Report on Harmful Communications and Digital Safety heralded as much welcome response to challenges of cyber crimes
By Clare Daly
The Law Reform Commission has published the Report on Harmful Communications and Digital Safety¹ (LRC 2016). The emergence of widely available internet access, availed of both old and young alike, has created huge opportunities for knowledge sharing and information, but with such opportunity comes threats and risks, to our young people in particular. Cyberbullying, harassment, threats and revenge porn incidents can cause very real, life-long harm to the victims. Ireland’s outdated legislation in the area of cyberbullying and harassment in particular have led for calls by eminent children’s rights scholars for this void to be addressed, with Dr Geoffrey Shannon, the Special Rapporteur for Children, recently calling for a “robust legislative response”² to the issue of cyberbullying.
This new Report follows a lengthy consultation process, including two workshops facilitated by the Department of Children and Youth Affairs participated by children aged 13-17. Further, the Report follows an Issues Paper which was circulated in November 2014³.
The Report contains 32 recommendations including draft legislation, the Harmful Communications and Digital Safety Bill. The Report identifies a number of existing laws which address some of the types of harmful communications however the Report goes on to highlight areas where the law requires reform to evolve to changing risks.
STATUTORY DIGITAL SAFETY COMMISSIONER
The Report also provides for the appointment of a statutory Digital Safety Commissioner, with the primary role of promoting digital safety. The commissioner would encourage young people to engage in promoting a positive online identify and this would be carried out with educators and the Ombudsman for Children. In addition, the commissioner would be tasked with publishing a statutory Code of Practice on Digital Safety which would build on the existing ‘take down’ procedures which have been developed by the social media sites in response to litigation in this area. The Code would set out nationally agreed standards and efficiencies in the take down procedures.
ALTERNATIVE RESOLUTION: TAKE DOWN NOTICES
At present, civil remedies exist in relation to unwanted and non consensual online posts. However these civil remedies can be lengthy and costly as they require an application to Court where a post is not removed by the host site. The proposal now being raised includes an initiative whereby the code of Practice would include pre agreed timelines in which the social media company is bound to take down the offending posts pursuant to complaints received by a complainant. Where the social media company fails to remove same, the complainant has recourse to the Digital Safety Commissioner in the first instance, who can direct the site to comply with the standards contained in the code. Where this direction is not complied, the Digital Safety Commissioner can apply to the circuit court for a court order, thus it appears, from the drafts suggested herein at least, obviating the need of the complainant to engage in costly, stressful and time consuming litigation.
Notably, the Report provides for the creation of two new criminal offences whereby intimate images are posted online without consent. The first offence would deal with the intentional posting of intimate images online without a person’s consent, often after a relationship has broken down, in an attempt to shame the victim, so- called revenge porn. Another proposed law would criminalise the posting of secretly obtained intimate images or video online and target what the commission says is a new form of voyeurism often called “upskirting” or “down-blousing”.
The criminal sanctions following these offences are significant and the proposal provides for class A fines on summary conviction of up to €5,000 and/or up to one year in jail, or, on indictment, an unlimited fine and/or a jail sentence of up to 7 years imprisonment. The Report also recommends that the voyeurism offences, referred to as “upskirting” or “down-blousing” could incur a maximum fine of €5,000 and or up to six months in jail.
The Report recommends amending the legislation which currently exists to deal with harassment, being s.10 of the non fatal Offences Against the Person Act 1977, to ensure that the legislation includes online activity, including the creation of fake profiles, and, moreover, the Report recommends that a separate offence of stalking, which it describes as an aggravated form of harassment, would be created . The Report further recommends that the offence of harassment would be amended, from the current offence of sending threatening and intimidating messages to ensure that the updated offence would include specific reference to harassment of or about a person by online or digital means. The creation of fake profiles, or ‘catfishing’ has been reported more widely recently, where children are lured into providing information, including sending photographs of themselves, under false pretences. The ramifications for children of such activity can be life altering, or indeed life ending as has been seen in recent reports in the media*.
Significantly, the proposed legislation includes that the privacy of the victim is to be protected in any prosecution, however the victim can choose to waive anonymity.
Prior to this Report, the majority of children’s rights scholars have called for alternative outcomes where a child is found guilty of participating in a cyberbullying or harassment. The prospect of criminalizing children who fall foul of the legislation has been opposed in circumstances where the education of offenders is regarded as a preferable option. The Report reflects these concerns, and provides that children under 17 should not be prosecuted save and except where there has been consent from the DPP. Instead, criminal sanctions are to be employed only where the most serious harm has been incurred. The Report favours education and civil law in the first instance.
Given that the reach of online communications, the Report also recommends that where the offender resides outside of this jurisdiction they could be sanctioned. This extra-territorial reach would arise where the person outside of the State involving a means of communication within the State. Also, where a person within the State uses a means of communication outside the State, then the proposed legislation would be able to reach such offenders. Ultimately, the Report expected that the extra-territorial scope of criminal and civil law in this area could be regulated via regional or global agreements.
Overall this most anticipated piece of research provides for groundbreaking advances in this area of law. Clearly, the lack of up to date legislation creates a void in our laws; our society is now ‘always on’ and technological engagements are the norm in respect of commercial, educational and social purposes. The landscape for social engagement online in particular is rapidly changing for our young people. The law must meet the challenges and threats that are emerging as a consequence to our changing society, both to protect the vulnerable users and to educate the participants. While the online world may be transient and illusive, the consequences for falling foul of this law, if enacted, would be very real.
Clare Daly is presenting at the upcoming Children’s Media Law Seminar, under the topic Child Protection and Social Media. This event is taking place on the 26th of October, hosted by Irish Conferences, see www.ashville.com for more information.