Wednesday, July 23, 2008

Bebo, bullying and the law

The Irish Independent recently carried a story about what may be the first Irish case involving social networking to reach court:
A man has been prosecuted for putting offensive and obscene messages on social networking site Bebo in what is believed to be the first case of its kind to come before the Irish courts.

Paul Anthony Matthews (27) posted what a judge described as "outrageous" messages on a teenage girl's site on January 31 this year.

Matthews, of Carnbeg, Doylesfort Road, Dundalk, agreed to pay the victim €3,000 instead of going to jail.

The pioneering case was brought under Section 13 (1) of the Post Office Amendment Act 1951 for sending offensive or indecent material by means of telecommunication.

Matthews, a father of one, admitted posting explicit and abusive messages on the teenager's site. The victim cannot be identified because of a court order.

Dundalk District Court was told that Matthews had a previous disagreement with the then 16-year-old and posted the messages on her Bebo page. The teenager had made a complaint about Matthews to gardai regarding another matter and the Bebo messages were investigated.

Matthews was arrested and admitted when questioned that he had put up the messages on her site.
So what's the significance of this case? It's certainly not the first time that internet harassment has come before the courts in Ireland - as far back as 1999 a man was convicted of criminal libel for online postings (Mac RuairĂ­, “Man Jailed for Libel on the Internet”, Irish Examiner, December 21, 1999.) But it does seem to be the first time that this particular section has been applied to the internet, so it might be worth looking at it in more detail.

Section 13 has been heavily amended since it was enacted. (For the tortuous details see the Fourth Schedule of the Postal and Telecommunication Services Act 1983, section 7 of the Postal and Telecommunications Services Amendment Act 1999 and Regulation 4(8) of SI 306/2003.) The most recent change was brought about by the Communications Regulation (Amendment) Act 2007, which substitutes the following for section 13:
Offences in connection with telephones.
13.—(1) Any person who—
(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing


(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person—
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause,
commits an offence.

(2) A person found guilty of an offence under subsection (1) is liable on conviction—
(a) if tried on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both, or (b) if tried summarily, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or to both.
(3) A contravention of this section is an offence under the Post Office Act 1908.
(4) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.
(5) In this section, ‘message’ includes a text message sent by means of a short message service (SMS) facility.”.
This is, however, quite a narrow section. It is limited to messages sent by "telephone" (which, while it might be stretched to cover the use of dial up, probably excludes the use of e.g. cable modems). Although it includes text messages it does not mention email or other internet messages and wouldn't seem to be wide enough to include them (a point also made by Kelleher & Murray - Information Technology Law in Ireland (2nd ed.) at 690). In fact, the legislative history on this point indicates that "cyber bullying" was expressly excluded from its scope, with the Minister for State (John Browne) rejecting an amendment extending the section to cyber bullying, stating:
The purpose of amending the Post Office (Amendment) Act 1951 was to increase fines to deter nuisance calls to the emergency call answering service, ECAS. The change proposed by the Senators is a wider offence and I understand from the debate on Tuesday that they are particularly concerned about tackling cyber bullying. The issues were raised again today by the Senators. This type of regulation falls outside the remit of the Bill. The sole intention of this provision is to address nuisance calls to the emergency services. I have listened carefully as did the Minister, Deputy Noel Dempsey, to the points raised by the Senators. The purpose of the Bill is to deal with the regulation of a service. The areas raised by the Senators would be more appropriate to the Department of Justice, Equality and Law Reform.

To respond to Senator Terry, it is an offence under section 10 of the Non-Fatal Offences against the Person Act 1997 to harass a person by use of any means, including by use of a telephone. Therefore, the issue is already dealt with to a certain extent.
Consequently (though bearing in mind we only have media reports to go on) it's hard to see how this section was applied to the defendant's conduct in this case.

(It may be, however, that the prosecution mistakenly had in mind the previous version of section 13(1) which appeared to be substantially wider in that it prohibited the sending of any grossly offensive etc. message "by means of the telecommunications system operated by [any authorised undertaking]" - a formula which may have been wide enough to include internet connections.)

Instead, one would expect this type of situation should be dealt with (if criminal charges are necessary) by the offence of harassment under section 10 of the Non Fatal Offences Against the Person Act 1997, which explicitly includes communication with a victim "by any means".

At this point one might wonder - so what? Does it matter whether this conduct is dealt with under one of these offences rather than the other? I'd suggest that it does. Section 13 is designed to deal with nuisance telephone calls. These are peculiarly direct, immediate, personal and invasive of one's privacy. Consequently the law applies a low threshold - a single instance of gross offensiveness - before these become criminal. But this is very unusual. The law doesn't generally criminalise mere offensiveness, even gross offensiveness, nor should it. But if section 13 were extended to all internet communications then it would have just that effect - prohibiting a great deal of speech on the basis that some readers might find it grossly offensive. (Something which would, for example, make criminals of those who post the Danish cartoons portraying Mohammed.) Indeed, as Eoin O'Dell recently reiterated "It is precisely to allow the expression of offensive opinions that the right to freedom of expression is necessary."

Having said that, there may be a case for extending section 13 or a similar provision to some internet communications. For example, nuisance emails and instant messages share many of the characteristics of text messages, and in some circumstances messages left on a person's social networking page might be as invasive. But any extension of the law must be carefully limited to avoid damage to freedom of expression.

Update (10 May 2010): - I've now been informed that after being alerted to these issues the original trial judge accepted that there was a flaw in the proceedings, declared a mistrial and reentered the matter. Last week, on the matter again being listed in Dundalk Judge Hamill considered this point and ruled that the charge was inappropriate.

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