Saturday 24 September 2016

Marital cheating is worse than nasty tweeting

Published 26/04/2015 | 02:30

'All aboard the 2015 Adultery Bill'
'All aboard the 2015 Adultery Bill'

Should reckless personal behaviour that causes deep trauma to others and frequently damages the lives of children be criminalised?

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Grand, so: all aboard the 2015 Adultery Bill.

Yep. From now on, such damaging behaviour must have legal consequences. People's lives are being wrecked. It's not enough anymore to say that it's some sort of 'social' problem that is best handled outside the criminal law. We need real action to curb this critical social threat.

Okay, pause: does this line of reasoning sound familiar?

It should do. Such is the rationale behind a new push to criminalise nasty online behaviour that stops short of defamation, incitement to hatred or credible threats.

Saying mean or cruel things online could soon land you in jail.

There are the two separate bills being proposed, each from different parliamentary members of the Labour Party.

"A person who sends a message or other matter that is grossly offensive or is indecent, obscene or menacing is guilty of an offence," reads one bill, proposed by Pat Rabbitte. This legislation would also criminalise "annoyance, inconvenience or needless anxiety to another persistently and without reasonable cause".

The second bill, proposed by Senator Lorraine Higgins, is even more generalised.

"A person who persistently shares malicious electronic communications regarding another shall be guilty of an offence. An electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to the other."

Alarm? Distress? Annoyance? This sounds dangerously close to criminalising insults.

The proposed legislation has some credible backers. The director of the Royal College of Surgeons' cyberpsychology research, Mary Aiken, is one such person.

"It's time to take a legislative lead on this," she said. "There's real damage being done to children out there."

Aiken is right that people are getting hurt online. Nasty, snide remarks are certainly thrown about. (Although in almost a decade using social media, it remains a tiny minority of overall personal interaction.)

But there's a difference between people being hurt and being people criminally damaged. Saying something mean or cruel to someone, even when you intend to inflict misery or are reckless as to its results, is the ugly price we pay for freedom of speech.

This is why adultery remains outside the criminal code. It wrecks lives. But locking cheaters up is, we have come to accept, a draconian response.

A second, more specific provision in Lorraine Higgins' bill sounds reasonable on first reading. It seeks to outlaw "a harmful electronic communication... where it incites or encourages another to commit suicide or to cause serious harm to themselves or includes explicit content of the other and it intentionally or recklessly causes alarm, distress or harm to the other".

Few will argue against banning so-called "revenge porn". Aside from being reprehensible, it is easy to draw a fairly clear line on what constitutes qualifying behaviour.

But prosecuting the last teenager to say something mean to a schoolmate before they go out commit an act of self-harm is an entirely different matter.

The common-law 'egg-shell skull rule' - where you're guilty of manslaughter even if the person you pushed over in a temper was unusually weak or fragile - does not translate well to the domain of online abuse.

This was specifically recognised by a Government-assembled expert group on cyberbullying, which strongly advised against trying to criminalise it.

"At this time, the focus should be on securing implementation of existing legislative requirements across the system rather than seeking to introduce new legislation," it said.

This rejection of a criminal approach was echoed by last year's Internet Content Advisory Group, a group of internet experts assembled by the then Communications Minister, Pat Rabbitte.

Both of these groups were right.

It surely goes too far to jail someone for making a casually mean remark, even if it triggers a traumatic episode in another who is depressed or psychologically vulnerable.

This doesn't mean that we should accept such behaviour. It is horrible. But a handful of existing laws - among them the 1997 Non-Fatal Offences Against the Person Act and the Prohibition of Incitement to Hatred Act - can already make truly dangerous online trolls accountable.

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