Recent high profile news stories concerning UK individuals missing abroad have attracted unwelcome reports of online trolling and tragedy abuse.

It is a sad reality that so often when a person goes missing or is murdered, their relatives and friends are subjected to cruel and antagonistic messages from people they do not know. Nowadays, that vitriol is largely spread online but malicious communications do, of course, predate social media platforms.

An early example of this is the 1979 murder of Michelle Martinko in Iowa, USA, in which her mother reported receiving so-called ‘prank’ calls in which the caller imitated Michelle’s voice and said, “mother, mother” repeatedly, causing her immense distress.

More recently, teenage Rangers fans photographed themselves at the site of a 14 year-old Celtic fan’s murder while holding a sign and sent it via Instagram to the boy’s aunt.

Currently, the media are focused on the case of British teenager Jay Slater who has gone missing while walking back to his holiday accommodation in Tenerife. Shockingly, his family have been forced to plead for compassion online following widespread mockery and condemnation of them and Jay. Anyone with an active X (formerly Twitter) account would have been hard pressed not to come across at least one post mocking the disappearance of Slater over the past week.

Scores of people have been posting their armchair theories about his disappearance online, which has seemingly prompted scores of others to not only deride the various suggestions but to actively poke fun at the unfolding situation. Slater’s mother, for example, has been endlessly compared to Karen Matthews, convicted in 2008 of child neglect following the false abduction of her daughter, Shannon.

Many in society that would be confused by the motivations of people who do this, of course, but from a legal perspective the phenomenon is not a new one and the law provides both criminal and civil recourse for victims.

Criminal offence

The Communications Act 2003 covers communications that are considered grossly offensive, indecent, obscene or menacing. The legislation does not define ‘grossly offensive’, however, in DPP v Busetti [2021], it was held that it is not enough for a message to be in bad taste. The purpose must be to annoy or inconvenience someone, or cause them anxiety.

The sender must either be aware that their message is obscene or aware of the risk that it could be seen as such by a reasonable member of the public who came across it. In the case of DPP v Collins [2006], it was held that “the test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”

To be covered by the legislation, the message must have been sent on a ‘public electronic communications network’, which covers telephones and social media.

Importantly, the posting must be persistent. In Scottow v CPS [2020], the Defendant posted 17 messages on social media sites about Ms Hayden, a trans woman and activist on transgender rights. Ms Scottow wrote that Ms Hayden was a “pig in a wig” and said, “he is a very sick individual,” among other tweets. Ms Scottow was convicted at St Albans Magistrates’ Court under section 127 of the Communications Act and appealed it. One of her grounds for appeal was that she did not make ‘persistent’ use of the communications network. However, Mr Justice Warby found against her. 17 posts were, in fact, enough to pass the threshold.

A person guilty of this offence, if convicted, can be sentenced to a term of imprisonment of up to six months or to an unlimited fine, or both. In deciding whether to charge a Defendant and bring a case, the Crown Prosecution Service will consider their likelihood of re-offending, the harm caused to the victim, whether the Defendant expressed genuine remorse and took action to remove the communication, and whether it constitutes a hate crime.

Civil action

Besides from criminal repercussions, social media users can also be liable for civil claims in defamation. We work closely with our colleagues in the Commercial Litigation and Media Law teams to advise clients on where a circumstance is more suited to a libel claim or criminal reporting. It is good to be aware that posting online can open up both avenues of action – particularly given that civil courts have a lower standard of proof than criminal courts.

In order to bring a defamation claim, a claimant must establish that the words complained of are defamatory to them. This means proving that the statement lowers other people’s estimation of them and would have a “substantially adverse effect” on how they are treated (Thornton v Telegraph Media Group Ltd [2010]).

To be defamatory, a statement must have caused, or is likely to cause, serious harm to the claimant’s reputation. Finally, the statement must have been published to a third party, which encompasses both social media posts and messages.

If the claim is made out, then a High Court judge can award damages (compensation), an injunction or an order for the statement to be removed.

A defendant will not be liable if they can show that their statement was substantially true or on a matter of public interest.

The Jay Slater Disappearance

In this very tragic case, then, where there are new posts and ‘memes’ emerging by the hour, it is prudent to be aware that there are legal actions that can be taken against those who post malicious communications and the consequences can be both serious and costly. 

Because we quite rarely hear of these offences being prosecuted in the media and in our social circles, it may be difficult to imagine that there are in fact real life consequences to online posts, which in turn can be interpreted as having a free pass to post whatever punchline or taunt comes to mind.

However, given the level of discretion and subjectivity involved in the courts’ decisions at to whether a message is defamatory or grossly offensive, there are serious risks of both being sued and/or prosecuted as a result. What may seem potentially acceptable among virtual friends and followers is still capable of being found indecent or obscene by a jury or judge.

Not every post will meet the criminal threshold of being grossly offensive, of course, even if in incredibly poor taste. The legislation makes clear that the purpose of the post or message is relevant.

We represent clients who have been victim to malicious communications, which causes untold stress to their lives and impedes their ability to get on with daily tasks out of fear for their safety. We are also able to represent those who have been accused of sending malicious communications.