THIS WEEK, THE Oireachtas Joint Committee on Transport and Communications starts hearings on Social Media and Cyberbullying. The Joint Committee’s press release makes clear what its members have in mind: “The Committee agreed to explore, over a series of hearings, how the irresponsible use of social media channels might be curbed”. That the Committee is considering the “curbing” of social media use, before it has heard any evidence, should be a cause for concern for us all.
Ireland is not a place where one needs permission to speak. All our statements, private or public, are presumed to be lawful unless the law says otherwise. While there may be consequences for certain speech, no advance “vetting” is required to make a contribution to a debate. Before social media, media organisations operated as a filter on which voices were heard in the public debate and which were not. In the less formal places of discussion, the pubs and office water-coolers, no such prior filtering existed. Opinions were expressed there which were far more scathing of public figures than anything appearing in print or broadcast. With the growth of social media, public figures are far more exposed to these scathing opinions than in the past.
We are in the fourth decade of the internet’s existence. However, in some respects, in Ireland at least, the internet only broke through to the cultural mainstream since the rise of the smartphone. What might be termed “the Irish internet community” was largely made of “digital natives”, people who have learned appropriate online behaviour over many years’ immersion in the norms of the community. At the same time, the law kept reasonably abreast. However, many hundreds of thousands of newer users, less attuned to these norms, have flooded online in recent years, leading to a wrong belief, that “anything goes” online.
This perception has twin dangers. It lulls internet users into behaving in ways they would not dream of behaving in daily life. It also gives politicians and even gardaí the mistaken impression that no laws exist to deal with such behaviour. The internet is not, as some apparently believe, an unregulated ‘Wild West’. In fact, social media is already as much regulated as any other speech and, in some cases, more so.
The Non-Fatal Offences Against the Person Act creates the offence of harassment, which is committed where a person “seriously interferes with the other’s peace and privacy or causes alarm, distress or harm” to them by “persistently following, watching, pestering, besetting or communicating with him or her”. The offence applies to online as well as offline behaviour, and has been used in the past in response to unwelcome and abusive emails.
Placing personal information about a person online without their consent will be a breach of the Data Protection Act (DPA). This includes the posting, without consent, of photographs or of video recordings. The recent unfortunate case where video was posted online of a young girl being indiscreet in a Temple Bar fast food outlet, was clearly covered by the DPA. Unfortunately, the video went viral, attracting much crude and misogynistic commentary. Even those who referred to the video only to denounce it played a part in bringing it to a larger audience, and thus worsened the breach of privacy. Had the girl or her parents been better advised, they might have been able to discreetly have the video removed from YouTube by relying on her rights under the Data Protection Act.
Unfortunately, Data Protection, a massively important protection for the modern citizen’s privacy, is not widely understood. This is due in part to a lack of funding for the Office of the Data Protection Commission. Were it properly funded, it would be better able to help ensure that privacy rights could be availed of by the average citizen as well as by the celebrity.
Section 4 of the Prohibition of Incitement to Hatred Act, 1989 provides for an offence of “preparation and possession of material likely to stir up hatred” on grounds of race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. The section was relied on in a prosecution in Killarney District Court, when a 27-year-old Kerry man published materials on a Facebook page that were threatening and abusive to the Traveller community. The case was dismissed; on the stated grounds that there was a reasonable doubt that there was an intent to incite hatred.
This finding was somewhat bewildering, as the section provides that an offence is committed where the stirring up of hatred is intended, or is likely. The offence act is technology-neutral, as appropriate to online expressions of hatred as it is to those offline. Any weakness in the decision in the Kerry Facebook case does not stem from the inadequacy of the legislation. That decision, whatever the reasons for it, is an unfortunate one, in that it is likely to have a chilling effect on any further prosecutions.
According to the Defamation Act, 2009, and to settled case law, a defamatory statement means “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”. However, courts have long taken the view that crude and vulgar abuse is not capable of being defamatory. This type of abuse is all too often seen online. However, such abuse may, as outlined above, constitute a criminal offence. As a general rule then, if you tell lies about someone online, you could find yourself on the end of a very expensive lawsuit.
It is widely believed that people on the internet are anonymous and untraceable. This is not so. In many cases, real names, or easily understood variations thereof, are used as handles. In others, the internet itself provides the tools to identify an individual by context. For example, people writing under a pseudonym will often link to their own Facebook or LinkedIn accounts, or to other accounts with photos and other details about work and family, making their identity easily discoverable.
Where actual anonymity exists, legal remedies are available. An order may be sought from the Courts to unmask anonymous or pseudonymous persons on the internet. These orders are typically made against hosts of internet platforms, requiring them to disclose IP number from which the abusive comments were made, and then against internet Service Providers (ISPs), requiring them to identify the subscriber linked to that IP number. Just last year, an order was made against Boards.ie, at the application of an exploration company which alleged defamation by certain pseudonymous persons.
Unless the anonymous person is engaged in actual wrongdoing, anonymity is not an inherently bad thing. In some cases it serves a socially useful purpose. Throughout history, authors have found it necessary to adopt alternative names for their public statements. In 2010, anonymous blogging alerted us to problems within the Irish Red Cross which might never have come to light had the blogger not been able write under a pseudonym. Indeed, where the current government is committed to the introduction of “whistleblower” protection legislation, any attack on the right to anonymity would seem to be a step backwards.
Meanwhile the Minister for Communications, Energy and Natural Resources Pat Rabbitte, has suggested in recent days that he will amend S.13 of the Post Office (Amendment) Act, 1951 to include all forms of electronic social media. That section currently says that a person will be guilty of an offence if he or she
“(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or
(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person―
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause”
S.13 was intended to deal with nuisance phone calls. It has existed in its current form since 2007, and it excluded internet communications for very specific reasons. Phonecalls and texts are direct person-to-person communication. A menacing call or text is a very intimate form of harassment. A tweet, Facebook posting or blog post, being viewable by a far larger number of persons, lacks this personal intimacy. Anyone is likely to stumble onto something online which they find grossly offensive.
Broadening the scope of this offence would create potential criminal liability for any person placing any material on the internet, whether it was aimed to one person or to nobody in particular. It would make everything on the internet, including the entire output of RTÉ, subject to an offensiveness test. It would also criminalise any form of political art, which often is made with the explicit intention of causing offence, or at least annoyance. These are only a few of the almost infinite absurdities that could potentially be caused by such an amendment. More importantly, it would be a completely unnecessary attack on free speech.
Laws don’t stop things from happening, they only make them illegal. We already have all the laws we need to deal with social media abuse. What we need now are serious attempts to deal with issues like bullying and suicide. Whipping up moral panic about the internet is not serious. Of course it would be nice if people were always polite and civil to each other. But manners are not the same as laws, nor should they be.
Fergal Crehan is a barrister. This article is based on the submissions of Digital Rights Ireland to the Oireachtas Joint Committee, the full text of which is available here.
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