What are the most common types of offences which are committed online?
This is the offence of saying/writing something which damages another person’s reputation. It is a civil offence under the Defamation Act 2009. A defamatory statement is one which “tends to injure a person’s reputation in the eyes of reasonable members of society”. Generally speaking, a statement will need to be untrue to be defamatory, and will need to be made to someone other than the person whose reputation is damaged.
Online defamation can occur via email, Facebook post, tweet or video. Posting something defamatory and trying to pass it off as a “joke” will generally not be a defence, nor will saying that you were simply expressing your own opinion. Everyone enjoys a right to freedom of expression, which is protected by the constitution, and strong exchanges of views are commonplace on social media. That doesn’t mean, however, that you can say anything online – defamation via social media is subject to the same law as defamation in a newspaper, for example.
Harassment has traditionally been defined as causing someone alarm or fear by persistently following, watching, pestering, besetting or communicating with him or her. While this was previously governed by the 1997 Non-Fatal Offences Against the Person Act, a new piece of legislation is now more relevant in the internet age. The Harassment, Harmful Communications and Related Offences Act 2020 (commonly referred to as “Coco’s Law”) came into force in February 2021, and is now the primary piece of legislation governing various types of online harassment.
Harassing someone online, via email, text/ direct message, tweet or video is now governed by section 4 of the 2020 Act, and is punishable by a prison sentence of up to 2 years. The advantage of using this act, rather than the 1997 Act, is that the harassment doesn’t have to be “persistent” – ie a single post can be enough for the offence to be committed.
Non-consensual sharing of intimate images:
The sharing of intimate images without a person’s consent – behaviour that is commonly referred to as “revenge porn” – is now criminalised by section 2 of the 2020 Act described above, and can result in a prison sentence of up to 7 years. For this offence to be committed, the person sharing the material (which can be a photo or video) must intend to cause harm and/or distress to the person who features in the material.
If intimate images of a person are taken and/or distributed without their consent, but are not done so with the specific aim of harming their subject, then this would be a more minor offence under section 3 of the 2020 act, and punishable by a prison sentence of up to 12 months. This is designed to cover the taking/sharing of content where the subject is not personally known to the person publishing it, meaning the element of “revenge” is missing.
The harassment and non-consensual sharing of images described above are only criminal offences in Ireland, so a victim cannot technically sue the perpetrator directly. The victim may, however, be able to bring civil proceedings against the perpetrator by as a claim for personal injury, defamation, a breach of their data protection rights or constitutional right to privacy, and/or for having intentionally inflicted emotional distress. Furthermore, in cases of revenge porn or the sharing of intimate images, the victim may be able to claim that they owned the copyright to that material, and sue the perpetrator for breach of copyright under the Copyright and Related Rights Act 2000 (see para 5 below).
The sending of intimate images to a child (ie a person under the age of 18) is an offence under section 8(2) of the Criminal Law (Sexual Offences) Act 2017, and can lead to a term of imprisonment of up to 5 years. Irish law recognises, however, that teenagers often share intimate images of each other through a practice commonly referred to as “sexting”. The Courts are reluctant to criminalise this type of behaviour when it does not involve adults, and the Director of Public Prosecution will have discretion not to bring a case against a child who has engaged in this behaviour.
This is related to revenge porn, but without the “revenge” element. Instead, the perpetrator publishes, or threatens to publish, intimate material that the parties had previously shared, with the intention of blackmailing the victim. This would be a criminal offence under both section 4 of the 2020 Act, described above, and also under Section 17 of the Criminal Justice (Public Order) Act 1994, which provides for the offence of “blackmail, extortion and demanding money with menaces.”
While the term ‘trolling’ has been used generally to describe the activity of online harassment, it should properly be applied to a more specific type of behaviour. Trolling is the practice of posting insulting or inflammatory material online about a person, sometimes as a result of something said or done by that person, but often for no specific reason. In many cases, the person who is the target of the trolling is not personally known to the offender, and is done just for the amusement of the perpetrator. Again, this type of offence would appear to be caught by section 4 of the 2020 Act.
Online identity theft:
This usually takes place in one of two ways. In one form of online identity theft, a person’s existing social media account is hacked by someone, who then posts content purporting to come from its rightful owner, usually in an effort to embarrass or humiliate them. This is commonly known as ‘fraping”, and would be a criminal offence under the Criminal Justice (Offences Relating to information Systems) Act 2017, as well as most likely constituting harassment as well.
Another method of misappropriating someone’s identity does not involve the hacking of an existing account, but rather the creation from scratch of a new account. This is commonly known as ‘catfishing’. When this fake account seeks to impersonate a real person, it is similar in effect to the practice of fraping, described above, except that it is done without hacking into a user’s existing account. Such behaviour would, depending on the nature of the material that is posted, most likely constitute the offence of harassment.
In all the cases above, the victim would probably also be able to bring civil proceedings against the perpetrator in the same manner as they could do for harassment – ie personal injury, defamation, a breach of their data protection rights or constitutional right to privacy, and/or for having intentionally inflicted emotional distress.
Bullying is not technically an offence in Irish law, except under employment law when it occurs in the workplace. Behaviour which occurs in school and is generally described as bullying would be governed by the school’s own code of behaviour, which would dictate whether it has occurred and what sanctions can be imposed. The term “bullying” is often used in relation to behaviour such as “defamation,” “harassment” or “intimate image abuse” when it takes place between school children, and the relevant laws described above apply just as much.
Under the Prohibition of Incitement to Hatred Act 1989, it is a criminal offence for a person to “publish or distribute written material, words, visual images or sounds, if the written material, words, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.”
“Hatred” in this context refers only to hatred against someone on account of their race, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. The conduct, therefore, must include some form of discrimination against one of these categories of people. While there is, unsurprisingly, no reference to online hate speech in the 1989 Act, the Act has been used in relation to material which was posted on social media. A person found guilty of inciting hatred can be imprisoned for up to 2 years.