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Thursday 21 August 2014

Colum Kenny: Victims of online persecution say law offers little protection

The regulations in Ireland covering harassment by text or on social media are simply too weak, writes Colum Kenny

Published 09/09/2012 | 05:00

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Gardai last week arrested a man as they tried to put an end to a wild campaign of intimidation by text and social media in the west. Anyone could be the victim of such harassment.

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The case in Mayo highlights a flaw in the law when it comes to protecting people against online identity theft and e-persecution. Earlier this year, a High Court judge called for new laws to protect people from "patently untrue" statements on the internet.

Harry Langan, 15, from Westport, has been the victim of a vicious deceit that saw vile text messages sent in his name and his Facebook page hacked. Harry was assaulted because of messages falsely sent in his name.

And, in a current Dublin case, a man has been targeted by his girlfriend's former partner. The former partner has pestered him not only by crude abuse on websites created remotely from Ireland but also by using fake Twitter and other social media accounts to direct his professional peers to those abusive websites.

In 1998, Judge Peter Kelly warned of the dangers of "a happy hunting ground for unscrupulous defamers" if freedom of expression arguments were used to defend the indefensible. Yet ordinary citizens are still poorly protected against people who set out to use the internet and mobile phones unscrupulously.

A social worker in a family custody case was not supported by his HSE employers when he recently tried to enlist their help to stop a person posting unjustified comments about him and his professionalism on a social website.

Such instances highlight the weakness of most citizens who find themselves at the mercy of someone using social media and other online or mobile technology to libel and harass them.

The high legal cost is not the only deterrent. The technical difficulty of proving who wrote what appears online or on a phone can also be a financial and practical barrier.

And even if you can show that something is untrue, some supposedly reputable online services in the US and elsewhere simply refuse to act against abusive content unless you get a court order.

But it is also a difference of perspective. Americans tend to assume that freedom of speech means allowing something to be said unless it can be shown to be false or malicious. In Britain and Ireland, traditional media must be satisfied that statements are true before publishing them.

Not everyone can do what well-known solicitor Damien Tansey did earlier this year. He managed to persuade the High Court to close down the Rate Your Solicitor website that contained grossly defamatory statements about himself and many other solicitors. It had taken Tansey years to identify the relevant parties against whom the proceedings should be directed, since he first became aware of it in 2007, given the anonymous or pseudonymous nature of the material posted on the website.

Current Irish harassment law is too weak for online realities. Section 10 of the Non Fatal Offences Against the Person Act 1997 provides that, "Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence".

But the key words seem to be "communicating with him or her". Communication about a person on social websites, or impersonating them in order to communicate abuse to others may not be covered.

Mr Justice Michael Peart noted in Tansey's case that, "the internet has facilitated an inexpensive, easy, and instantaneous means whereby unscrupulous persons or ill-motivated malcontents may give vent to their anger and their perceived grievances against any person, where the allegations are patently untrue, or where no right thinking person would consider them to be reasonable or justified".

In strong language Mr Justice Peart argued for a change in the law: "So serious is the mischief so easily achieved that in my view the Oireachtas should be asked to consider the creation of an appropriate offence under criminal law, with a penalty upon conviction sufficient to act as a real deterrent to the perpetrator."

He added that: "The civil remedies currently available have been recently demonstrated to be an inadequate means of prevention and redress."

Sunday Independent

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