Law Reform Commission publishes Issues Paper on Cyber-crime affecting privacy, including cyber-bullying
Wednesday 19th November 2014: The Law Reform Commission has today published an Issues Paper on Cyber-crime Affecting Personal Safety, Privacy and Reputation, including Cyber-bullying. The Issues Paper seeks the views of interested members of the public on this important matter which has the capacity to affect nearly everyone. Specific questions are posed which can be answered online or otherwise. The project forms part of the Commission's Fourth Programme of Law Reform, which was approved by the Government in October 2013. The Issues Paper is on the Commission’s website at www.lawreform.ie.
BACKGROUND
It is important that laws be adjusted to address new developments in society. Almost everybody uses the internet in some way in their ordinary life. The emergence of cyber technology has transformed how we communicate with others. Using basic mobile technology, individuals can now publish online instantly and to very large audiences, including through social media. This has had positive effects in allowing us to remain connected with each other by text and visually. However, there have also been negative consequences, primarily because it is possible to publish online not only instantly and to a huge audience, but also anonymously, increasing the potential for harmful effects caused by interferences with a person’s privacy. This is why the views of the widest number of people (such as IT professionals, lawyers, psychologists, teachers, parents) as well as ordinary users of all ages are needed to ensure that laws are appropriate and effective.
THE MAIN ISSUES AND QUESTIONS RAISED IN THE ISSUES PAPER
Should the offence of harassment include a specific reference to cyber-harassment?
Section 10 of the 1997 Act creates the offence of “harassment” (often referred to as “stalking”). This makes criminal certain interferences with privacy where behaviour is “persistent” or continuous. This means that there must be either (a) a number of separate incidents or (b) a single but prolonged incident. Section 10 has already been used in the cyber setting, because even though it does not refer specifically to cyber-harassment it refers to harassing a person “by any means, including by use of telephone.” The Issues Paper asks whether section 10 should be amended to refer specifically to cyber-harassment.
A more difficult problem is that section 10 may not apply to certain forms of indirect cyber-harassment, such as setting up fake profiles, where the harmful behaviour is directed towards a person other than the victim but concerns and harms the victim. The Issues Paper asks whether section 10 should be amended to include indirect cyber-harassment.
People may be subject to cyber-harassment from perpetrators or sites located outside the State and perpetrators based in the State may harass individuals based outside it. It is doubtful that section 10 applies to such extra-territorial cases. The Issues Paper asks whether section 10 should be amended to apply extra-territorially, where either the victim or the perpetrator is based in the State.
Should there be a new offence that would make criminal once-off serious interferences with another person’s privacy using cyber technology?
Because the offence of harassment requires persistent behaviour, posting content online by a single upload, even where it seriously interferes with a person’s safety or privacy, will not amount to harassment. The question is whether the permanence and global reach of material when published on the internet makes an interference with privacy especially damaging and difficult to limit and is comparable to offline persistent or continuous harassment.
The Issues Paper therefore asks whether there should be a new offence where: (a) there is a serious interference with privacy, (b) the content is disseminated online with the potential to cause serious harm because of the permanence and global reach of internet publication, (c) there is no sufficient public interest in publication online, and (d) the accused intentionally or recklessly caused harm.
Does current law adequately address online hate crime?
The Prohibition of Incitement to Hatred Act 1989 is the main law in this area, and the EU Commission has stated that this needs to be updated to bring Irish law into line with the requirements of the 2008 EU Framework Decision on combating racism and xenophobia. The Issues Paper asks whether, where cyber technology and social media are used, existing law adequately addresses such hate speech activity.
Are the penalties for offences for cyber-harassment and related behaviour appropriate?
Harassment carries a sentence on conviction of up to 7 years, and the Issues Paper also sets out a list of related offences and the maximum penalties that apply to them.
Are existing civil law remedies adequate to protect against cyber-harassment and to safeguard the right to privacy?
A key issue is how a victim can obtain readily accessible and effective civil remedies, such as an early "take down" order. The Issues Paper asks whether the existing civil law remedies are adequate, including how they could be made effective in relation to websites located outside the State.
For further information/interview with a Commission representative contact:
Winifred McCourt, McCourt CFL T: 087-2446004
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 190 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing reform proposals, available at www.lawreform.ie. The Commission has asked that submissions and comments on the Issues Paper, which can be made online, by email or by post, should be completed if possible by Monday 19th January 2015.