SPECIAL REPORT: Fundamental rights in digital space is a growing challenge for legal teams

Pauline Walley

ONE OF the fastest-growing areas of concern in internet litigation is the increasing online proliferation of sexually-explicit material, uploaded by third parties without consent — typically for the purpose of humiliating, harassing or blackmailing a victim.

This type of cyber activity is on the rise, particularly with the advent of inexpensive smartphones with advanced capability to produce high-quality film images easily and covertly.

The practice has earned the ubiquitous title “revenge porn” and represents a new and pernicious form of online harassment, which organisations like Women’s Aid and An Garda Síochána are now encountering on the ground. We do, however, need to be conscious that descriptive terms such as revenge porn are often value-laden, and may conjure subliminal messages of culpability or loose morals on the part of a victim.

Danielle Citron, in Hate Crimes in Cyberspace in 2014, cited US research which suggested that the response of college authorities and employers was often to blame the victim for permitting the images to be created in the first instance, coupled with a non-engaged, or at best, uneven police response.

Using words such as porn may wrongly perpetuate this view that the victim is somehow culpable, or is deemed a lesser category of victim. The reality is that uploading sexually intimate images without consent is a form of online harassment, deserving criminal and civil sanctions.

As this type of harassment has emerged into public consciousness, it has often been characterised incorrectly as a malaise solely associated with teenagers and young adult millennials. Indeed, there is a draft provision in the Criminal Law (Sexual Offences) Bill 2015 to deal with intimate images relating to minors which may reflect this common, but inaccurate, stereotype. In practice, this type of online harassment affects all ages, genders and segments of society, occurring in schools, colleges, workplaces, as well as relationships right across the social spectrum.

Although incidents of revenge porn affect both sexes, the majority of revenge porn cases encountered in common law litigation worldwide appear to relate to female victims, people of colour and gay/lesbian and transgender groupings.

Whilst there have been a number of incidents of this type of online harassment in this jurisdiction, many cases fall under the radar because victims do not wish to draw attention to their plight, attempt to resolve matters using private law remedies such as data protection, privacy or confidence claims, or because victims are persuaded that our current criminal laws are inadequate to deal with the issues.

Some academic commentators argue that the challenges posed by internet abuse simply requires a cyber tweak on existing laws. This is driven, in part, by the understandable desire to promote free speech in an online environment, which is rightly regarded as a core component in the protection of democracy.

But this conceptual approach is to fundamentally misunderstand the nature of cyber harassment, and how it is different from offline harassment, which is typically associated with localised physical acts of watching and besetting. Harassment in cyberspace is different. The online uploading of intimate material achieves global publication at the click of a switch. The material may achieve virality if it is placed on interactive sites and social media platforms, often attracting further harassing material.

Perhaps the greatest challenge for the victim is that the infringing material will remain permanently online unless removed by the internet service provider (ISP), which is republished in perpetuity via search engine results.

Given these profound differences, it is facile to suggest that laws enacted in the 19th and 20th centuries for a world which no longer exists, are sufficient to protect the fundamental rights of citizens in the digital space. Whilst commentators may contend that we need to await the report of the Law Reform Commission which has been looking at the wider issue of cybercrime and harassment for the last three years, there can be no excuse for such delay on the part of the legislature in the context of revenge porn. There is no public interest to be protected in allowing publication of the material.

The right to freedom of expression on the part of the uploader does not extend to permitting a perpetrator to deny the privacy, data protection, and personal autonomy rights of the victim, or the wider harm to society.

It is also worth observing that the State, through its organs, is obligated under Article 40.3 of the Constitution to protect and vindicate as best it can the personal rights of citizens as guaranteed under the Constitution.

The abject failure of our lawmakers to legislate in this area means that victims of such online harassment, absent those which come under the rubric of Section 10 of the Non-Fatal Offences Against the Person Act 1997 or Section 13 of the Post Office (Amendment) Act 1951 as amended, continue to be abandoned to private law remedies by those tasked with the protection and vindication of those fundamental rights.

Pauline Walley is a senior counsel, and is co-author of Cyber Law and Employment (Roundhall, April 2016).

More on this topic

New laws to tackle revenge porn welcomedNew laws to tackle revenge porn welcomed

Howlin says people found guilty of revenge porn should be added to sex offenders registerHowlin says people found guilty of revenge porn should be added to sex offenders register

Revenge porn to be made a crimeRevenge porn to be made a crime

Government backs Labour party bill that would mean tough penalties for people who distribute revenge pornGovernment backs Labour party bill that would mean tough penalties for people who distribute revenge porn


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