On 19 November 2014, the Irish Law Reform Commission ("LRC") published an Issues Paper on "Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying". The Issues Paper offers a chance for the public and interested parties to submit their views on whether Irish criminal law ought to be changed to address the issue of cyber-bullying.
The consultation process is open until Monday 15 January 2015, further information and details on how one can make a submission are available on the LRC Website.
Why is reform on the table?
The law in this area was developed before the widespread adoption of the internet, so there are no specific rules dealing with cyber-bullying or online personal attacks. As is often the case when attempting to address legal issues arising out of new technologies, the new challenges have to be tackled, as far as possible, within the existing legal framework.
The LRC paper considers both the adequacy of existing law and a proposal for the creation of a new criminal offence. In doing so, the LRC points to new challenges which it believes are associated with online activity – a sense of disconnection from the subjects of a user's activity, perceptions of anonymity, and the magnification of harm due to the instantaneous, widespread, permanent nature of online communications.
The LRC has specifically looked at the existing law on criminal harassment (under Section 10 of the Non-Fatal Offences Against the Person Act 1997) and identified three issues for discussion:
i. Certain malicious online activity may already be prosecuted as criminal harassment, and a number of cases have been brought. However, the LRC suggest that an express inclusion of 'cyber-harassment' may be a significant sign of commitment to tackling online bullying and may increase reporting and prosecution of such cases.
ii. The LRC also noted that the offence does not address 'indirect' cyber-harassment, i.e. activities about a person but not targeted at them – for example, spreading harmful information to others or on a public website.
iii. Due to the borderless nature of the internet, the LRC suggest that there may be need to extend the offence extra-territorially – when either the victim or perpetrator are located in Ireland.
Notably, under the current law, harassment requires 'persistence' which may be either a series of events or a single, but continuous, incident. An isolated incident generally does not constitute 'harassment' under Irish criminal law. This means that the one-off publication of private information, designed to humiliate or denigrate an individual, may not be caught by the current law.
Given this state of affairs, the LRC is examining whether a new offence criminalising one-off serious interferences with a person's privacy through cyber technology ought to be created.
This offence would be committed where a person intentionally or recklessly seriously interfered with the privacy of another, through online technology, in circumstances where there was no public interest in disseminating the material.
Aside from the law of harassment, the LRC report also looks at the existing rules around hate speech. The report points out that online speech can be rapidly disseminated and asks for submissions on whether the existing law adequately deals with online hate speech.
What's the background to this discussion?
A number of politicians, officials and interest groups have called for reform of the law in this area, particularly following a number of tragedies that have been associated with online bullying. Given this background, we expect that the LRC's call for a considered discussion of the relevant law will be welcomed by many. The LRC will likely receive quite a number of submissions that may shape future legislative proposals in this area.
More broadly, these important discussions highlight the challenges, both legal and societal, associated with keeping pace with changes in technology and the ways in which people communicate. A careful and appropriate balance will need to be struck between the protection of vulnerable persons, free speech and the protection of privacy.
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