C15490448

This essay will involve discussing whether the law regarding
harassment should be changed, whether it should be broadened to include acts of
harassments which are not recognised in the law today, acts of harassment that
occur online, with the inclusion of indirect forms of communication. Section 10
of the Non-Fatal Offences against the Person Act 1997, includes harassment by
telephone. However, there is no mention of harassment in the virtual/online
world. It is very clear that this is an issue that needs to be sorted. In an
article in the Irish examiner, it explained the extent that online harassment
can go, it has led to a huge number of people suffering with psychological
issues and in severe cases lead to suicide. 1

The use of social media has taken over the lives of most
people in the world, however there is no law set to protect people from the
danger of harassment online. It is difficult to decide, how these acts should
be protected under the law.

Section 10 of the Act stated that
Harassment is defined as “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.”2
In the case of DPP -v- Lynch, the accused was taking part in inappropriate
behaviour in front of two young children while their parents were out. The
accused was present in the house to install a kitchen. He repeated this
behaviour numerous times. The court focused on the word “persistent” and
whether incidents occurring with shorts intervals of time can be considered
persistent. It was held that the events, although happening all in a short
space of time could be considered persistent.3
This ambiguity highlights the need for a change in the current legislation.

There is a lot of vagueness surrounding the term stalking.
What is stalking? What constitutes stalking? Most people are unaware and make
presumptions. Currently in Ireland, there is no legislation concerning stalking
and no legal definition. Similarly, in the UK, they do not have a strict
definition. Although, an amendment was made to The Protection of Freedoms Act
in 2012. The changes in their legislation included inserting two extra parts.
Even though, a definition is not clearly given amended legislation, it provides
examples of acts that would be considered stalking. These acts include, spying
or watching a person, following someone, forcing contact with someone. The act
also included that this contact can be through any means, including social
media.4

R – v – King and R – v – Goodchild are both stalking cases
that resulted in the murder of the victims. These cases arose in England prior
to the amendment of the legislation in 2012. Focusing on the case of R – v –
King, this involved the breakup of a relationship. The appellant in this case
was unable to come to terms with it. He began to stalk the now deceased, by
sending a huge amount of text messages and emails. Perhaps if there was a
legislation in place at the time of this event, there may have been a different
outcome to the events. The presence of the legislation perhaps, would encourage
more people to come forward about stalking incidents, as they might feel they
would get the help they need to prevent the continuation of stalking. This is a
point to consider when deciding if stalking should be put as a separate and
distinct offence.5

In England, it was hoped that the change in the law, although
drastic, would provide clarity when dealing with the offences. These changes
sought the inclusion of spying on someone an offence into English law. A person
does not have to be threatened for them to be a victim of stalking.6

https://cosaint.wordpress.com/2012/12/25/stalking-is-not-a-specific-offence-in-irish-law-should-it-be/. As it stands in Ireland today,
there is no specific law protecting people from being a victim of stalking.  An article in the Irish Independent stated
that nearly a fifth of women above the age of 15 in Ireland have been a victim
of stalking, either online or in person. This figure comes from information
compiled in an EU survey. Recently a woman came forward, explaining her story
as a victim of stalking. Throughout the abuse she received from her former
ex-boyfriend, she felt unsafe and threatened. Her solution was to report to the
Women’s Aid National Freephone Helpline and Support Services.
Although helplines for those in need are important, they are not enough. It is
a necessity that there is a specific law brought in to protect people from
being stalked.7

https://www.independent.ie/life/health-wellbeing/safe-4-women/i-was-scared-for-my-life-irish-woman-opens-up-about-stalking-nightmare-at-the-hands-of-her-exboyfriend-34640825.html

Women’s Aid continue to campaign about the necessity of
stalking to be put into law. They have hundreds of reports of terrified women
on the phone in fear. It is a concern of these women that the technological
world is being used by their stalkers to “monitor and control” them. The
justice system was put in place to ensure the protection of rights of people.
However, it fails to protect people who find themselves a target of online
stalking.8

There are arguments suggesting that, the existing legislation
that was put in place for harassment offline, and that it may be incapable of
regulating the online harassment. To include harassment through indirect
communication, Section 10 of the 1997 Act would have to be completely reworded
as, it provides in section 10 following, watching, pestering, besetting or
communicating with”.9
The words communicating with strikes out any harassment that occurs indirectly
online. The amount of ways a person can be harassed online is never ending such
as spamming to sending viruses to people, threats sent online and the use of
fake online profiles. Indirect harassment, is when the person is not
specifically contacted, however, harmful and undermining information is spread
about that on the internet. It is irrelevant whether the information that is
being spread online is true or false. In July 2007, an incident of this kind
occurred concerning a student, Mr Mallaghan at Kent University. Mr Mallaghan
also worked in the University library. A Facebook group was created called “for
those who hate the little fat library man” over 300 people joined this group
writing in things about him such as wanting to beat him up. The Facebook group
was deleted due to the University getting in contact with Facebook directly, no
legal action was brought. How many times will this happen to people online
before action is taken? It is evident from cases such as Mr. Mallaghan’s that
it is a necessity that harassment through indirect communications should be
inserted into the legislation.10

It was said by the Minister of Communications in 2013, that
the Non-Fatal Offences against the Person Act 1997, focuses only on direct
communication leaving a gap in the legislation, “it does not deal with
communication about someone and is being interpreted in a very narrow sense by
the courts.”11
Five years after this statement was made by the Minister of Communications, the
changes of the legislation have still not been put in place. The legislation
needs to be changed to get rid of the narrow view of the courts and to protect
people against the forever growing online world.

Harassment through indirect communications includes the
creation of fake online profiles. With the outburst in the number of people
setting up fake profiles on social media, it is surprising that there has not
yet been an introduction in Irish law regarding this.  The Independent in the UK revealed that online
harassment left a woman feeling “absolutely hopeless” as the police continued
to fail to act to prevent the continuation of the harassment. The woman was a
victim of the online abuse for four years. The article also revealed that
victims of other kinds of digital abuse have been left frightened, due to the
insufficient action taken by the police. The absence of action was put down to
a lack of understanding in digital crime.12

However, almost a year ago in the UK, a spokesman from the
CPS stated that it may be considered a criminal offence to set up fake online
profiles. This is under the condition that the profile was set up with the aim
to share harmful and untrue information about the victim.  These offenders are set to face much tougher
action, in line with the intended future measures. With the online world
developing continuously, there are always new ways to humiliate, target and
harass people through the online world.13

A fake profile was created on the popular dating app Tinder
using photos of a young journalist to create it, the Irish Times reported. The
photos that were used were uploaded by the 21-year-old journalist on to her own
private Facebook account. A friend notified her of this account, she was
unaware before this. Although the young journalist did not feel in fear or
distress, she described the event as “……it’s an absolute violation of privacy.
” The above paragraph provided information that it may be introduced into
English law that it will be an offence to set up a profile, if it was set up to
spread undermining and false information about someone. However, it could be
said that it law should go beyond that point and it should be an offence to
merely use someone else’s information under false pretences.14

Revenge pornography is a prevalent issue is todays affairs.
It was defined by The Communications Select Committee as “usually
following the breakup of a couple, the electronic publication or distribution
of sexually explicit material (principally images) of one or both of the
couple, the material having originally been provided consensually for private
use.”15

It is becoming a common affair to put up private pictures of
a previous partners online to retaliate after a recent break up. It is illegal
in the UK to publicise a picture without the consent from the person in the
picture or video and to upload it with the intention to cause distress to the
given person. A person convicted of publishing revenge porn can serve up to two
years imprisonment along with a fine in the UK.16
In 2014, Luke King was prosecuted under s2 of the Harassment Act 1997. He was
sentenced to 12 weeks in prison. This was due to Mr King uploading a sexual
picture of his previous partner to his WhatsApp account. Before uploading the
picture, Mr King had already been warned by the police not to do so, as he had
made threats to his former partner about this. The threats, along with the
publication of the photo made it sufficient to prosecute Mr King for this
harassment.17

In 2016, a “revenge pornography” case was brought before the
High Court in England. The two parties in this case were previously in
relationship. When the relationship came to an end, XYZ was threatening to send
photos of JPH to magazines and post them on social media. The threats were made
in the hope that JPH would resume the relationship or else the photos would be
made public. Mr Justice Popplewell granted an interim non-disclosure order
restraining the images or information being revealed publicly.18

Another case surrounding this issue is R v DeSilva, this
involved the defendant taking a sexual video of the victim when she was
unaware. When their relationship came to an end, the defendant sent this video
to family and friends via email and posted the video on Facebook. The defendant
also made threats directly to the victim through numerous emails. The defendant
was convicted of voyeurism. It was stated in the Report on Harmful Communications
that if this case had occurred in Ireland the outcome would have been
different. This is due to Section 10 of the Act including the words “communicating
with”. If the defendant in this case had have just posted the video online and
sent it on, it would be doubtful that it would meet the requirements of the Act
in Ireland. This is a concern that the citizens are not given the same justice
across the globe.19

In line with the recommendations that were made by the Law
Reform Commission, there is no doubt about the necessity of both an
introduction to a distinct
offence of stalking and the requirement to include indirect communications
and the need to expand the current harassment legislation to include digital
and online communications. This absence of this offence has left thousands of
people across the country without protection. From all the reports, newspaper articles and
stories from victims who have suffered because of the lack of legislation put
in place to support them. It can be said without hesitation that harassment
through indirect communication, through fake profiles and revenge pornography
needs to be put to a halt.

 

 

 

 

 

 

 

 

 

 

1  The
Independent, ‘Victim Of Online Harassment Feels ‘Absolutely Hopeless’ Over
Police Inaction’ (2018)

accessed 24 January 2018.

2 Non-Fatal
Offences against the Person Act 1997 2018.

3  The
Director of Public Prosecutions (Garda Siobhán O’Dowd) , Prosecutor
 v Martin Lynch, Accused2008 High Court, 2008 IEHC 183 (High
Court).

4 ‘Stalking
And Harassment’ (CPS, 2017)
accessed
24 January 2018.

5  R
v King 2007 EWHC, 418 (QB) (EWHC).

6 Stalking
Is Not A Specific Offence In Irish Law. Should It Be?’ (Cosaint, 2012)

accessed 22 January 2018.

7 The
Irish Independant, ”I Was Scared For My Life’ – Irish Woman Opens Up About
Stalking Nightmare At The Hands Of Her Ex-Boyfriend’ (2018)

accessed 24 January 2018.

8 Irish
Examiner, ‘Making Stalking A Criminal Offence’ (2013)

accessed 24 January 2018.

9 ‘Harmful
Communications And Digital Safety’ (Law Reform Commision 2016)

accessed 24 January 2018.

10 ‘Regulating
Harassment: Is The Law Fit For The Social Networking Age?’ 2009 Journal of
Criminal Law

accessed 24 January 2018.

11 Harmful
Communications And Digital Safety’ (Law Reform Commission 2016)

accessed 24 January 2018.

12 Independent,
‘Victim Of Online Harassment Feels ‘Absolutely Hopeless’ Over Police Inaction’
(2017)
accessed 20 January 2018.

13he
Telegraph, ‘Faking Social Media Accounts Could Lead To Criminal Charges’ (2016)

accessed 18 January 2018.

14 Independent,
‘Irish Journalist’S Horror At Getting ‘Catfished’ On Tinder’ (2014)
accessed 24 January 2018.

15 ‘”Revenge
Pornography”‘ 2015 Criminal Law & Justice Weekly.

16 The
Telegraph, ‘What Is The Law On Revenge Porn?’ (2015)

accessed 16 January 2018.

17 ‘”Revenge
Pornography”‘ 2015 Criminal Law & Justice Weekly

accessed 20 January 2018.

18 “JPH”
and “XYZ” 2015 IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH
DIVISION (IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION).

19 ‘Harmful
Communications And Digital Safety’ (Law Reform Commission 2016)

accessed 22 January 2018.