Harassment Under Irish Criminal Law: An Analysis And Recommendation For Reforms

Existing legislation on harassment in Ireland

Discuss about the Crime of Harassment under Irish Criminal Law with reference to existing Legislation.

The Law Reform Commission in its report on Harmful Communications and Digital Safety discusses reform in the field of criminal law with respect to harmful digital communications. The report recommends reforming of harassment offence stipulated under section 10 of the Non-Fatal Offences against the Person Act 1997[1]. This current legal framework governs the offences amounting to harassment by any means. However, this provision does not mention any specific reference with respect to harassment by the online or digital means that is essential to ensure that this form of harassment is included in the harassment offence[2]. The Commission also talks about introducing a particular stalking offence in the context of digital and online stalking, to be included within the harassment offence. This essay discusses about the deficiency in the present legal framework that governs harassment law in Ireland. It also entails the reasons that make it necessary to expand the harassment law by encompassing a distinct offence of stalking and indirect forms of harassment into the framework of harassment law dealt under section 10 of the statute.

According to section 10 of the Non-Fatal Offences against the Person Act 1997, any person who, without any legal authority harasses another person by using any means including telephone, or continuously watching, following, besetting or by communicating with such person shall be considered as guilty. This section has been derived from a recommendation made by the Commission 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 with a right of another person to lead a personal and peaceful life should be included in the criminal law instead of the facts that gives rise to the fear of violence that are otherwise, covered by the offence of coercion.

It is an essential requirement of the statutory provision stipulated under section 10 of the Act that the words ‘watching, following, pestering, communicating, besetting’ must be established to be continuous in nature. It is important for these conduct to be persisting in nature as these conducts under section 10, are otherwise considered lawful acts and it only amounts to an offence, when such act is continuously repeated to such extent that it is interfering with the privacy and peace or causes harm or distress to the other person[3].

Deficiency in the current legal framework

According to Gillespie (2006), the term ‘persistently’ had been construed in a manner that was independent of any specific number of incidents or any time frame within which such incidents 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 section 10 of the Act. In Director of Public Prosecutions (O’Dowd) v Lynch [2008][4], the accused was convicted under section 10 of the statute for continuously committing sexual exposure in front of two children, amounting to harassment offence. The Court held that the fundamental requirement of persistence under section 10 is continuous behavior that may include either several incidents or a single incident, but continuous incident that has a prolong effect.

The penalties stipulated under section 10(6) of the statute imposes upon the offender imprisonment and/or fine for a term not exceeding 12 months on summary conviction and conviction for 7 years on accusation. In addition, the court may issue an order restraining the defendant from communicating with the harassed person and maintain certain distance from the residence or employment of such harassed person. In regards to the deficiencies existing in the present legal framework governing harassment laws, the necessity to expand the statute to include indirect harassments forms and stalking as a separate offence is based on the following arguments.

As per section 10 of the 1997 of the Act, it can be applied to several forms of harmful internet behavior, which includes harassment, by digital or online means as it entails that harassment may be carried out ‘by any means’ including telephone. Ashworth (2013) states that as per the harm principle, serious conducts that amounts to harassment shall be subjected to criminal law[5]. Harassment by means of online or digital communication is equally serious as offline harassment and it can be even more harmful, given the specific features of digital communications. Digital communications can be numerous, instant and have the capability to reach out to the global audiences or be permanently available. Further, harassment by online means cam also has an unavoidable quality, which enables the victim to become a target due to the 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 is applicable to harassment ‘by any means’ and has already been applied in certain online harassment 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 conduct[6]. The child or an adolescent are the ones who fear the most to report about cyber-bullying incidents due to the fear that their own internet access or devices may be taken away from them or that they understand the technology better than pre-digital era adults.

Need for an expanded harassment law to encompass online and digital harassment

There have been several debates over amending section 10 of the statute to include a specific reference to harassment offences by online or digital means. This amendment would enhance reporting of harassment by the online or digital means and may prevent or change such behavior. The inclusion of specific reference to harassment by online means in the section 10 of the Act shall provide certainty and clarity to those who have been conferred with the responsibility to interpret the section. It would further lay much emphasize on the seriousness of harassment that is caused through online or digital and the legal intolerance to such conduct. Furthermore, such inclusion of online harassment should be accompanied with proper guidance that should be given to the law enforcement to ensure that such inclusion does not lead to disproportionate criminalization of young people[7].

Since the provision under section 10 of the Act is adaptable to various scenarios, any attempt to specify the means through which such harassment should be made by considering the risk that may arise when future technological advancement shall not be encompassed by the words of the statutory provision. However, Reilly (2017) dissented with the suggestion that this section should be replaced on the ground that the section is already applicable to harassment offences committed any means; hence, such amendment is not necessary[8]. He asserted that instead of replacing such provisions, it is better to promote public education and engagement to ensure that the public has sufficient knowledge about the scope of section 10 of the statute. Moreover, the issue related to section 10 is the ineffective enforcement of the section and not the wording of the statutory provision.

Nevertheless, the Law Commission asserted that it is necessary to include harassment offences by online or digital means is necessary, as it would clarify the scope of the offence similar to specification of the term ‘telephone’ included in section 10 of the Act which would further enhance the reporting of harassment incidents. This explicit identification of offences amounting to harassment by online or digital means in the legislation shall signify a wider harassment offence form that would highlight society’s recognition of the need and seriousness of such form of harassment offence and prevent occurrence of such offence[9]. However, it is also necessary to enhance public awareness regarding the capacity of harassment offence that is to be applied in online harassment cases and provide the police officials with the guidance to deal with such offences.

Recommendations for reforming harassment law in Ireland

Further, the mention of the term ‘telephone’ under section 10 of the Act without mentioning any other forms of electronic communication does not make the provision complete. Thus, the inclusion of digital harassment offence in the statutory provision stipulated under section 10 of the Act shall clarify the words of harassment offence.  It would also correctly identify the conduct that is covered by the offence ensuring digital or online, as a means of harassment does not remain a hidden form of harassment under section 10 of the 1997 Act[10].

Therefore, the Commission recommends that section 10 of the Non-Fatal Offences against Person Act 1997 should be replaced and repealed with a harassment offence that is expressly applicable to harassment by all forms of communication including online and digital communications such as internet or social media. He further recommended that the amended provision must include definition of communication in the legislation that would entail any form of communication.

In regards to indirect forms of harassments, it is recommended that it should also be considered equally serious offence. Indirect forms of harassments include continuous harmful communications made through social media sites, email or other online and digital means regarding a particular person to third parties, but such communication takes place indirectly. There is a gap in the Irish law with respect to indirect harassment as the Act of 1997 specifically with direct communications with the concerned persons and it deals less with communications about someone, hence, it does not have a broad interpretation. According to Ormerod (2015), this deficiency can be met by amending the harassment offense to include harassing communication with ‘any person’ instead of any target of such harassing behavior. In the online context, it would clarify that it is a criminal offense to post any harassing communications on a public medium or to send digital communications to any third party, which might result harmful to the victim as was held in R v Debnath [2005][11].

According to section 10 of the Irish Act of 1997, the accused must be engaged in watching, besetting, communicating and pestering with the victim to establish the fact that the accused is guilty of committing direct harassment offense. The requirement to communicate with the victims would imply that it is unlikely that section 10 could be interpreted while dealing with cases involving indirect activities[12]. Hence, under indirect form of communication, the offending communication is sent to third parties instead of the offender, it may not amount to communication to victim. The language used in the section shall exclude indirect type of behavior and harmful messages posted on a private social media page are not covered by section 10 of the Act. Indirect harassment is included in the English Protection from Harassment Act 1997 as it defines harassment in more general terms compared to section 10 of the Act. This is because it criminalizes the engagement in the ‘course of conduct’ that is not necessarily against the victim but it constitutes harassment of the victim.

Therefore, the Commission believed that inclusion of indirect harassment in the provision stipulated under section 10 of the Act is necessary and would not make a fundamental change to the harassment offence as the direct relation between the victim and the perpetrator shall be retained with the inclusion. However, such behavior must interfere with the privacy and peace or cause harm to the victim to satisfy the requirement to establish that such person has committed harassment offense[13].

In regards to the inclusion of distinct and separate offence of stalking, the offence of harassment is often described as stalking. Stalking is commonly defined as a procedure that cannot be distinguished from harassment. Stalking can be define as the practice, action or crime of persecuting or harassing a person following an obsessive, unwanted and usually threatening attention for continuous period of time. It is best comprehended as an aggravated form of harassment. The Law Commission concluded that stalking should be included under section 10 of the Act. Cyber-stalking includes relentless pursuit of the victim online and is often combined with an offline attack.

Although stalking is described as a form of harassment, there is an argument regarding whether it should deserve a specific recognition. The Commission considered in its 2013 Report stated that the scope of offence harassment is adequately broad to include behavior that is known as stalking in colloquial language. In interpreting section 10 of the Act, the Commissioner asserted that majority of the section encompasses stalking kind of behavior. The Commission felt that introducing a specific form of stalking offence shall unnecessarily complicate the interpretation of the statutory provision and result in duplication of criminal law. However, the Commission decided to deal with the issue relating to whether stalking through online or digital means be incorporated as a specific and distinct offence[14].

In Northern Ireland, legal cases related to stalking are prosecuted under the harassment offences in section 4 and 6 of the Protection from Harassment (Northern Ireland Order 1997). However, in Ireland, the introduction of stalking as a specific offence has been suggested given the experiences of England and Wales and Scotland. According to Hanly (2013), identifying stalking as a specific and distinct offence in Ireland would be advantageous and significance for victims of stalking owing to the ‘hidden’ nature of crime as well as the serious nature of such crime in comparison to the offense of harassment. The incorporation of stalking in legislation instead of its inclusion within the wide-ranging offence of harassment would enable to underline the various and more menacing character of such crime.

This led the Commission realize that stalking as a distinct offence should be introduced as a separate offence from the harassment offence. However, the Commission considered the amended elements of harassment offense as essential ingredients of a stalking offence, that is, a stalking offence shall be committed where a person stalks another person continuously by communicating through online or digitally or by communicating information about one person to another person. Further, the person must have interfered with the peace and privacy of another person persistently, intentionally and have caused distress or alarm to such person, which any prudent person would comprehend as an interference with privacy and peace of another person[15].

Therefore, the only distinction between an offence of harassment and the offence of stalking is that in case of the latter, the accused must act recklessly or intentionally or have caused any form of distress to the concerned person, thus interfering with the privacy or peace of the victim. This additional requirement should be fulfilled to meet the stalking offence and to distinguish it from the offence of harassment. The offence of stalking shall include same penalty as the offence of harassment[16].

From the above discussion, it can be inferred that digital communication and internet advancements and other dangerous ways which may hinder individual privacy. The digital or online world exposes the vulnerable individuals to severe privacy violations by way of posting false, shameful, private, shameful or harmful content with the help of social media sites. The harm that is caused to the person against whom such content is posted online as such information spread instantly and reaches out to global audiences. Such interferences with the private life of an individual might have a significant impact upon the psychological and mental health of such individual. Therefore, it is essential that the issues of the victims should be addressed effectively and the government should ensure that the privacy of individuals is appropriately safeguarded.

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