I WANT TO address Lorraine Higgins recent comments about her online malicious communications bill.
I’ve been involved with Boards.ie for 17 years since setting it up and I remain a director of the company to this day. I’ve seen more than my fair share of abuse, vitriol and hate in my time. Often directed at myself or the staff here. Let’s get one thing straight from the start, the abuse Senator Higgins has received is utterly unacceptable. End of.
My problems lie with Senator Higgins’ bill. It is ill conceived and ham-fisted. It tries to deal with complex social problems through a blunt and poorly defined legal instrument.
Let’s keep this fact based and look closely at the proposition. The bill consists of two main parts.
The photo of you cuddling your ex
The first part addresses encouragement to suicide and self-harm along with a poor attempt to cover “revenge-porn”. It’s hard to argue with the intention of any of that. Actually look closer, “explicit content” is defined as “images, video or sound of a sexual or intimate nature”. Intimate? Hhmmm… that photo of you and your ‘ex’ cuddling that you posted last year on Facebook? Surely that’s not… nah, that’s daft. No one would… would they? Would (s)he?
Victims of revenge porn want a method of resolution. Some way to get the stuff taken down. This bill offers nothing like that. The rest of us want protection from bad actors and broad, ill-defined laws. Laws I would contend, should rarely rely on the phrase “surely that’s not what they meant”.
The second part is where the bill moves from “a bit daft” to “proper shouty crackers”. Bear with me here, this will blow your mind. Under the heading “Malicious Electronic Communications” we find the definition of “malicious” to be an “electronic communication regarding another” which “intentionally or recklessly causes alarm, distress or harm to the other”.
In legal terms, we just lost cabin pressure.
Malicious messages shared online
Now admittedly you must “persistently share” your malicious message but a definition of “persistently” was not included in the bill. Then again neither were definitions for “Alarm”, “Distress” or “Harm”.
Look closer though. “Electronic communication regarding another”. Not “to another”… just “regarding another”.
This isn’t about someone like Senator Lorraine Higgins being ‘sent’ a distressing or alarming message. This covers any message regarding someone anywhere public by anyone to anyone.
Better not alarm or distress or harm
This bill prioritises other peoples’ “alarm or distress” over your communications not just TO them but also ABOUT them. Don’t like what Joan Burton is doing with the water charges? Want to write something on independent media about what you think of that? Better not alarm or distress or harm her!
This is the core of my issue with the bill. It’s not just that almost all the agreeable parts of it are already covered by other laws. It’s not just that it’s utterly unenforceable with our current justice system. It’s not just that it’s so vague and fluffy. It’s that it’s so ill-defined and over-reaching that its interpretation will inevitably have to be left to judges.
Leaving anything to judges is a bad idea in general. This overly broad and poorly worded bill is a god-send to people who like to bully others into silence. Ironic that eh?!
Would Mairia Cahill have been allowed to hammer her story out there under this new law? Possibly yes. Could she have been sure of that? Hell no! Could a lawyer build a case around it causing distress and harm to Gerry Adams? You betcha!
Issues already covered by law
This bill will do very little to fulfil its stated aims. Where it does get it right its already covered by existing law (law which is already not being enforced). Where it gets it wrong (and a cynic might say deliberately wrong since it will massively benefit politicians as it currently is written), it creates a chilling effect with a dreadful piece of pseudo legalese.
Please kill this bill. In its place the Dáil could action the recent report from the Internet Content Advisory Committee rather than nonsense from loose-cannon Senators.
If you want to read about this bill and cyber-bullying I can recommend no one better than Dr Ciarán McMahon who works in CyberPsychology for the Royal College of Surgeons, Fergal Crehan who is a barrister at law in this area and Dr TJ McIntyre, a lecturer in the School of Law, University College Dublin and chairman of civil rights group Digital Rights Ireland. His views on it are here.
Tom Murphy is a founder of Boards.ie, a site recently described in the Irish parliament as a “legal subversion of the state”. He is a frequent commentator on online social issues. He is old, narky and shouts at lawyers to get off his lawn. He writes his own bios.
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