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Cyber-bully law 'must not hinder free press'

Top lawyer warns Dail committee over internet protection

A senior constitutional lawyer has warned that any changes in the law on online bullying, such as in the area of privacy, should not act as a hindrance to press freedom.

The Dail Communications Committee, chaired by Fine Gael TD Tom Hayes, is planning to hold a series of hearings into the issue of cyber-bullying. But in a submission to the committee, seen by the Sunday Independent, top Labour adviser Richard Humphreys warned that any response should not "stifle" the freedom of the press to investigate serious issues of public concern.

Ongoing concerns about the ambitions of certain elements of the Coalition to implement further curbs on press freedom have increased in the wake of a report in the Sunday Independent that former Taoiseach Brian Cowen was to make a complaint to the Office of the Press Ombudsman about an alleged breach of his constitutional right to privacy.

This weekend it can be revealed that Mr Cowen's complaint has already been submitted, as has a robust response from the Irish Daily Mail on Sunday, and is being considered by the Press Ombudsman, whose office will adjudicate shortly.

Mr Cowen's grievance is centred on reports covering his enrolment in a six-week course at Stanford University in California.

The progress of the case is being watched with special interest by an elite group of bankers, property developers and retired politicians on six-figure pensions.

Politicians have also been complaining vociferously about internet abuse in recent months.

However, in an appeal for a sense of proportion, Mr Humphreys warned the committee it should be aware that "current problems are not in any way confined to politicians being at the receiving end".

He added that it was "important to ensure that the focus is on protecting citizens generally, while of course being sensitive to the rights of freedom of expression".

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The submission from the respected barrister is another example of a growing divide between Fine Gael, where solicitors such as Alan Shatter are aggressively pursuing a new Privacy Bill, and senior Labour ministers such as Pat Rabbitte and Joan Burton, who are growing increasingly concerned about the dangers posed by a "Berlusconi-style media complex".

The high-profile lawyer did, however, also warn that major changes are needed in the law to protect citizens from "bullying, harassment, online defamation and invasion of privacy" that are not "confined to social media but apply to internet and electronic communication generally".

In a personal submission to the committee, Mr Humphreys said that he had read "a number of commentators on this issue stating rather blithely that 'the laws are already there' to deal with such matters" but this was "a misconception that needs to be scotched at the outset of this debate".

He noted that the absence of general legislation governing the right to privacy meant the issue of a privacy law needed to be considered "in the context of a review that includes online bullying, without doing anything to stifle investigative journalism".

He said that when it came to internet harassment "UK practice would appear to show that UK criminal law seems significantly more responsive to abuse on the internet than Irish law, and I think the reasons for this need to be explored".

Mr Humphreys noted that whilst the Defamation Act 2009 applies to online publications, "many aspects of the act do not take into account the special difficulties facing a victim in the context of online defamation" such as the "statute of limitations, the single publication rule and the difficulty of suing anonymous defamers".

Mr Humphreys also warned that the abolition in 2009 of the law of criminal libel and the failure to insert an alternative criminal offence now means "there is now no appropriate criminal route that can be availed of by the victim. This means that the victim of online defamation cannot simply go to the gardai but must take expensive civil action him or herself".

This, he said, has created an unfair playing pitch where "it costs a harasser nothing to post anonymous comments, yet it can be extremely expensive and difficult for a plaintiff to ascertain the identity of the appropriate defendant, let alone obtain a judgement, enforce it and recover costs".

Mr Humphreys also claimed that he was not "at all sure that all of the social media are very responsive to complaints from victims" over the actions of a "a small minority of the online population who view the internet as a place where anything goes".

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