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Web-surfers and online harm

01 Apr 2022 / technology Print

Wipe out

Are web-surfers in Ireland – particularly children – sufficiently protected by law from harassment and online harm? Clare Daly examines the existing legislation, surveys the missed opportunities, and warns about the freak waves that lie ahead 

It is clear that legal remedies are required to tackle harmful content online. Cyberbullying and online harassment have been increasing in ferocity and frequency over recent years, particularly during lockdown. Studies have shown that harmful online interactions and incidents can cause very real, lifelong harm to the victims. Irish legislation has been evolving in recent times to meet a chorus of calls for reform.

The Harassment, Harmful Communications and Related Offences Act 2020 came into law on 10 February 2021. The act creates new offences in relation to harassment and harmful communications, both online and offline, and provides for the anonymity of victims of those offences. Known as ‘Coco’s Law’, this act prohibits image-based abuse and carries significant penalties. In terms of cyberbullying, this law also provides stronger measures against harassment.

While this legislation is necessary and welcome, there is still much to do to make the online world safer for all users. The emergence of widely available internet access, availed of by old and young alike, has created huge opportunities for knowledge sharing and information.

Such opportunity, however, comes with its own threats and risks, particularly for our young people. As cyberpsychology expert Prof Mary Aiken points out: “The internet was designed on the premise that all users are equal – this is not true, some users are more vulnerable than others, and children are particularly vulnerable.”

Head in the sand?

It has been said that cyberbullying is unlike anything faced by previous generations, because children can be contacted by their oppressors at every location – even within the safety of their own homes.

The relentless and borderless nature of cyberbullying and harassment results in a unique kind of torment. With 93% of children surveyed saying they own their own smart device, and 84% of those aged eight to 12 on social media, the breadth and scope of exposure is concerning.

Research by Cybersafe Kids revealed that 29% of pre-teen children reported at least one bullying experience. A third (32%) of children using social media are posting videos of themselves online, and a third are interacting with strangers online. A quarter of children said that they had come across content online that upset or scared them.

Online harms are not limited to children. Recently, one in five adults reported that they have experienced harm online or on social media. Research carried out by the Department of Justice has found that one in 20 people claim to have had an intimate image of themselves shared online or on social media without their consent. These are sobering statistics. 

In hot water

The Non-Fatal Offences Against the Person Act 1997 currently provides the central mechanism for dealing with cyberbullying behaviour, with section 10 prohibiting the harassment of another “by persistently following, watching, pestering, besetting or communicating with him or her” such that “by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other”.

The recent Supreme Court decision of DPP v Doherty held that harassment can include communication not directly addressed to, or sent to, a victim. Subsequently, section 10 was amended to provide for indirect harassment, that being persistent communication about a person. Accordingly, indirect online posts being made about someone (as opposed to directly to a victim) could come within the ambit of the offence.

The offence of harassment is designed to capture persistent communications, and one-off posts online would not fall foul of the legislation, irrespective of the capacity of such a post for duplication, permanence, and potential global reach.

The Harassment, Harmful Communications and Related Offences Act 2020 provides for two new offences to deal with the non-consensual distribution of intimate images.

Section 2 prohibits distributing, publishing, or threatening to distribute or publish an intimate image without consent with intent or recklessness as to whether harm is caused, including psychological harm.

It is irrelevant that a person may have consented to the taking of an image if it is subsequently published or distributed without their consent. This offence will carry a maximum penalty of an unlimited fine and/or seven years’ imprisonment.

Section 3 creates the offence of recording, distributing, or publishing an intimate image without consent. This is a strict-liability offence that attracts a maximum penalty of €5,000 and/or 12 months’ imprisonment.

The posting of intimate images online, without consent, often arises after an intimate relationship has ended. Significantly, that act provides that it will be an aggravating factor for the purposes of sentencing if the perpetrator was in an intimate relationship with the victim, as inserted by this act into section 40(5) of the Domestic Violence Act 2018.

The act also provides for the anonymity of the victim. Notably, where a child under the age of 17 is charged with an offence under this act, the consent of the DPP is required before proceedings shall be taken.

Section 4 creates the offence of distributing, publishing, or sending any threatening or grossly offensive communication about or to another person, with the intent to cause harm. This section will criminalise one-off offensive communications. It is applicable to a communication sent online or offline, and will carry a maximum penalty of a fine and/or two years’ imprisonment.

‘Grossly offensive’ communication is not defined in the legislation. However, it is not a new term. For instance, grossly offensive, or indecent, obscene or menacing communication via telephone is prohibited by the Post Office (Amendment) Act 1951 (as amended by the Communications Regulation (Amendment) Act 2007.

Similarly worded legislation in Britain, and ancillary guidance, recommends that grossly offensive communication is one which is beyond that which is tolerable in an open and diverse society.

Missing the boat?

Perhaps there were missed opportunities within this act to criminalise other forms of sexual harassment that don’t appear to be covered by existing legislation.

For instance, Britain’s Online Safety Bill contains a new criminal offence of ‘cyber-flashing’, defined as the sending of unsolicited sexual images.

Section 45 of the Sexual Offences Act 2017 in Ireland criminalises exposure and offensive conduct of a sexual nature. The offence arises where the person engaged in this behaviour in a public place – defined as “any place to which the public have access whether as of right or by permission, and whether subject to or free of charge”– which, it appears, is intended to apply to physical spaces only.

Further, child-protection concerns arise in terms of increasing reports of older children and teens engaged in sending sexual images/messages to their peers, referred to as ‘sexting’.

The ending of a relationship and the subsequent sharing of intimate images without consent can be incredibly distressing to a person at any age but, for teenagers, the impact can be devastating.

It is concerning that the 2020 act does not seek to amend the schedule of offences pursuant to the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012.

This act provides that, where a person knows or believes that a certain scheduled offence has been committed against a child, and he has information that he knows or believes might be of material assistance, he must disclose that information as soon as it is practicable to the gardaí. Failure to do so, without a reasonable excuse, is a criminal offence.

The schedule of offences to the act have not been expanded upon to capture an offence under the 2020 act. Thus, an offence under the 2020 act does not fall under the category of offences that shall be disclosed.

Uncharted waters

There has been much reform in this area, with more changes now proposed. The Online Safety and Media Regulation Bill proposes to create a regulatory framework for online safety, providing oversight on how online services deliver and moderate user-generated content.

This will be overseen by an Online Safety Commissioner, who will set out binding safety codes for how online services will address the spread and amplification of certain defined categories of harmful online content. Such categories include content that is a criminal offence to share, serious cyberbullying material, material promoting eating disorders, and material promoting self-harm and suicide.

There have been calls for the bill to go further and provide for an individual complaints mechanism within the scheme. For now, criminal legal sanctions seek to address online harms brought about by individuals, but the reasonability of online service providers must also be brought to bear.

The proposed scheme represents a sea change in terms of the current online safety regime in Ireland – being one of the first economies to attempt to regulate these powerful companies.  

Look it up

CASES:

LEGISLATION:

Read and print a PDF of this article here.

Clare Daly
Clare Daly is a solicitor in Comyn Kelleher Tobin Solicitors, practising in the areas of child law, litigation and data protection.