Yesterday, it was reported that a man from Donegal had been fined €2,000 for criminal damage, having posted offensive material under the name of an ex-girlfriend on her Facebook account. The Independent reports that:
A local garda told prosecuting counsel Sean Gillane SC that in the early hours of April 6th, 2011, the accused went to her house to confront her over a perceived infidelity. When the accused later left the house, the woman noticed that he had taken her phone.
He went through her text messages which confirmed to him that she was in a new relationship. He then logged into her Facebook from her phone and posted a status update in her name stating that she was “a whore” who would take “any offers.”
Complicating the case is the fact that the man was charged but acquitted of rape and false imprisonment of the woman on the same day. Had the rape prosecution resulted in a conviction, it might have been more appropriate to consider the Facebook incident an aggravating matter of that offence rather than an offence in its own right. However, the man pleaded guilty of the Criminal Damage matter, so there was no opportunity for the court to consider the appropriateness of the offence to the actions in question.
In considering the sentance yesterday, Judge Sheehan sought assistance from prosecuting counsel as to what the appropriate punshment might be. He asked asked how he was to assess the damage if nothing had physically been broken. Counsel replied that the offence had more in common with harassment than criminal damage. This does seem to raise the question – why was he not charged with harassment? The reason for that is that the offence of harassment requires “persistent” abuse, which suggests that a one-off incident won’t be enough to make out the offence.
The Criminal Damage Act 1991 is generally more concerned with broken windows and arson than with Facebook accounts, though it does helpfully include the following within its definition of “damage”
” in relation to data-
to add to, alter, corrupt, erase or move to another storage medium or to a different location in the storage medium in which they are kept”
You would think, with Data Protection such a concern these days, that this offence would have been more often used. The DPP didn’t dwell much on the data aspect of the case though, and instead emphasised that the damage done to the victim had been primarily reputational (though, confusingly, it was also emphasised that the message was quickly taken down).
The traditional remedy for damage to reputation has been civil rather than criminal, via a suit for defamation. However, until quite recently, the offence of criminal libel existed (it was abolished under the Defamation Act, 2009), which did provide a mechanism for a defamer to be criminally punished without the defamed having to go to the expense and trouble of suing them. In 2001, a Mayo man was prosecuted for listing a business rival on an escort site (disparagement of the sexual behaviour of women is a depressing constant in tales of online abuse) and was ordered to pay in excess of £10,000. The Government of the day abolished that offence though, citing its incompatability with Freedom of Speech.
One has to wonder why, if that offence was worth abolishing only a few years ago, the DPP has effectively reintroduced it through the back door. If the concern is for the privacy of data, and the preservation of the personal domain (online or offline) of the individual, then that is perhaps more appropriately within the remit of the Data Protection Commissioner, who might welcome this criminal law power. Yesterdays’s case, with its emphasis on reputational damage, suggests otherwise. Confusing matters further were references to harassment. And where people frequently mischievously post things online under the names of others (I see it in my timeline all the time), we need to come to some clarity on whether that should be a crime, and if so, why. Perhaps most importantly, we need clarity on which crime it actually is.
I don’t think the prosecuting Counsel was correct in equating the offence to harassment. The ‘crime’ has more in common with entering an individual’s private space, without permission, and defacing/damaging a personal item. It just happens, in this instance, that the personal item defaced is accessible to a network of other individuals – Facebook Friends – through the victims Internet-based profile.
The 1991 criminal damage legislation was a rushed solution to the gap in Irish law in relation to the offence commonly known as ‘hacking’.
The rapid growth in social Internet use has not been matched by attempts to establish what the property or speech (or combination of both) based equivalent crimes are, or if such equivalence is sufficient to address emerging issues. Neither has a sentencing tariff/scale emerged in relation to these crimes as there have been so few convictions. The only previous ‘guilty plea’ under the 1991 act – for defacing the Fine Gael website – saw the application of the probation act and resulted in two €5,000 payments, one to charity Pieta House and the other to Fine Gael.
It is time to ditch the attempts at analog equivalence and to start to legislate with the everyday use, norms and expectations of the Internet and digital technology informing the law rather than attempting to shoe horn such behaviour into existing criminal legislation. A ‘digital audit’ of the criminal law would be a worthwhile project.
I agree that the reference to harassment was incorrect, and I think it further complicated an already confused case. If your own analogy to entering private space is correct (and I think it is), then it should be carefully delineated from both harassment and libel. I think we need some guidelines (like those produced recently by the UK Crown Prosecution Service – though they aren’t exactly working perfectly either) as to what kind of behaviour should be prosecuted under what offence, and in what circumstances. So many online transactions occur on a daily basis that we need some kind of legal certainty as to what is and isn’t a crime.