holding of e-learning content in the cloud will enable faster deployment and sharing of resources.

“Cloud computing will become essential as the mobile platforms for e-learning become widespread.

The expert added that with the revolution of the cloud – just like to implementation of CD-ROMs in the past – will create a surge in popularity for industries such as distance learning.

Dr Mick Grierson, computing director of the Goldsmiths College Creative Computing Programme, recently commented that advanced computer technologies like the cloud could expel the need for traditional computing methods.