Monday 18 February 2019

We already have the laws to tackle trolls, what we need are more Garda resources

Senator Lorraine Higgins, who wants to bring in new legislation to create two new offences – harmful electronic communication and malicious electronic communication.
Senator Lorraine Higgins, who wants to bring in new legislation to create two new offences – harmful electronic communication and malicious electronic communication.
Colette Browne

Colette Browne

Instead of devising new laws to tackle cyberbullying, we should be enforcing the laws that we have and resourcing gardaí to do their jobs.

Last week Labour Senator Lorraine Higgins revealed that she had received two death threats sent via email a number of days apart. In both, the author threatened to "blow" her head off and said she should "f**k off while [she's] still breathing", concluding there would be "nothing better than to fill your rat's mouth with lead".

Understandably upset, Ms Higgins has reported the emails to gardaí but has claimed existing laws are no longer sufficient to cope with these kinds of online threats. She is wrong.

The abuse Ms Higgins described in the emails she received meets the test for two crimes already on the statute books - threatening to kill or cause serious harm and harassment.

To be found guilty of threatening to kill or cause serious harm, the threat doesn't need to be immediate. In fact, the victim doesn't even necessarily need to believe their life is in danger. All that is required is that someone sends a threat intending a victim to believe it will be carried out.

The fact that the individual who threatened Ms Higgins referenced a specific calibre gun in the email, and also included a video of a sniper, should be more than enough to demonstrate that intention.

The threats also constitute harassment, which can be carried out "by any means", including social media, and encompasses "persistently following, watching, pestering, besetting or communicating" with a victim.

Ms Higgins received two emails from her abuser, within two days, which meets the test for persistent and they undoubtedly seriously interfered with her "peace and privacy or caused alarm, distress or harm", which is how the act defines harassment.

However, instead of acknowledging these laws could be used to prosecute her abuser, Ms Higgins has denied they are useful. In an interview with Brendan O'Connor on RTÉ last week, she said she was unaware of anyone being prosecuted for cyberbullying under existing legislation.

Again, she is wrong. Last year, for instance, a man received a four-year suspended sentence after he posted vile sexual messages on a website about a woman. Paul Monaghan, from Kilrooskey, Co Roscommon, anonymously posted the woman's full name and address on the website and suggested she was offering sexual favours. The gardaí tracked him down using his IP address and he was successfully prosecuted for harassment.

In a separate case, Hermann Presch, from Leopardstown, was successfully prosecuted for sending harassing emails to his son at his workplace. He had sent 38 emails over an eighth-month period, all of which were unwanted or inappropriate. These cases show that when people are being abused online, there is legislation in place to deal with it. Ms Higgins's claims that a "legislative vacuum" exists are unhelpful as they suggest to victims, who are being cyberbullied, there is no criminal sanction and they should simply put up with it. Patently, this is not the case and anyone, including children, being bullied online should report those messages to gardaí.

Instead of relying on the law that we have, Ms Higgins wants to enact new legislation, which would create two new offences - harmful electronic communication and malicious electronic communication. The latter offence differs from existing harassment legislation in that persistent messages about people, rather than messages to people, could be deemed malicious if they cause "alarm, distress or harm".

This means that politicians, for example, searching for their names online and finding critical comments, could report the authors to gardaí. It also means that gardaí could be overrun with people reporting mean tweets and demanding an investigation.

Harmful communication would make it an offence to share a single message that incites someone to self-harm or take their own life but, other than messages that explicitly state "kill yourself" or "injure yourself", it's hard to know what would be captured under this section. Again, the communication need not be sent directly to someone, all that is required is that someone "shares" a communication.

Another problematic part of the proposed Bill is that even if someone appears in court and is found innocent, they could still be subject to an order compelling them to issue an apology or restraining them from approaching an unspecified area near the alleged victim's home or workplace.

The constitutionality of any such restriction of a person's liberty, when they have not been convicted of a crime, is extremely doubtful - and doesn't make much sense when the offence in question relates to online communication where physical proximity is immaterial.

Regrettably, politicians invariably feel that in order to be seen to do something about a perceived problem, more laws are required. In fact, the problem in Ireland is not the law but rather the resources the gardaí have to investigate crime.

The Garda Inspectorate Report, published last year, revealed the Computer Crime Investigation Unit, which is tasked with forensically analysing electronic devices seized by gardaí, is woefully under-resourced. Due to inadequate staffing, and equipment, delays of up to four years in investigating serious cases involving images of child sex abuse were reported. At least one case involving images of child abuse on a computer was struck out because of the delays.

When gardaí are unable to properly investigate serious crimes involving the sexual abuse of children, why would we enact new laws that will lead to an increased work load and a plethora of vexatious complaints from people whose feelings have been hurt? In the UK, where "grossly offensive" tweets can be prosecuted, one man was arrested for posting an image of a burning poppy while another endured a three-year legal battle after he posted an obvious joke about blowing up an airport when his flight was delayed. Hateful messages and abusive comments are a regrettable feature of social media, but enacting sweeping new laws that stifle free speech, and are almost impossible to enforce, are counterproductive and will achieve nothing.

When offensive comments graduate to threats and harassment, there are already laws in place that can be used to prosecute offenders. What is needed is more education, training and a properly resourced police force to deal with online crime.

Irish Independent

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