Ruairi Quinn, TD & Minister for Education
Clarke Jeffers Solicitors specialise in Internet and Technology Law. In line with our goal to be more socially aware we have focused our resources into the area of cyberbullying. While there are some great campaigns out there such as Connect With Respect, Think B4U Click and Watch Your Space, there are very few sites that set out the legal realities on the subject or provide information on legal redress. If you are being cyberbullied or are a parent or friend of someone who is being cyberbullied then there are options open under the law.
Most campaigns focus on identifying cyberbullying and what you should do to minimise its effects. Very little has been published however on what legal remedies are available as to how it can be stopped and who is actually responsible under the law.
The perpetrator responsible for cyberbullying is committing a crime. Statistics show that a child carrying out cyberbullying at 12 years of age is twice as likely to have a criminal conviction by the age of 24 (Official Garda Statistic)
Sad events have shown us the true devastation that cyberbullying can have if not addressed. In some situations it will not be enough to just identify it. Quick action in stopping it and making the culprits responsible may be required. If your child comes home from school with a black eye or a broken bone then the law provides clear remedies against the perpetrators and instant action can be taken, so is it not the same in the cyber world? The common misconception is that cyberbullying is different with no real sanctions existing. The fact of the matter is that the only difference is the prefix “cyber”. Bullying is bullying regardless of whether it happens in the playground or in cyberspace.
What is the legal definition of a cyberbully?
A cyberbully is defined as a person who uses repeated inappropriate behaviour, strength or influence, whether directly or indirectly, verbal, physical or otherwise to intimidate, torment, threaten, harass or embarrass others. The inappropriate behaviour, strength or influence, is applied typically to coerce or force others to do something or react in a certain fashion, using internet or other technology, such as mobile telephones.
The primary statutes protecting individuals are 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 While these laws seem old and outdated, they are designed to both safeguard individuals from abuse and to provide appropriate sanctions to those who are found guilty.
Section 2 of the Non Fatal Offences Against the Person Act 1997 sets out the offence of assault. Section 2 describes the basic elements as follows:
“2(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly:
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other.”
Section 5 of the 1997 Act provides as follows:
“5(1) A person who, without lawful excuse, makes to another a threat, by any means intending the other to believe it will be carried out, to kill or cause serious harm to that other or a third person shall be guilty of an offence.”
Force does not actually have to be used; merely causing an apprehension of force is sufficient for assault under the law. The apprehension must be on reasonable grounds (i.e. the victim must reasonably believe that the threat is real and imminent) so if texts, e mails, tweets etc were to contain threats of physical violence such as “I hate you. You are going to die. I will kill you” and the recipient has reason to believe the threat is real and that death or injury will occur imminently then the person issuing the threat has committed an offence.
Section 10 of the 1997 Act outlines the offence of harassment. 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.”
Interestingly the only amendment to this area of law in recent years concerned the Post Office Amendment Act 1951. Section 13(1) was amended by the Communications Regulation (Amendment) Act 2007. This gives protection against telephone messages that are grossly offensive, indecent, obscene or menacing. It also covers persistent telephone calls without a reasonable cause.
Culpability: liability of schools and other institutions for their pupils/children
Schools and similar institutions have an operating duty of care to those in their care. Culpability for cyberbullying can attach to the school or institution in certain limited circumstances. Liability can arise due to the non-implementation of school policies which would allow unmonitored access to the internet through computers or smartphones (and soon smartwatches). A school could be held liable for damage caused due to negligence and/or breach of their statutory duty to look after their pupils. They have a duty not to allow bullying or harassment to take place and to take all reasonable steps to prevent it. It is getting more difficult day by day to protect against such liability, however, it is always advisable to have a full and complete school policy in place in relation to such activities and avoid pupils having unfettered access to the internet via broadband and other means.
Culpability: liability of parents for the actions of their children
In civil cases, parents may be held liable or accountable for the actions and conduct of their children in certain circumstances. These circumstances would depend on the facts of each individual case.
It is vital that any potential threats or issues pertaining to cyberbullying are notified to all relevant parties. This includes parents of all children, teachers if applicable and the Gardaí where necessary. If a legal route is to be followed then a consultation with your solicitor is advisable. There are numerous legal remedies available to deal with cyberbullying. These include, but are not limited to:
Implementation of Usage Policy. This would involve contacting the relevant medium or platform on which the cyberbullying is taking place and requesting that all information be removed and that the usage policy is enforced against the perpetrator.
- Takedown Notice: Not unlike the above avenue, this entails contacting the website/ social media owner and requesting a takedown of offending material. This would follow a request for implementation of their usage policy. Full evidence at all stages must be provided to request a takedown of material otherwise no information will be removed. If incorrect information is supplied in relation to a takedown notice, then the party making the request can be liable for any loss incurred.
- Enforcement of Data Protection: Personal information must be protected by each website/ social media hosting company. The main Irish law dealing with this is the Data Protection Act 1988. This Act was amended by the Data Protection (Amendment) Act 2003. The amendment Act has allowed Ireland to be brought into line with the EU Data Protection Directive 95/46/EC. This legislation covers all matters of data protection on all types of platforms, whether they are telephone, computer, email, etc. The Acts allow for remedies where a breach or release of information has occurred.
- Injunction: This is a court order that can either prohibit the publication of certain information or force its removal.
- Defamation: A “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society, Statements made online, whether they appear in social media sites, twitter, e mail etc, are not immune to the laws on defamation. If a defamatory statement is made then civil redress can be claimed through the courts.
The main social media sites have conveyed the message that they will only take material down in certain circumstances. Facebook have recently stated that they must distinguish between material that causes hurt and material that causes harm. While this is a reasonable position for a company the size of Facebook to take, it is difficult for an individual who is subjected to hurtful material. One must also ask the question as to when do hurtful comments turn into harmful ones?
The main difficulty with cyberbullying is the perceived complexity of the cyber world and who exactly is responsible. At Clarke Jeffers we are experts in Internet Law and experienced in the various remedies available. We offer strong confidential advice to anyone who feels that they are being bullied or feels that they do not know what to do. In accordance with our social awareness policy, we are committed to stopping cyberbullying and holding those responsible, accountable.