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Scope and Limitations in the

Government of Wales Act 2006 for
Tackling Internet Abuses in the Form
of Flame Trolling
J O N AT H A N B I S H O P *

Introduction
Devolution has had a significant impact on the differences between the way
legislation is constructed and implemented in the nations and regions of the British
Isles that form part of the United Kingdom. It is known that the ever-increasing
divergence of such legislation is leading to new legislative regimes that will
mean that policies on talking mis-behaviour will differ significantly over time.1
A search of the news archives of one of these nations in particular, Wales,
including The Western Mail, South Wales Echo, South Wales Evening Post, found
over 700 articles that could be linked to internet abuse. Of these articles, there
were 36 instances of the Welsh Assembly being mentioned and none of these related to tackling Internet abuse. One of the few references to information technology specifically was when the then education Minister, Jane Davidson, was
reported as saying that Welsh Government (WG)s decision to spend 24m on IT
equipment for schools over three years would ensure all pupils had a chance to
develop skills needed. This clearly shows the lack of priority of tackling Internet
abuse as distinct from other forms of offline bullying. In fact, it is known that its
drive to ensure schools have effective anti-bullying policies affects the extent to
which traditional forms of bullying occur at those schools in Wales.2 Indeed, it is
* Electronic Law for Internet Empowerment Group, Centre for Research into Online Communities and
E-Learning Systems, The European Parliament, Brussels, Belgium.
1 K Reid Management of School Attendance in the UK [2010] 38(1) Educational Management
Administration & Leadership 88.
2 P Lambert et al. The Social Context of School Bullying: Evidence from a Survey of Children in South
Wales [2008] 23(3) Research Papers in Education 269.

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argued that whilst clear evidence shows that school non-attendance is liked to
cyberbullying, this is an ever-increasing problem that policymakers have not
kept up with the hardly standing still topic.3
Wales as a devolved nation gets its powers from the Government of Wales Act
2006 (GOWA2006), after first gaining limited secondary legislative powers in
1998.4 Part 4 of the GOWA2006, which came into force in May 2011, gave the WG
enhanced primary legislative powers, nearly identical to those devolved to
Northern Ireland and Scotland in the 1990s. While these powers do not include
criminal law, it is known that criminalizing Internet abuse is ineffective without
giving priority to enforcing it, especially as most abuse goes unresolved as with
other crimes even with the New Labour Government introducing over 3000
offences.5

Internet Abuse, Cyberbullying, and the Concept of Trolling

The term trolling is not new and nor are its effects as it is well known that abuse
over public communications networks affects school attendance.6 While the term
trolling was popularized by the press in 2011 as a catch all term for all types of
internet abuse and cyberbullying, it has existed since the dawn of multiuser distributed electronic systems.7,8 A genetic definition of trolling, which is done by
people collectively called Trollers, could be A phenomenon online where an
individual baits and provokes other group members, often with the result of
drawing them into fruitless arguments and diverting attention from the stated
purposes of the group.9 As can be seen from Table 1, it is possible to map the
types of character in online communities identified by10 against different trolling
practices.
This makes it possibly to clearly see the difference between those who take
part in trolling to harm, who could be called flame trollers from those who post
constructively to help others, called kudos trollers. A flame is a nasty or insulting
message that is directed at those in online communities,11 although could be
3
4
5

6
7
8
9
10

11

K Reid, Behaviour and Attendance: The National Picture; A Synopsis [2008a] 60(4) Educational
Review 333.
R Owen, Government of Wales Act 2006 [2008] 42(1) The Law Teacher 103.
J Bishop Tough on Data Misuse, Tough on the Causes of Data Misuse: A Review of New Labours
Approach to Information Security and Regulating the Misuse of Digital Information (19972010)
[2010] 24(3) International Review of Law, Computers & Technology 299.
K Reid The Causes of Non-attendance: An Empirical Study [2008b] 60(4) Educational Review 345.
E Jansen and V James, NetLingo: The Internet Dictionary (Steelville, MO: Netlingo Inc., 1995).
E Jansen and V James, NetLingo: The Internet Dictionary (Steelville, MO: Netlingo Inc., 2002).
J Moran, Generating More Heat than Light? Debates on Civil Liberties in the UK [2007] 1(1)
Policing 80.
J Bishop, Increasing Capital Revenue in Social Networking Communities: Building Social and
Economic Relationships through Avatars and Characters in S Dasgupta (ed), Social Computing:
Concepts, Methodologies, Tools, and Applications (Hershey, PA: IGI Global, 2009).
CH Leung, Critical Factors of Implementing Knowledge Management in School Environment:
A Qualitative Study in Hong Kong [2010] 2(2) Research Journal of Information Technology 66.

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Table 1: List of troller character types and their trolling techniques

Troller character type

Description

Lurker

Silent calls by accident, etc., clicking on adverts or like

buttons, using referrer spoofers, modifying opinion
polls or user kudos scores.
An elder is an outbound member of the community, often
engaging in trolling for newbies, where they wind up
the newer members often without question from other
members.
A Troll takes part in trolling to entertain others and bring
some entertainment to an online community.
A Big Man does trolling by posting something pleasing to
others in order to support their world view,
A Flirt takes part in trolling to help others be sociable,
including through light teasing
A Snert takes part in trolling to harm others for their own
sick entertainment
A MHBFY Jenny takes part in trolling to help people see
the lighter side of life and to help others come to terms
with their concerns
An E-Venger does trolling in order to trip someone up so
that their true colours are revealed.
A wizard does trolling through making up and sharing
content that has humorous effect.
An Iconoclast takes part in trolling to help others discover
the truth, often by telling them things completely factual,
but which may drive them into a state of consternation.
They may post links to content that contradicts the
worldview of their target.
A Ripper takes part in self-deprecating trolling in order to
build a false sense of empathy from others.
A chatroom bob takes part in trolling to gain the trust of
others members in order to exploit them.

Elder

Troll
Big Man
Flirt
Snert
MHBFY Jenny
E-Venger
Wizard
Iconoclast

Ripper
Chatroom Bob

extended to include the posting of any content to the Internet which is designed
to harm or be disruptive. A kudos on the hand can be seen to be a message that
is posted in good faith, intended to be constructive.

Instances of Trolling in Wales

The dictionary, NetLingo identified four types of troller: playtime, tactical, strategic,
and domination trollers.11 Playtime Trollers are actors who play a simple, short
game. Such trollers are relatively easy to spot because their attack or provocation
is fairly blatant, and the persona is fairly two dimensional. Tactical Trollers
are those who take trolling more seriously, creating a credible persona to gain
confidence of others and provokes strife in a subtle and invidious way. Strategic
Trollers take trolling very seriously and develop an overall strategy that can
take months or years to develop. It can also involve a number of people acting

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together in order to invade a list. Domination Trollers conversely extend their

strategy to the creation and running of apparently bona fide mailing lists. These
grades of trolling activity intensity can be a good guide for the judiciary to judge
the severity of a trolling offence.
Perhaps the first reported instance of trolling in Wales was in the South Wales
Evening Post in August 1999 following a football match between Cardiff City FC
and Millwall FC where it was indicated that much has been made of internet
messages sent by Millwall hardcore to the Cardiff fans and apparently carrying
racial abuse and inciting violence against the Welsh. This attack had to be carefully planned to acquire all the details, so should be considered strategic trolling
or domination trolling as they involved some effort, but the attackers probably
knew exactly what they were doing. The following month the South Wales
Evening Post also posted about similar uses of mobile technology to incite violence, this time during the Swansea City v. Hull City football match. The next
types of trolling reported in Wales were probably playtime trolling or tactical
trolling. In this instance, again reported in the South Wales Evening Post, was a
rise in flame trolling via mobile phones using text message. Calls to ban mobile
phones were made, including by trade unionist John Bushell, who said, This
latest development is dreadful and to be abhorred. At the moment it is up to
individual schools to ban mobile phones but some pupils are getting round this
ban by using the text message service. It is as good a reason as any to have a ban
imposed in all schools.
As discussed in the literature, the criminal method of dealing with data misuse
like flame trolling is not always effective [ref-5-bishop]. A recent case in Wales
was that of a Swansea University student who went to jail for 56 days following
a drunken tirade of abuse on Twitter when he mocked the footballer Fabrice
Muamba who suffered a cardiac arrest at a football match. The judge, John
Charles, in his case under racism laws said he had done untold harm to his
career by posting racist comments following turning into an E-Venger follows
others criticising his flame trolling as a Snert (see Table 1). In effect he went from
Playtime trolling to Tactical trolling in one moment and doing so meant his career
hopes were dashed as he was criminalised by the court and suspended from his
university course. An earlier incident in Wales was that of Gavin Brent from
Flintshire in 2008 who was sentenced under the Telecommunications Act 1984 for
persistently writing abusive messages about a police officer - a form of Strategic

Figure 1: The persuasion continuum for trolling.

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Trolling. Equally in the midst of the 2011 UK riots Jamie Counsel in an act of Tactical Trolling created a Facebook page trying to incite disorder in Cardiff. This
then became Strategic trolling when he changed the name of the group to focus
on Swansea as he should have realised the consequences of his actions. The
judge, Nicholas Cook, sentenced him to 4 years in order to serve as a deterrent,
saying, If anybody is tempted to use modern media to incite violence on our
streets - they will be detected and will face stern punishment.
Whilst they are impartial, often the judiciary lack the mental models of modern
technology to understand the differences between these aforementioned different severities of trolling in determining their judgements. To put these trolling
incidences into a context to help deal with this problem, the Persuasion Continuum
is presented in Figure 1. This shows how those with limited expertise (i.e. laypersons) are as susceptible to making an instance decision to troll as those with a lot of
experience (i.e. authorities). Those users who have a limited amount of knowledge
on trolling (i.e. tactical trolls) manifest as Plebeians, as they know enough to have an
opinion, but not enough to actually realize what they know. In order to take the next
step towards becoming an expert, they need to overcome the aspiration trap which
is where because of their circumstance they are not able to achieve what they want.
Clearly the closer to Domination Trolling one gets, the less it is possible to unintentionally injure oneself through ones own actions, as the more carefully planned
and considered actions become less viewed as minor lapses of judgment. This Domination type of troller has been quite prominent in the media, such as where a website was set up to mock the miners who died in the Gleision mining tragedy in Wales
in 2011. From Figure 1, it is possible to see these four types of trolling extending from
the middle where the trollers are less directed towards planning their trolling, called
involvement and have less awareness of the consequences of their actions because
of being highly absorbed into their activities, called flow.12 The higher the flow the
more likely someone is to perform a particular action, and the lower the involvement then the less time they have to consider the consequences of their action (in the
case of playtime trollers) or the lower the effort required to perform something they
know the consequences of (in the case of domination trollers).

The Mechanisms and Limitations of the WGs Anti-Trolling

Powers
Factors known to affect school attendance not only include flame trolling but also
drug and alcohol abuse, the rise of disaffected gangs including girl or mixedgroup gangs, antisocial behaviour, and racism.6 Initiatives, such as requiring
schools to have written school policies on binge drinking are associated with
less frequency of the problem,13 in particular among boys and pupils with lower
12
13

M Csikszentmihalyi Flow: The Psychology of Optimal Experience (New York: Harper & Row, 1990).
C Desousa et al. School Policies and Binge Drinking Behaviours of School-Aged Children in WalesA
Multilevel Analysis [2008] 23(2) Health Education Research 259.

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school attachment, suggesting effectiveness of intervention by the WG.

However, the lack of initiative by the WG in relation to flame trolling is notable
by its absence.

Regulation of Malicious Communications and Data Misuse

The Malicious Communications Act 1988, which was successfully used against
Sean Duffy who harassed Natasha MacBryde and her family after her death,
offers a basis for the WG to tackle the problem of flame trolling. Section 1(1)
of the MCA states someone is guilty of an offence if they send to another
person, (a) a letter, electronic communication or article of any description] which
conveys(i) a message which is indecent or grossly offensive, (ii) a threat, or
(iii) information which is false and known or believed to be false by the sender;
or (b) any article or electronic communication which is, in whole or part, of an
indecent or grossly offensive nature, but only where the purpose in sending it is
that it should [...] cause distress or anxiety to the recipient or to any other person
to whom he intends that it or its contents or nature should be communicated.
In February 2006, the Child Commission for Wales, Peter Clarke, was reported
as saying that he was disappointed with the rate of progress in tackling bullying
and abuse and called for better education to protect children against internet
abuse and to raise parents awareness of the issue. The WG has nearly sole
authority over education and training, including in vocational, social and physical training and the careers service and the promotion of advancement and
application of knowledge.
The WG has committed itself to a skills curriculum which gives flexibility in
content to individual schools priorities, while helping make pupils independent
learners who develop their own sense of truth throughout life regardless of
what they are told at school. Research has already shown that a skills curriculum
focused on improving social and behavioural skills can improve the outcomes of
young people from a minority ethnic background.14 The political impetus for
tackling bullying at a Welsh Assembly level is not absent according to reports in
the Western Mail = the national newspaper of Wales. Following the publication
by the Children Commissioner, Ken Reid of the National Attendance and Behaviour Review,15 where it was recommended that action should be taken as soon as
pupils start to show signs of behaviour problems, this was welcomed by politicians across the spectrum. Conservative education spokesman Alun Cairns said,
School discipline is at the heart of a good education system. Children must learn
respect for others and for authority at an early age. Liberal Democrat spokeswoman Kirsty Williams, said, Discipline should not be about punishmentbut
should focus primarily on creating a teaching environment, which prevents
14
15

EL Foster Implementation of a Social Skills Curriculum to Reduce Behavioral Problems of African American
Boys in Elementary Classroom Settings (eBook edn, Bloomington, IN: Xlibris Corporation, 2011).
K Reid The National Behaviour and Attendance Review (NBAR) in Wales: Findings on School
Behaviour from the Professional Perspective [2009] 14(3) Emotional and Behavioural Difficulties 165.

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unruly behaviour and bullying from taking place. Labour education minister,
Jane Hutt, said, We will now need to assess how the recommendations can build
on our other key initiatives, such as the school effectiveness framework and 14-19
Learning Pathways to ensure that we are putting in place positive changes which
will make a real long term difference to education in Wales.
Following this, the WG accepted took action to increase the training and
professional development needs of teachers and local authority staff in behavioural management and school attendance.16 For the first time, coordinated new
training and continuing professional development programmes on behavioural
management and school attendance were being introduced in Wales. This sort of
approach is easily transferable to attacking problems like flame trolling.
Not all education on trolling need take place in educational establishment,
however. Launching the WGs Right to be safe advertising campaign17 as part
of The Violence Against Women campaign in June 2010, Social justice minister
Carl Sergeant said, No forms of violence or abuse, be it verbal, physical or
mental, should be tolerated. Everyone has the right to lead a safe and violencefree life and I am committed to doing everything I can to make this happen. This
shows that legislation is not the only weapon at the WGs disposal as there are
many other means for them to tackle social issues such as the bullying associated
with flame trolling.

Regulation of Improper Use Public Electronic Communications Services

The Western Mail reported in June 2005 of the case of a man who was caught in
the act of accessing sexual images on the Internet at a library in Llanelli. The man,
it was reported, was since banned from all libraries in Carmarthenshire. Such
improper use of a public electronic communications network is prohibited
under section 127(1) of the Communications Act 2003 (CA). This creates an offence
whereby someone, sends by means of a public electronic communications network
a message or other matter that is grossly offensive or of an indecent, obscene or
menacing character; or causes any such message or matter to be so sent.5
The WG has nearly unfettered powers to regulate libraries in Wales. It also has
powers to provide welfare advice to courts, representation and provision of
information, advice and other support to children ordinarily resident in Wales
and their families, and Welsh family proceedings officers. So if, as was suggested
in the above article, that the grossly offensive and indecent images accessed by
the patron of the library in Llanelli had also been found by children, then the WG
following the bringing into force of Part 4 of the GOWA2006 could have made
legislation regulating libraries. For instance, it could have made a law requiring
16
17

K Reid Tackling Behaviour and Attendance Issues in Schools in Wales: Implications for Training
and Professional Development [2011] 37(1) Educational Studies 31.
A Matczak, E Hatzidimitriadou, and J Lindsay Review of Domestic Violence Policies in England and
Wales (Kingston, GB: Kingston University, 2011).

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local authorities to take action to enable prosecutors to take action against those
who committed an offence under section 127 of the CA to bring prosecutions
forward, such as in the form of enabling the collection of evidence. It could also
ensure that local authorities provide additional support to children who are
attending court during such proceedings, as well as information needed to
ensure successful prosecution. One such document that could form part of this is
the Respecting Others guidance documents18,19 that the WG published in 2003
and again in 2011. This document sets out what action should be taken by schools
in relation to bullying, though not cyberbullying specifically. It could also be
used by court authorities to determine whether a school breached their duty of
care, as referred to in the document.

Regulation of Harassment
The main piece of active legislation covering harassment in general is the Protection from Harassment Act 1997. Section 1(1) of this Act mandates that a person
must not pursue a course of conduct(a) which amounts to harassment of
another and (b)which he knows or ought to know amounts to harassment of the
other. Whilst the WG has no powers to extend the scope of this Act on a criminal,
it does have powers to deal with the health consequences of offences that fall
within it. For instance, the GOWA2006 grants it health-related powers to assist in
the Prevention, treatment and alleviation of disease, illness, injury, disability
and mental disorder .
It is known that Internet abuse can have a huge impact on the mental health of
users and also lead to psychiatric injury.20 In relation to Wales, it was reported in
the South Wales Evening Post in September 2004 that 59 per cent of the Welsh parents questioned in a survey did not agree with the statement: the internet is dangerous for children. In the article, a spokesman for Childnet said The issues of
safety, privacy, on-line predators and cyberbullying are sometimes complex, both
technically and psychologically, and parents can struggle to keep up. In contrast,
it has been shown that ensuring young people have healthy minds is essential promoting emotional health and well-being in school and combating flame trolling.3

Regulation of Anti-Social Behaviour and Sex Crimes

The WG has limited legislative competence in relation to anti-social behaviour
and sex crimes, despite their prevalence in Wales. In the case of R v Gray (2001) as

18
19
20

NAfW, Respecting Others: Anti-Bullying Guidance (National Assembly for Wales Circular 23/2003,
Cardiff, GB: Welsh Government, 2003).
NAfW, Respecting Others: Anti-Bullying Overview (National Assembly of Wales Guidance document
050/2011, Cardiff, GB: Welsh Government, 2011).
J Morahan-Martin, Internet Abuse [2005] 23(1) Social Science Computer Review 39.

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reported in the Western Mail in February 2001, the accused was found guilty of a
series of sex offences against a 14-year-old boy he befriended on the Internet. The
offender, Anthony Gray, aged 30 years at the time, chatted with the boy over
20 times before sexually assaulting him in April 2000.
One might first assume that because Schedule 7 of GOWA2006 prohibits the
WG in making legislation that affects the law enforcement powers of local
authorities, one might assume that they are powerless to deal with such a horrendous case. They do, however, have a number of powers for this form of flame
trolling. The WG have powers over the protection and well-being of children,
and the care of children, young adults, vulnerable persons and older persons,
including care standards. In Wales, these care and welfare arrangements are carried out by local authorities in the form of county borough councils, who have
huge powers in relation to trolling granted from central government.
One specific set of powers that local authorities have that could be used with
new legislation by the WG are those surveillance powers granted by the Regulation of Investigatory Powers Act 2000. These powers have already been used by
Dorset County Council to ascertain whether or not families who had applied to
send their children to particular schools were in fact living in the catchment
area.21 This suggests that the WG could pass primary legislation that requires the
care authorities at local authority level to snoop on the computers of children in
the area where they believe their well-being is at risk. This could extend tapping
into the mobile phones of anyone believed to be putting childrens well-being at
harm, including those sending offensive messages via text, as discussed earlier.
Even though the WG cannot interfere with a local authoritys law enforcement
powers or make laws in relation to anti-social behaviour, it can make provisions
in terms of guidance in how to use these powers to tackle flame trolling, but not
mandate them to do so beyond Home Office guidance from London.

Discussion
Internet abuse is not a new problem. The term trolling has been in existence for at
least three decades. What is referred to as flame trolling has also gone by other
names, including most prominently cyberbullying. This has been shown to be a
significant problem in Wales in terms of school attendance and in some cases
safety at football matches. In 1998, Wales was granted a legislature called the National Assembly for Wales, which since 2006 has had its own executive, now called
the WG. The WG has a number of powers in the area of education, health, and
social services that can be used to tackle or treat flame trolling. The powers granted
to local authorities in relation to crime prevention, such as fixed penalty notices
and anti-social behaviour orders could be encouragedthough not mandated
to be used by the WG in providing remedies for this type of Internet abuse.
21

T Bryce et al. Biometric Surveillance in Schools: Cause for Concern or Case for Curriculum? [2010]
42(1) Scottish Educational Review 3.

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Clearly as criminal law is not devolved in Wales, then greater co-ordination is

still needed with authorities in the rest of Britain. The Serious Organized Crime
Agency (SOCA) may be a place to start for the WG as this body has extensive
powers to form partnerships and gather evidence. Ring-fenced budgets specifically
for Wales outsourced to SOCA could be more effective than increased community policing. In essence, the WG needs to look beyond the bare bones of the
Government of Wales Act 2006 and seek out innovative means in which it can
tap-into existing crime-fighting and social welfare arrangements to meet the
challenges of the information age.