Some months ago, myself and TJ McIntyre presented to the hearings on social media of the Oireachtas Joint Committee on Transport and Communications. When the hearings concluded, the Joint Committee issued a report which agreed with our view that no new laws are needed to deal with cyberbullying.
However, Fianna Fáil’s Robert Troy TD was not a member of the Joint Committee. He is his party’s spokesman for Children, and he recently published the Cyberbullying Bill 2013. As an opposition bill, the Cyberbullying Bill will never make it onto the statute book. Nonetheless, it might prove instructive to look at it, if only as an object lesson in why knee-jerk legislation can do more harm than good.
The reasons that any new laws against cyberbullying are a bad idea are threefold:
- Bullying is already illegal, irrespective of how it is carried out.
- Bullying is an institutional problem which new laws do nothing to address.
- Prosecuting children as criminals will in most cases do far more harm than good.1
In addition to these general points, Deputy Troy’s Bill has a number of flaws specific to itself. It provides for an offence of Cyberbullying where:
“any person who
(a) sends an electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, that is
(i) intended to, or
(ii) ought reasonably be expected to,
cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation“
It is worth noting here that the section does not provide that the message has to be directly addressed to its subject. Merely talking about somebody is sufficient to make one guilty of a crime attracting a sentence of up to 2 years and a fine of up to €20,000. So publishing something online that was disparaging about, say, a politician, might land you in jail. At least defamation only applies to untrue statements. Under this bill, it’s a crime to damage a person’s reputation (or even to hurt their feelings or affect their self-esteem), whether the statement is true or not.
Not content with jailing the tellers of inconvenient truths, Deputy Troy goes after all those who would connive in their impertinence. Section 2(1)(b) provides that anyone who “assists or encourages” the sending of such messages is guilty of the same offence. There is nothing in the bill equivalent to the “mere conduit” defense, meaning that phone companies, ISPs and social networks (not to mention anyone who lends someone the use of a computer for a few minutes), are to be held equally as responsible as their users or misusers. Lest that not go far enough, the next section seeks to visit upon the fathers the sins of the sons:
“Where the person who commits the offence of cyberbullying is a child, and the parents of that child
(a) know of the activity,
(b) know or ought reasonably to expect the activity to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and
(c) fail to take steps to prevent the activity from continuing,
the parents commit the offence of cyberbullying engages in cyberbullying (sic)”2
This places a parent on risk of conviction for anything their child might, with their awareness, say which is capable of being construed as cyberbullying. And given that that pretty much includes any negative statement whatsoever, parents are left with two options: prevent their children from saying anything online at all, or turn a blind eye to everything they do, and thus avail of a defence of ignorance. The bill thankfully ends there, before it can do any more damage.
This is a private members bill, and will disappear without trace. Nonetheless, it is worth noting that this is the kind of thing that some politicians have in mind for the internet: a law that makes it a crime to say anything that isn’t nice. It is also worth noting that this is how some opposition politicians conceive of their legislative role – the proposal of typo-ridden, flagrantly unconstitutional bills that have no hope of success, but might gain a bit of easy publicity on a hot button topic.
1 For more on this, and indeed on the whole subject of bullying and how not to deal with it, read Emily Bazelon‘s superb “Sticks and Stones”, which picks apart hysteria and myths and brings valuable facts to bear on the topic.
2 That the bill was published without even a proper proofreading is characteristic of its generally shabby nature.
Pingback: Revenge Porn, and the Harmful & Malicious Communications Bill | Fergal Crehan BL