Cyberstalking and Privacy Violations
Added on 2020-04-21
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Running head: CRIMINAL LAWCriminal LawName of the StudentName of the UniversityAuthor Note
1CRIMINAL LAWThe Law Reform Commission in its report on Harmful Communications and DigitalSafety discusses reform in the field of criminal law with respect to harmful digitalcommunications. The report recommends reforming of harassment offence stipulated undersection 10 of the Non-Fatal Offences against the Person Act 19971. This current legalframework governs the offences amounting to harassment by any means. However, thisprovision does not mention any specific reference with respect to harassment by the online ordigital means that is essential to ensure that this form of harassment is included in the harassmentoffence2. The Commission also talks about introducing a particular stalking offence in thecontext of digital and online stalking, to be included within the harassment offence. This essaydiscusses about the deficiency in the present legal framework that governs harassment law inIreland. It also entails the reasons that make it necessary to expand the harassment law byencompassing a distinct offence of stalking and indirect forms of harassment into the frameworkof harassment law dealt under section 10 of the statute. According to section 10 of the Non-Fatal Offences against the Person Act 1997, anyperson who, without any legal authority harasses another person by using any means includingtelephone, or continuously watching, following, besetting or by communicating with such personshall be considered as guilty. This section has been derived from a recommendation made by theCommission in the 1994 Report on Non-fatal Offences against the Person [LRC 45-1994,paragraph 9.77]. It was stated that any act of harassment that results in serious interference witha right of another person to lead a personal and peaceful life should be included in the criminallaw instead of the facts that gives rise to the fear of violence that are otherwise, covered by theoffence of coercion. 1Non-Fatal Offences against the Person Act 1997 (section 10).2 Geach, Neal, and Nicola Haralambous. "Regulating harassment: is the law fit for the social networking age?." TheJournal of Criminal Law 73.3 (2009): 241-257.
2CRIMINAL LAWIt is an essential requirement of the statutory provision stipulated under section 10 of theAct that the words ‘watching, following, pestering, communicating, besetting’ must beestablished to be continuous in nature. It is important for these conduct to be persisting in natureas these conducts under section 10, are otherwise considered lawful acts and it only amounts toan offence, when such act is continuously repeated to such extent that it is interfering with theprivacy and peace or causes harm or distress to the other person3. According to Gillespie (2006), the term ‘persistently’ had been construed in a mannerthat was independent of any specific number of incidents or any time frame within which suchincidents had occurred. While a single prolonged act may satisfy the requirement for persistence,separate incidents, which are not delayed, should not amount to criminal liability under section10 of the Act. In Director of Public Prosecutions (O’Dowd) v Lynch [2008]4, the accused wasconvicted under section 10 of the statute for continuously committing sexual exposure in front oftwo children, amounting to harassment offence. The Court held that the fundamental requirementof persistence under section 10 is continuous behavior that may include either several incidentsor a single incident, but continuous incident that has a prolong effect. The penalties stipulated under section 10(6) of the statute imposes upon the offenderimprisonment and/or fine for a term not exceeding 12 months on summary conviction andconviction for 7 years on accusation. In addition, the court may issue an order restraining thedefendant from communicating with the harassed person and maintain certain distance from theresidence or employment of such harassed person. In regards to the deficiencies existing in thepresent legal framework governing harassment laws, the necessity to expand the statute to3 Hanly, Conor. An introduction to Irish criminal law. Gill & Macmillan, 2006.4 [2008] IEHC 183.
3CRIMINAL LAWinclude indirect harassments forms and stalking as a separate offence is based on the followingarguments.As per section 10 of the 1997 of the Act, it can be applied to several forms of harmfulinternet behavior, which includes harassment, by digital or online means as it entails thatharassment may be carried out ‘by any means’ including telephone. Ashworth (2013) states thatas per the harm principle, serious conducts that amounts to harassment shall be subjected tocriminal law5. Harassment by means of online or digital communication is equally serious asoffline harassment and it can be even more harmful, given the specific features of digitalcommunications. Digital communications can be numerous, instant and have the capability toreach out to the global audiences or be permanently available. Further, harassment by onlinemeans cam also has an unavoidable quality, which enables the victim to become a target due tothe internet-connected devices such as Smartphone. The potential for harassment by online or digital means is to cause significant harm,which results in substantial psychological harm and even suicide. In the words of Ormerod(2015), section 10 of the Act already encompasses harassment by digital or online means as it isapplicable to harassment ‘by any means’ and has already been applied in certain onlineharassment cases. However, harassment by online or digital means is often not reported, hence,under-prosecuted which suggests that this section fails to such prevent such conduct6. The childor an adolescent are the ones who fear the most to report about cyber-bullying incidents due tothe fear that their own internet access or devices may be taken away from them or that theyunderstand the technology better than pre-digital era adults. 5 Ashworth, Andrew, and Jeremy Horder. Principles of criminal law. Oxford University Press, 2013.6 Conway, Vicky, Yvonne Daly, and Jennifer Schweppe. Irish criminal justice: Theory, process and procedure.Clarus Press, 2010.
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