This is your brain online: What can you and can’t you say on Twitter?

By Carl Miller

Trolling has scandalised the press in recent weeks. A few days ago, Stan Collymore took a very visible stand against the racist abuse and death threats, he's received on Twitter. A day before, the Cardiff Blues had to condemn the "uninformed vitriol" aimed at Sam Warburton on social media and gymnast Beth Tweddle's Tweetchat (a kind of online Q&A) was hijacked by trolls looking for a celebrity rise.

As I wrote last time, the use of Twitter to racially and misogynistically abuse, harass and threaten, is a worrying and offensive (if proportionally small) part of how it is used. It is often celebrities that we hear about receiving abuse, but many others receive abuse that is just as vicious. 

Whilst the visibility of trolling in the mainstream press is relatively new, trolling itself is as old as the internet. Back in the 1970s academics on Usenet groups would seamlessly glide from discussions about physics and code to venomous, personal insults and back again. Trolling has endured ever since, elevated by its practitioners to what they consider an art form, with its own phraseology, etiquette, and discussion sites

The problem is that whilst trolls once lived on the dank, dark side-roads of forum culture, they now – thanks especially to Twitter – have jumped onto the increasingly central thoroughfares of mainstream public life. As such, they are increasingly being held to account by mainstream norms and laws.

As our online and offline worlds collapse together, I set out to find exactly what you can and cannot legally say on Twitter. The results (which in no way constitutes legal advice) are astonishing: 

Two laws are most relevant: the Malicious Communications Act 1988 and the Communications Act 2003 (Section 127 for anyone who's interested). They were pointed to in June last year, when the director of public prosecutions published guidelines for how prosecutors should approach what is said on social media. (Anyone using Twitter should read them. Really.)

The purpose of both these Acts is to define certain kinds of communications as illegal. First up comes credible threats of violence, the specific and sustained harassment of an individual, and the breach of a court order. You can't do any of that on Twitter, which seems fair enough; so far, so straightforward. 

It is the final category of communication that is truly stunning. Both Acts, using very similar language, makes it an offence to send a communication that is (a) is "indecent", "grossly offensive", or "information which is false and known to be false" and (b) when the purpose is that it should cause distress or anxiety to the recipient.

If you wanted to make trolling illegal, this is exactly the law you'd write. Trolling is defined as "the art deliberately, cleverly, and secretly pissing people off". The entire point of trolling is to cause distress, often, yes, through very indecent remarks, and almost always using information that the sender knows to be false. These Acts not only make trolling formally illegal, but a serious offence possibly carrying jail time. Two people, indeed, were jailed last week for especially heinous and offensive tweets to a feminist campaigner.

Both judges and prosecutors recognise that strictly applying these laws to the internet could be disastrous. The lord chief justice recognises the right to make "satirical, or iconoclastic, or rude comment".  The director of public prosecutions has instructed prosecutors to have a very high threshold of evidence before pressing ahead with a case, that it has to be very offensive, and to weigh up pursuing a conviction with the public interest of a possible chilling effect on free speech.

The problem is that it is now not a question of trolls breaking the law, but a question of whether it is in the public interest to prosecute them. Millions of people are not being prosecuted and thousands (probably, using information released by Freedom of Information requests) are on a vague estimation of public interest and crossing an invisible line separating rude comments from grossly indecent ones. If you step over an invisible line, you will land up in court, possibly prison.

It's hard to believe that the current way we are dealing with trolls on social media is the right one. If you don't want a law to be enforced, take it off the statute book. Combining draconian law and restrained application can only look arbitrary, unevenly applied and ultimately probably unfair.

Carl Miller is the founding research director of the Centre for the Analysis of Social Media (CASM) at Demos. It is the first think tank institute dedicated to researching digital society. Read an explanation of CASM in Demos Quarterly.

He is the co-author of a series of pamphlets and essays contributing to the birth of social media science and 'SOCMINT', social media intelligence. This includes #intelligence, the first framework for the ethical and effective collection of social media intelligence for public security, @metpoliceuk and Policing in an Information Age – that look at the implications of social media for policing and security.  His upcoming paper, Vox Digitas: listening to digital voices, lays out a new method to understand attitudes from Twitter.