This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com

Carol Lynch, Ph.D. Candidate, Centre for Crime Justice and Victim Studies, School of Law, UL // Original article

Introduction

The harmful effects of bullying behaviour has become part of the public consciousness in recent years due in large part to the number of tragic cases of teen suicide and to the fact that ‘the internet and new communication mediums have taken a central place in all social spheres amongst children and young people.’ Cyberbullying behaviours are currently open to prosecution in this jurisdiction under legislation including the Non-Fatal Offences Against the Person Act 1997 and the Post Office (Amendment) Act 1951, however, successful prosecution of offenders is not consistent. Difficulties in prosecution stems from differences between the nature of online and offline bullying behaviours, in particular, the pervasive nature of online bullying and the fact that the laws currently being utilised were developed at a time when the internet was not conceived of.

The Irish legal system provides several mechanisms to deal with breaches of the law in this respect and cyberbullying is currently considered in terms of other criminal offences including harassment, stalking, threats, indecent conduct, extortion, blackmail and demanding money with menaces. Other offences include telecommunications offences, as well as offences under the Prohibition of Incitement to Hatred Act 1989, the Criminal Justice (Theft and Fraud Offences) Act 2001 and the Video Recordings Act 1989  which are becoming increasingly relevant, but where however, successful prosecution of offenders is inconsistent. For example, in the context of the internet, under the Prohibition of Incitement to Hatred Act 1989, it must be shown that the material has incited another to commit a hate crime, with Schweppe and Walsh (Combating Racism and Xenophobia through the Criminal Law) noting that in relation to hate speech, it is virtually an impossibility to illustrate that any person has been incited to hate following opinions that have been published on the internet.

The inconsistency in the number of prosecutions taken may also be as a result of the complexity in considering cyberbullying complaints, with the issue of anonymity proving to be a huge obstacle in the bringing of cyberbullying perpetrators to justice and which may also discourage victims from pursuing redress in the courts. Moreover, there does appear to be ‘a growing belief that relatively minor emotional distress can ground a legal action and that an increasing number of people are prepared to ‘have a go’. However, Teff (Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability) has contended that such risks have been significantly overstated; ‘[t]he case for an unqualified threshold for mental harm rests largely on the assumption that, as with physical injury, patently trivial claims would be discounted as de minimis and very few minor ones would be deemed worth pursuing.’

There have been calls for the enactment of legislation to encourage communication and co-operation between telecommunication providers and law enforcement in the disclosure of perpetrators’ identities as they attempt to remain anonymous. With that, the number of cases being brought before the courts is moderately increasing with victims and suicide victims’ families coming forward and calling for justice. The High Court recently granted court orders to the Irish-based oil exploration company, US Oil Gas plc to obtain the identities of those who had allegedly made comments online that were deemed to be defamatory and damaging to further capital investment. These comments were now in the public domain. US Oil Gas plc was permitted to gain access to the perpetrators of the on-line comments and in turn, demonstrated the High Court’s readiness on behalf of the Irish legal system to provide essential measures where the law has failed to do so. This decision by Mr Justice Roderick Murphy proffered a significant development for those wishing to acquire the identity of persons who post such comments on-line.

Harassment

Section 10 of the Non-Fatal Offences Against the Person Act 1997 currently provides the central mechanism for dealing with this cyberbullying behaviour. Section 10(1) makes it an offence for any person ‘without lawful authority or reasonable excuse, by any means including by use of the telephone, [to harass] another by persistently following, watching, pestering, besetting or communicating with him or her.’  It is important to bear in mind that the communication may be by any means and that what is illegal offline is also illegal online, for harassment is an offence no matter what medium is utilised to harass another.

Section 10 alludes to the nature of the harm caused, but questions arise as to whether it sufficiently and un-equivocally acknowledges the various levels of emotional harm caused to the victim by this behaviour and so therefore, whether or not it goes to the core of the problem. Bullying on social network sites where the posting of nasty comments about the victim occurs and where the perpetrator is not necessarily communicating directly to the victim, but instead to lots of mutual friends/contacts,  produces difficulties in that Irish law is not specific on this public element, as an act such as ‘pestering’ must be directly exchanged but with the element of communication taking many forms in that it can be either direct or indirect, verbal or visual and via any medium.

Communication offences

Since its first enactment, section 13 of the Post Office Amendment Act 1951 has been considerably amended with the most recent changes being brought into effect by the    Communications Regulation (Amendment) Act 2007. Malicious communication includes the making or sending of threatening, obscene or nuisance calls or messages as communicated by telephone and is prohibited under section 13 of The Post Office (Amendment) Act 1951 (as amended by the Communications Regulation (Amendment) Act 2007. It is an offence where such communication causes ‘annoyance, inconvenience or needless anxiety to another person, [via the sending] of any message that the sender knows to be false, or persistently makes telephone calls to another person without reasonable cause.’

Section 13 of the 1951 Act is confined to messages as sent by ‘telephone’ and while it incorporates text messaging, internet messaging or email is not expressly included, nor does the scope of this section appear to facilitate their incorporation. While obvious similarities exist between text messages and other forms of instant messaging in that people can now access various forms of messaging including email and social media sites via their smart phones, this section could perhaps be extended by interpretation or through a similar provision for communication via the internet. Such instances where the offence of harassment is deemed to have occurred via means other than the telephone would then be dealt with more effectively under section 10 of the Non-Fatal Offences Against the Person Act 1997 which is explicit in this inclusion of communicating with the victim ‘by any means.’

Conclusion

Despite the existence of a slew of legislative measures that may be employed in this context, concerns here have been raised as to their suitability, with the Irish High Court calling upon the legislature to ‘consider the creation of an appropriated offence under criminal law, with a penalty upon conviction, to act as a real deterrent to the perpetrator’. As the law currently stands, the most appropriate legislation in this jurisdiction is section 10 of the Non-Fatal Offences Against the Person Act, as utilised in an online context as it is in an offline context. However, the provisions of this Act perhaps fall short in its efficacy to catch all types of harassing behaviour as perpetrated online.

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