The Age of Consent

The Irish Times reported this morning that proposals are before cabinet to lower the age of sexual consent from 17 to 16. The proposals may be a hard sell, as sex and change are two things the Irish public are deeply uncomfortable with. However, any such discussion is welcome news, as the current age causes numerous problems, and not just for teenagers.

The Oireachtas Committee on the Constitutional Amendment on Children’s Rights recommended as far back as 2006 that the age be reduced to 16. The Irish Times reports that on that occasion, Enda Kenny opposed any change on the grounds that it  would send a “wrong signal to our children about values and standards”. One imagines here a young couple in the throes of passion, suddenly stopping as one of them says “No. I love you, but Section 3 of the Criminal Law (Sexual Offences) Act 2006 says we have to wait, and An Taoiseach Enda Kenny agrees”.

16-year-olds have sex. They always have done, and while society may wish otherwise, they probably always will. The question then is not whether to do away with teenage sex (because the law cannot do that), but whether or not to make criminals of those teenagers. As the law currently stands, any male of any age who has sexual intercourse with a girl (or boy) of under the age of 17 is guilty of an offense, irrespective of the other’s consent. A girl, however, cannot be guilty of that offense. This, incidentally, creates an interesting lacuna, whereby there is no age of consent for gay girls.

Aside from the  fundamental question of whether it is humane to make criminals of boys who engage in consensual sex with their girlfriends, there is the fact that the current law acts as a disincentive for teenage fathers to acknowledge their children, because in doing so they confess to a crime.

Where a sexual offense exists, there follows, under the Criminal Justice (Withholding of Information On Offences Against Children and Vulnerable Persons) Act, 2012, an obligation to report it to the appropriate authorities. Accordingly, anyone who becomes aware of a teenage pregnancy is committing an offense by not reporting it. In practice it is rare for young people to be prosecuted for engaging in sexual activity where they are of similar ages and where there is no complaint of coercion. This however is of no relevance to the 2012 Act, which makes no reference, in requiring disclosure of information, of whether a decision to prosecute is likely to be made. This has been a matter of grave concern to organizations and individual professionals working with very young parents.

A reduced age of consent is only one of a number of proposals before the cabinet. Another is  is to allow a defence where a sexual act was consensual and between two people of “proximate age”. This would solve many of the problems mentioned above whilst still dealing with the question of sexual exploitation of teenagers by older adults. It is worth considering. What is not worth considering at all is the third proposal, which involves the DPP using discretion in bringing prosecutions. This effectively amounts to doing nothing and hoping that nothing bad happens. It provides no legal certainty, and doesn’t deal with problems arising from the 2012 Act. However, like any proposal that it involves doing nothing, it will probably find many advocates.

Critics will say that lowering of the age of consent simply moves the goalposts, and it is true that it will not solve every problem in this area. But at present there are too many teenagers who find themselves on the wrong side of the law. A reduction of even one year would remove many of them from criminal liability, and allow our authorities and social services to focus on the harder cases which remain on the other side of that line.

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Facebook, the Whistleblower, the Binman and his Surprise Witness

Some months ago I wrote a column for The Journal about the right to anonymity, online and off. By way of an example, I mentioned the then very recent case of Mr. Jim Ferry, a Donegal businessman who had obtained an order requiring Facebook to reveal the identity of an anonymous user who had, Mr. Ferry said, defamed him.

Mr. Ferry runs a waste disposal company, and the Facebook user complained of had set up an account in Mr. Ferry’s name, claiming to have engaged in illegal dumping. Mr. Ferry complained and the page was taken down, but Facebook were unwilling to hand over details of the user without a court order. Mr. Ferry had to go to the High Court to obtain the order. Facebook did not oppose the application, and the anonymous user was not on notice of it, so the order was made without dispute. At the time I wrote

“Mr Ferry is being prosecuted by Donegal County Council for illegal dumping. He may be innocent of all charges, and the law presumes him to be so, until proven guilty. But if he is convicted, then Facebook will have handed over the personal details of someone who has done nothing illegal, and said nothing untrue. Unlike other jurisdictions such as the United States, Irish law fails to ensure that users are notified of attempts to identify them and given an opportunity to oppose the application.

Consequently in most cases Irish users are dependent on the web platform or ISP or to make a case on their behalf. These companies however, have no commercial incentive to do so. Facebook don’t want to get involved in an argument about dumping. That’s why they didn’t oppose the application.”

Last month, Mr. Ferry’s prosecution for illegal dumping came up for hearing. I’ll get to the verdict and its implications for free speech and privacy shortly, but first some entertainment.

A summary trial, the case nonetheless took three days in Letterkenny District Court. Both prosecution and defence briefed Senior Counsel. Mr. Ferry, to the last, maintained his innocence. This became a more difficult task when video evidence was led. The Donegal News describes the video thus:

Judge Kelly was shown covert video recordings showing two of Ferry’s distinctive green and yellow bin lorries dumping waste in holes in the field before it was buried using a track digger at around 5 am on the morning in question.

One of the men was wearing a hi-viz jacket with the name ‘Ferry Refuse’ emblazoned across the back of it.

One might have thought this would be the end of the matter. But at the closing of the first day of the trial, there was a dramatic development:

The hearing ended early after Mr Gillane (for the defence) told Judge Kelly that “a development took place that I have not experienced before.”

He added that his solicitor had received a “communication” and asked that the matter be adjourned for the day.

One can only imagine that what followed was what is commonly described as “uproar in the Court”. The cliffhanger was resolved the following morning. A former employee of Mr. Ferry had walked into court and delivered a letter to Mr. Ferry’s solicitor, admitting that it had been he who was responsible for the dumping all along. This surprise witness, one Marty McDermott, is pictured below, presenting a delighted Mr. Ferry with a “Certificate of Appreciation” awarded “From His Loyal Staff”

Marty McDermott.The Donegal Democrat takes up the story:

The former employee, Marty McDermott told the court yesterday that he had been paid €5,000 to dump illegal waste on the land.

McDermott said he had been set up by a man. “The man that I can’t mention set me up.”

McDermott said the person who wanted him to carry out the dumping was a man who wanted leverage in the Gweedore and Gweebara Bridge area, to keep Jim Ferry out of his area. “He wanted to get him out of that hub,” 
he said.

McDermott said he couldn’t deal with the guilt of what he had done after hearing people speaking about the implications the upcoming court case would have on the yard.

He said he went and spoke to a priest who advised him to see a solicitor who in turn advised him not to go near the court. He later decided to communicate with Ferry’s defence team.

Alas for Mr. Ferry, the Court found Mr. McDermott’s evidence entirely unbelievable. Still, Mr. McDermott has at least got the matter off his chest, and as soon as he donates the €5,000 to a worthy cause, his conscience will be clean. Mr. Ferry was sentenced to six months, suspended and fined €12,000. He was also ordered to pay Donegal County Council €30,750 in costs. The cost of his own legal team (who, given the circumstances, were made to work hard for their money) will be similar. This is without factoring in the cost of his trip to the High Court against Facebook.

Which brings us back to the point I was trying to make before I was side-tracked by Letterkenny’s Trial of the Century. Mr. Ferry knew all along that he was guilty of illegal dumping. His efforts to require Facebook first to remove the (true) allegations against him, and then to unmask their author were entirely without merit. A whistleblower was silenced because a man with a lot of money to splash around on unnecessary legal costs wanted to suppress the truth. He was able to do so because Irish law contains no mechanism for informing internet users that their identity is about to be revealed, or requiring courts to take the right to anonymity into account when hearing this kind of application. Mr. Ferry got his comeuppance, and highly entertaining it was too. Until the law is modified, not every wrongdoer will be so unfortunate.

Another Bad Idea for Legislating Against Cyberbullying

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.

FOOTNOTES

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.

Banning Online Porn: Can’t Be Done, Won’t Be Done

UK Prime Minister David Cameron recently announced a plan to restrict access to online pornography. The Daily Mail, which has campaigned for such measures, was quick both to laud and take credit for the initiative. Hot on its heels came calls in the Oireachtas and from the ISPCC for similar moves here.

Almost immediately though, it became apparent that Cameron’s proposals were more more a matter of rhetoric than substance. He announced that ISPs would henceforth block pornographic content by default (this is known as “Default-On” filtering) and that it would be up to individual customers to opt out. In fact what will happen is that customers will be offered a choice as to whether they want to filtering or not, something that some ISPs are already doing. This was quite a feat of spin, taking the opt-in status quo and presenting it as a radical change to opt-out.

It is often the way that bans are easy to demand but difficult or impossible to deliver. These proposals run into trouble when specifics are required. That is why Cameron is already backing off on his big announcement, and why the Icelandic plans for a ban have come to nothing (a member of the parliamentary committee studying the proposal says it has a “near zero” chance of making it to into law).

The problems are both technical and legal. Legally, it has never been easy to define pornography. In 1964, Justice Potter Stewart of the US Supreme Court famously said of defining it “perhaps I could never succeed in intelligibly doing so. But I know it when I see it“. Justice Stewart is no longer with us, so we must do without his guidance. If there’s going to be a law on this, someone will have to sit down and define pornography in a few sentences. Will it include all nudity, or merely all sexually explicit content? What about Page 3? Will text be included as well as images? Where does that leave 50 Shades of Gray? And what of the impending film version of 50 Shades, or other, mainstream films with explicit sexual content? A shorthand for pornography has traditionally been that it was something produced exclusively for the purpose of sexual gratification and lacking artistic merit. I am not sure 50 Shades has much artistic merit, but then who am I to judge? And who is to decide, as a matter of law, what is art and what is not?

If a distinction is to be made between hardcore and softcore pornography, we are into even more subjective territory. Are ISPs to view every piece of sexually explicit material and decide whether it crosses the line or not? They have a hard enough time dealing with child pornography, a real and pressing danger. In Iceland, though specific proposals still have not been made, it was suggested that only violent pornography could be targeted. Which brings us back to 50 Shades again.

On the technical side, the same problem remains. If we have failed over generations to come up with a working definition, then automatic filters have no criteria regarding what to block. The best that can be done is to block certain sites. But with adult material so widely available, there will always be sites that escape the net. Facebook doesn’t allow adult content, but other social networks, like Tumblr and Reddit do. Filters are notoriously inexact. Chances are, if you had family-friendly filters switched on, you would not be able to read this post. Worse, sexual education and information material tends to get blocked too, which is surely a matter of concern when calls for a ban are mostly justified on grounds of child welfare. In any case, as the Minister for Communications, Energy & Natural Resources, Pat Rabbitte pointed out, the EU E-commerce Directive explicitly prohibits (see Article 15) member states from requiring ISPs to monitor content. His recent piece in the Independent opposing such measures is a model of clarity and good sense, when he could easily have score political points by pandering and scare-mongering.

Even where filters are in place, they can be avoided, in the same way as blocked torrent sites can still be accessed. When I was young, the joke amongst the middle-aged was that nobody older than 12 knew how to programme a VCR. Now, with the VCR a relic of the past, the same generation gap exists regarding the internet. You may complacently assume that your computer is locked down. Your teenager may know better.

This, finally, is the nub of them problem. A parent may decide to install content filters on his own computer, accepting that certain unobjectionable material will also be caught in the net. Private households are not required to consider collateral damage to freedom of speech, nor should they be. A society though must give these matters due weight. Minister Rabbitte has made it clear that this is not an area in which the Government wants to get involved. Those calling for a ban might therefore spend their energies more profitably by publicising existing solutions to the problem, and encouraging better parental supervision and understanding of children’s internet use.

Submitted Op Ed Column for Irish Times

I mentioned in a recent post that the proposed new EU Data Protection Regulation is, to say the least, problematic. Actually I called it a disgrace, which it is.

I go into slightly more detail in an article co-written with Daragh O’Brien, which we submitted to the Irish Times for consideration as an Op Ed piece. Alas, the Times, who’s coverage of Data issues can range from excellent to terrible in a single day, has declined to publish it. If is available to read at Daragh’s blog, which you should bookmark if you are even slightly interested in Data Protection, security and privacy.

Genealogy & Data Protection

At a Data Protection event I attended yesterday, the Chair, Ms Justice Finlay Geoghegan referred to her husband’s interest in genealogy and to his concerns regarding an article in the Irish Times on the the subject. I pulled out my smartphone, and a quick read of the article gave me reason for concern too, though not the same reason as Hugh Geoghegan.

The article commences thus:

Access to old parish records on microfilm in the National Library and to records held by the State such as birth, death and marriage certificates could be restricted if a proposed European Union regulation on data protection goes ahead, the Genealogical Society of Ireland has said.

This statement is simply incorrect. Personal data, as protected by the Data Protection Acts, relates only to living persons. Old records are therefore not affected by Data Protection. Further, new records can continue to be created and kept, because processing of data is exempt from the Data Protection Acts where it is required by law, such as, for example, The Civil Registration Act.

The proposed new regulation retains the current definition of personal data, provides for “historical, statistical or scientific” uses of personal data, and explicitly acknowledges “the principle of public access to official documents”. The proposed regulation has its problems (to be frank, it’s a disgrace), but excessive restriction on access is not one of them.  The short article contains more assertions regarding what the regulation might do. Rather than go through them point by point, I will simply say that literally none of them have any basis in either current or proposed law. The Genealogical Society’s worries are simply not founded in fact.

But people are frequently wrong about things, and genealogists are not expected to be intimately familiar with the working of the EU legislature. More worrying is that the Irish Times decided to print a story which was in its every detail, inaccurate. The proposed Directive has been published. We do not need to speculate about what it could or might do. Journalists have access to Google, one presumes. They also have access to experts who are more than willing to give them a perspective on a planned story free of charge. This is not the first time the Times has printed groundless (and sometimes agenda-driven) speculation about this proposed regulation,  unchallenged by any reference to easily ascertainable facts. When an actual human right is at issue, you’d hope that the paper of record would care to know what it was talking about.

Privilege Checking

The recent minor scandals surrounding TDs and driving offences has shed some light on an often neglected provision of our Constitution, Article 15.13, which relates to the immunity from arrest of members of the Oireachtas.

The article is a hold-over from the Free State Constitution, where it appeared in exactly the same words. This in turn was carried over from the less formal privilege from arrest applying to the Westminster parliament. Similar immunity provisions apply in many other countries, and their purpose is clear, to protect elected representatives from molestation or interference by the powers of the state or others in their ability to speak and vote in parliament.

There is literally no case-law on the article, as it could only come before the court in circumstances where a member of the Oireachtas cited it as a defence in criminal proceedings, arguing that his arrest was contrary to its provisions. That has not happened, and may never. Because of this lack of consideration of Article 15.13 by the courts, there is unsurprisingly little scholarly analysis of it either. In fact, most of the leading Constitutional Law tomes don’t even mention it. We are left, therefore with only the text itself to provide a clue as to the scope and meaning of the Article.

The article states:

The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

The latter part of the article has been the subject of a good deal of consideration. It deals with the privilege attaching to statements made in the Oireachtas from suits in defamation or other external limits. The first part, as I’ve said, has been largely neglected. On a straightforward reading, though, it seems to provide for a blanket immunity from arrest. No mention is made of whether the Oireachtas needs to be in session for the privilege to apply, not is there any limitation of the meaning of “the precincts of” the Houses of the Oireachtas. “Going to and returning from” is not defined either. Perhaps the trip back to one’s constituency several days after the Oireachtas has closed for the summer would qualify. Certainly, there is nothing to say that a TD is not within his rights to invoke the article when threatened with arrest for a traffic offence, even including drunk driving. In fact, given that most travel is now by car, it would be an absurdity if an article intended to prevent legislators from being improperly detained en route to Oireachtas business were to exclude traffic offenses. The privilege however, is from arrest only. A Garda is perfectly within his rights to ask a TD to blow into a breathalyzer, and is within his rights to charge him for failure to do so. The only thing he cannot do is arrest him.

It is an embarrassment when a provision that was intended to prevent the institutions of democracy from despotism is invoked most often in discussions of bad or drunk driving. Even TDs know this, and if not loath to rely on the provision, are loath to admit to doing so. Recently, the Sunday Independent reported that Leo Varadkar, as Minister for Transport, was planning to stamp down on inappropriate use of the provision. I stated at the time – employing the dubious term “un-stamp-down-upon-able” – that this was not possible; one might disapprove of certain uses of Article 15.13, but this does not make them “inappropriate”, and in any case, the article can’t be modified or abolished without a referendum.

However, I may have been too hasty in this conclusion. Returning to the text again, the article is explicitly stated not to apply to arrests for treason, breach of the peace, or felony. Treason and breach of the peace are well defined. The felony/misdemeanour distinction was always fuzzy, and in any case no longer exists, having been abolished by the Criminal Law Act, 1997. This abolition would have had the effect of making the privilege from arrest even broader, as no offence would be a felony, and therefore one of three exceptions to the privilege would have been abolished. Mindful of this, the then government included a provision stating that

“For the purpose of Article 15.13 of the Constitution and for that purpose only, offences which were felonies immediately before the commencement of this Act shall continue to be treated as felonies”

So, the only people remaining in Ireland who can commit a felony are members of the Oireachtas. Perhaps this is apt. But this provision, were it to be turned on its head, provides an easy means to abolishing the privilege. If the provision were to be amended to state that all criminal offences are to be considered felonies for the purpose of Article 15.13, then the privilege no longer applies to any kind of arrest.

Is it a good idea? Maybe not. There have been governments in Ireland’s past who I would not trust not to have political opponents arrested on their way to narrow votes. There’s no reason to believe we won’t have such governments again. Maybe this is one of those archaic provisions that it’s worth hanging on to.