This article was first written for ABTA’s Travel Law Today issue number eight, which can be downloaded here.
In 2014, the House of Lords defined trolling as ‘the intentional disruption of an online forum by causing offence or starting an argument’. This could include internet users who target businesses and brands by posting negative, factually incorrect, and often damaging reviews; just because they can.
Whatever the motivation behind this type of trolling, travel companies rely on consumer reviews to attract new customers, and trolling can seriously affect their brand, market reputation and revenue streams.
Is trolling a crime?
The Government pledged to make the UK one of the safest online spaces in its 2017 green paper on Internet Safety Strategy. It also asked the Law Commission to review offensive online communications laws. Whilst these steps on internet safety focus on trolling, businesses still have to work within the parameters of the existing legal framework.
Pursuing a troll in criminal courts is likely to be harder than a civil claim in the UK as cases need to be proved beyond reasonable doubt and the crime must generally relate to a victim. As such, although businesses may pursue trolls for criminal acts (eg for the improper use of public electronic communications contrary to s.127 Communications Act 2003 or harassment of individuals, contrary to section 2 Protection from Harassment Act 1997), the focus of this article is on civil actions and practical solutions.
So what can you do to prevent trolling?
- Maintain control – have robust terms and conditions
Your website terms and conditions should require users to use your platform appropriately (‘acceptable use’ provisions) and allow you to monitor user activity so that you can, at your absolute discretion, delete posts, comments or user accounts where you suspect trolling. By agreeing to these terms, users are legally contracting to follow your rules. If they do not, they may be in breach of contract, allowing you to bring, or even threaten to bring, a claim against them for breach of contract (although, whether you would do so in reality, will depend on the context).
- Pursue the troll
- Where publication of a statement has caused serious harm to a business’ reputation, in the form of serious financial loss, it may be possible to sue the troll for defamation, subject to a range of possible defences. Failing that, if the statement is false (but not defamatory), has been made maliciously and (typically) has caused special damage ie monetary loss, you might consider a claim in malicious falsehood.
- Where a defamation claim is successful, the courts will typically grant a final injunction to remove the words complained of, and to prevent the same or similar words being republished. Be aware, however, that there may still be practical difficulties in preventing reposts, for example by rogue posters, and especially in enforcing any court order outside the jurisdiction.
- Consider whether any posts may infringe on your intellectual property (IP) rights (does the troll use any of your trademarks or materials protected by copyright?) If so, you may be able to bring a claim for IP infringement.
Whilst these suggestions provide some guidance, there are inherent practical issues with them.
For example, how do you find out who the poster of the content is eg the troll? Trolls are often anonymous. Moreover, their contact details can be difficult to obtain from website operators. If an operator does not willingly provide this information (and, under the Defamation Act 2013, it is automatically not required to do so), you could apply for a court order requiring this disclosure (a Norwich Pharmacal Order). However, this can be a costly exercise and the law in relation to Norwich Pharmacal Orders with a connection to a foreign jurisdiction is unclear.
Generally, litigation is costly and slow. Even if you locate the troll and successfully bring a claim against them, your brand may already be damaged.
- Pursue the platform host
Website operators typically seek to avoid liability for defamatory material by arguing that they have no duty to monitor websites and that, under s.10 Defamation Act 2013, they are not the ‘author, editor or publisher’ – hence the common refrain that they are ‘platforms not publishers’. They may also have a range of ‘safe harbour’ defences under the E-Commerce Directive 2000, including the ‘mere conduit’, caching or hosting exemptions, where they can show they did not have actual knowledge of the unlawful material and then acted expeditiously to remove it once put on notice.
Partly in order to avail themselves of these defences, most platforms operate a reactive ‘notice and takedown’ model. You should consider sending such a ‘takedown notice’, explaining why any particular content is unlawful and requesting its removal. This may provide a swift and effective remedy without the need for full-blown litigation.
However, difficulties arise when an operator is located outside the EU. For example, UK judgments can be difficult to enforce against US-located website operators. Moreover, if a no-deal Brexit happens, it presents real uncertainties: it may become difficult to enforce UK judgments in the EU and, over time, EU and UK attitudes to trolls may diverge more significantly, exposing international businesses (such as travel businesses) to potentially prolonged reputational damage in the EU market.
Is there anything else you can do?
Travel businesses should also have sensible PR strategies to guide them on how to deal with trolls. For example, consider whether: your business could reply cordially and nullify the intended effect of the post; or to release a formal PR statement; or, where a post has little to no traction or effect, doing nothing so as to avoid (potentially) raising a troll’s profile.
Will we ever see the end of social media trolls?
Trolls are part of the digital age and seem here to stay. Get rid of one and more appear. As such, there is no easy legal solution to preventing trolling and, in reality, businesses need to balance the likelihood of bringing a successful claim against legal and reputational costs. However, having robust platform terms and conditions, and a knowledge of how to combine legal and PR tactics, may be the most effective way to silence a noisy troll without them resurfacing.