Month: July 2015

A law to make an innocent person apologise for something they are not guilty of

Online abuse (and now, more frequently, mobile phone based abuse) is a terrible thing. It ranges from the poison pen on steroids to far more serious, malicious, pernicious behaviour. Public figures are subject to wholesale abuse, ridicule, discrimination, misogyny and threats on social media. Private individuals are subjected to emotional abuse and severe pressures. Something should be done.

Well, a number of people have proposed something that could be done. Two members of the Labour parliamentary party have proposed separate private members bills (draft laws introduced for debate by individual parliamentarians and not by the Government itself). Pat Rabbitte’s bill targets offensive and menacing messages. Lorraine Higgins’ bill would target a wider range of abuse, including incitement to commit suicide and “revenge porn“.

Senator Higgins has, in particular, been subjected to persistent abuse which no-one should have to endure. Some of it is likely criminal within the current legal framework but requires prosecution. Some of the abuse would also violate the terms of service of the social media providers involved. A lot of it is indecent, unpleasant and unacceptable, but it would be quite a jump to criminalise it. Senator Higgins has tonight said in the Seanad that her proposed law is intended to restore online decency. Unfortunately one has to wonder if such a thing ever existed, but there is a much bigger debate to be had about whether unpleasant commentary should be criminalised.

The core provisions of Senator Higgins’ bill are a mixed bag. As Fergal Crehan points out it is quite specific in its aims and includes some good ideas.

To her credit, Senator Higgins’ bill is far more focused than anything I’ve seen proposed before, dealing in a specific way with areas which are not already covered by existing law. Though there are elements of it which I consider absolutely unacceptable, in other areas it raises issues that do need to be addressed by the legislature.

There is little doubt, though, that such a law would represent a serious chilling risk and in particular section 4 (harmful electronic communications) would appear to be a potent weapon in the hands of a public or wealthy figure who wishes to shut down certain types of comment.

It is remarkable, however, that section 5 has made it into the Bill at all. It creates another criminal offence, of not complying with a court direction. That is not controversial. What is quite amazing, however, is the type of court direction concerned. Section 5 says:

If on the evidence the court is not satisfied that the person should be convicted of an offence under section 3 or 4, the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:

(a)  that the person remove or delete specific electronic communication(s);

(b)  that the person shares an apology or correction as the court deems appropriate in the circumstances;

(c)  that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

In other words: a person who is accused of an offence and is found not guilty could nevertheless find themselves being ordered to publicly apologise for the thing that they were found not guilty of and to take other steps.

Courts order people to do things all the time: after they are found guilty of a crime or where an injunction is sought. The above provision is effectively a form of injunction. It would be applied in the District Court, which doesn’t have the jurisdiction to grant civil injunctions. It would be applied by a court that has found the person in front of them not guilty.

Section 5 would make a lot of sense if it applied following conviction. Given the structural nature of the internet there is usually little point in ordering the internet service provider or social media operator to do anything, as the order will usually be unenforceable, so it is quite a good idea to order the person responsible to delete the post rather than the service provider (although there would be issues with archives and caches).

The recently-passed online abuse law in New Zealand provides for similar orders to Senator Higgins’ section 5, including orders to an ISP, and it will be instructive to see how that operates. There are, however, two glaring problems with section 5:

  • the current wording empowers the court to make orders where the accused is found not guilty of a relevant offence but says nothing about the orders that can be made where an accused is found guilty; and
  • a law which orders an innocent person to apologise for something or to do anything related to the crime of which they were accused would not survive a challenge.

While one senator who backs the bill insists that it is supported by the Government and has been approved by the Attorney General, the relevant line minister does appear to recognise the problem with section 5.

This bill is unlikely to be passed but will have an impact on the debate any future proposals. Section 5 needs to be seriously reformulated if it is to be considered further.