Cyber bullying and the law

Gone are the days that a child could leave the bully behind in the playground and close the door on a big bad world. Home is not the safe house it used to be for a child who is being bullied, as bullies are targeting children at home on their laptops, I-pads and phones through cyber bullying.

A bully is a person who repeatedly uses inappropriate behaviour, strength or influence, whether directly or indirectly, verbal, physical or otherwise to intimidate, torment, threaten, harass or embarrass others. Bullying is bullying regardless of whether it happens in the playground or in cyberspace. An immediate response is required by parents, schools and anyone with a duty of care to children.

A common mistaken belief is that there are no real sanctions for cyber bullying. But, is that really the case?

The primary legislation protecting individuals is the Non-Fatal Offences Against the Person Act, 1997 and the Offences Against the Person Act, 1861. While these laws seem old and outdated, they are designed to both safeguard individuals from abuse and to provide appropriate sanctions to those who are found guilty. The Post Office Amendment Act 1951 has been amended to include harassment by telephone. The Communications Regulation (Amendment) Act 2007 includes provisions on indecent or menacing text messages and is punishable on indictment to a fine not exceeding €75,000 or imprisonment of up to five years, or both. On summary conviction, the offence is punishable by a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months, or both. In addition the court may order any equipment or technology used in the course of committing an offence be forfeited to the State.

But the question is, do these laws go far enough? Section 10 of the Non-Fatal Offences Against the Person Act, 1997, prohibits the harassment of a person "by any means" by "persistently following, watching, pestering, besetting or communicating with him or her", punishable summarily on conviction to a fine or imprisonment for up to 12 months or both, or on indictment by up to seven years imprisonment. The court may order, either in addition to, or in the alternative to a conviction, that a person shall not, for such period as the court may specify, communicate by any means, or come within a specified distance of a person's home or workplace.

Certainly when we look at the recent deaths both of Ciara Pugsley from Leitrim and Erin Gallagher from Donegal, who were aged only 15 and 13 respectively and who took their own lives after allegedly being subjected to substantial cyber bullying on a popular social media site, as well as the death of Hannah Smith in England, who was only 14, it is difficult to say that the statutes have gone far enough. It is further evident that the problem is not only confined to Ireland.

Earlier this year, a child law expert called upon the Department of Education to urgently update its 20 year old anti - bullying policy to include cyber bullying and to teach children about their own rights online. The Education Department already has obligations under the UN Convention on the Rights of the Child (UNCRC) to safeguard children's rights, including protection from physical and mental violence, a right to health and to education, all of which can be affected by cyber bullying. It may therefore be argued that children have sufficient rights already under international Laws such as the UNCRC and what is required by the State is more education in classrooms regarding children' rights and behaviour online. The matter is currently under review by the Law Reform Watchdog.

In Australia, an education programme is to be rolled out in more than 3,200 schools which aims to teach students to be "safe and respectful digital citizens". Whether or not something similar will happen in Ireland remains to be seen, but in the interim, it is vital that any potential threats or issues pertaining to cyber bullying are notified to all relevant parties. This includes parents of all children, teachers and the Gardaí where necessary.

If a legal route is required, then a consultation with your solicitor is advisable as there are numerous legal remedies available to deal with cyber bullying. We all have a duty to stay committed to stopping cyber bullying and holding those responsible, accountable.

Marguerite Fitzgerald B. Corp. Law, LL.B, is a Solicitor in the firm of Mannix & Company, Solicitors, 12 Castle Street, Tralee, Co. Kerry. Phone 066 7125011.


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