Online Crimes

1. Harassment
Traditional principles re. harassment:
a) Governed generally by s. 10 of the Non-Fatal Offences Against the Person Act 1997
and can only be tried by way of criminal proceedings. There is no tort of harassment
in this jurisdiction.
b) To harass means to "seriously interfere with the other's peace or privacy or causes
alarm, distress or harm to the other"
c) New legislation now specifically covers online harassment – the Harassment,
Harmful Communications and Related Offences Act 2020, commenced on 10
February 2021.
d) See also new Criminal Justice (Miscellaneous Provisions) Act 2023 Illustration of
previous difficulties

Difficulties with previous legislation

- S.10 offence of harassment under the 1997 Act contains requirement of
"persistence" - this was considered unsuitable for online harassment, which may be
a once-off incident such as a revenge porn posting.
- Also felt that the action had to be 'directed at' the victim, which caused difficulties
when the material was uploaded generally to the internet for all users to see.

Illustration of Previous Difficulties

- In 2014, a man was charged in with 'fraping' under the s.2 of Criminal Damage Act
1991, not for unauthorised accessing of data, but for "damaging property." The
Court accepted that it was more a case of harassment than damage, but held that
reputational damage had taken place, and imposed a fine of 2000 euro.
- Anecdotally, the gardai tended to treat online behaviour as less of a priority unless
there was a threat to life and had difficulty suggesting remedies for victims.

Criminal Justice (Misc provisions) Act 2023

OLD 1997 ACT:
10. (1) Any person who, without lawful authority or reasonable excuse, by any means
including by use of the telephone, harasses another by persistently following, watching,
pestering, besetting or communicating with him or her, shall be guilty of an offence.
2) For the purposes of this section a person harasses another where—
a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the
other's peace and privacy or causes alarm, distress or harm to the other, and
b) his or her acts are such that a reasonable person would realise that the acts would
seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the
other.

NEW 2023 ACT:

23. A person shall be guilty of the offence of harassment where—
(a) the person, without lawful authority or reasonable excuse, persistently, by his or her
acts, intentionally or recklessly, at the time when the acts occur or when the other becomes
aware of them —
(i) seriously interferes with another’s peace and privacy, or
(ii) causes alarm, distress or harm to the other,
and
(b) the person’s acts are such that a reasonable person would realise that the acts would
seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the
other, at the time when the acts occurred or when the other becomes aware of them.

2. Online Harassment
New forms of harassment facilitated by internet
- Online harassment takes many forms, some of which are specific to the internet. The
classic form of online harassment is that which echoes the behaviour described in
section 10 of the 1997 Act, and could be performed by repeatedly texting, emailing
and sending social media messages to a victim, very often in conjunction with more
traditional methods of communication, and possibly even physical besetting.

Example of what is commonly a multi-faceted offence:

- R v Rumblelow [2012] EWCA Crim 2888, the Court of Appeal proceedings concerned
a two and a half year sentence which had been imposed on a woman, who suffered
from ADHD and Asperger’s Syndrome, and who had become fixated with British
television actress Rosie Marcel. For most of 2011, the appellant had subjected Ms.
Marcel to a campaign of harassment, which included:
 sending abuse emails and tweets to Ms. Marcel, her sister and husband;
 setting up fake social media accounts to imitate those three people;
 tweeting allegations that Ms. Marcel was having an affair;
 hacking into the social media accounts of a former acquaintance and sent
threatening messages to the actress and her sister, purporting to come from
the former acquaintance, who was arrested on account of those messages;
 posting messages on Facebook falsely claiming that the actress' brother had
died;
 sending messages to Ms. Marcel and her husband, stating that the actress
would be raped and murdered

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 Selection of new offences created by online use:
 Revenge Porn.
 Sextortion
 Online identity theft - 'fraping' or 'catfishing'.
 Trolling.
 Upskirting/ down-blousing.

New forms of harassment facilitated by internet

Revenge Porn:
- Revenge pornography (“revenge porn”) has elements in common with many of the
activities described below.
- It consists of the publication online of material designed to distress or harm the
victim, as with the general offence of harassment. It involves the use material which
may be the property of another person without their consent, as with catfishing and
fraping offences.
- What distinguishes revenge porn, however, is two particular features.
 The perpetrator is usually known, often intimately, by the victim, and the
material which is the subject of the activity – photographs, video or audio
clips - has often been previously shared between the parties with their
consent.
 The motivation for revenge porn is often anger or spite on the part of the
perpetrator, who wishes to retaliate against the other party, often because
that party ended an intimate relationship between them.
 An English case, Khodaparast v Shad [1999] EWCA Civ J1124-22, featured an
early, pre-internet iteration of the phenomenon, and was brought under
malicious falsehood.
 It was specifically made a criminal offence in the UK in 2015 but has only
recently been criminalised in this jurisdiction.
Sextortion:
- Behaviour that is not unlike revenge porn, but for financial gain rather than revenge.
The photos or videos involved may have been consensually shared between the
parties at one stage, as typically occurs in revenge porn; they may, however, have
been obtained by psychological manipulation of a vulnerable party during ‘sexting’.
The practice has been known to result in tragic outcomes, where the threat of
releasing the intimate images having been known to drive the victims to commit
suicide.

Online Identity Theft:

Fraping:

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 - In this 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.

Catfishing:
- This does not involve the hacking of an existing account, but rather the creation from
scratch of a new account. It can take two different forms. Sometimes, it involves the
creation of a fake identity where the sole purpose is for the poster to disguise their
true identity. In those circumstances, the online identity which they portray does not
involve targeting a specific individual, and the only efforts they make to conceal their
identity is to use a fake name and profile picture.
- In other cases, however, the 'catfisher' wishes to give the impression that they are a
specific individual, and the fake identity they create is therefore designed to trick
users into believing that the content they subsequently create for that identity is
being generated by the person whose identity they have misappropriated. This is
similar in effect to the practice of fraping, except that it is done without hacking into
a user's existing account.
- Example: In 2011 a 34-year-old Roscommon man, Paul Monaghan, set up a fake
account, in the name of an ex-girlfriend, on a website whose members offered
sexual services. He posted various messages, purporting to come from the woman,
and giving her name and postal address, which suggested she was available for
sexual services in lewd terms, and attracted comments from users of the website in
similar terms.
 The posts had been on the website for 8 months before the woman, a
childcare worker, became aware of their existence. They had a profound
effect on her, resulted in her having to give up her job and undergo a course
of counselling. The gardai traced the IP address to the home of Mr.
Monaghan, who had a brief relationship with the woman seven years
previously.
 He was charged under s.10 of the 1997 Act, and having admitted to the
offence, was given a four-year sentence, suspended in its entirety for four
years.

Trolling:
- This is the practice of posting insulting or inflammatory material online about a
person, sometimes as a result of something said or done by the object of the
comment, but often for no discernible reason in particular. In many cases, the
person who is the object of the trolling is not personally known to the poster, and
the personal nature of much cyber harassment is very often missing from trolling.
- Example: Over a period of four weeks in 2015, a 28-year-old man, Stephen French,
posted a series of threatening messages to Senator Lorraine Higgins, including I'm
going to blow your big f***ing Jew nose right off ... nothing better than to fill a rat's
mouth with lead". Following his arrest, French pleaded guilty to three counts of

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 threatening to kill or cause serious harm to Ms Higgins, and two of harassing her.
French, who had mental health issues, was given a six month sentence, but given his
lack of previous convictions, the Court was satisfied to suspend the sentence for two
years.

Upskirting/ down-blousing:
- It is debatable as to whether this practice, which involves the surreptitious taking of
photographs of a person’s underwear, most commonly in a public place, is strictly
speaking a form of harassment, particularly in circumstances where the victim may
not be aware of the act, and it is performed usually for the sole pleasure of the
offender. In some cases, however, the resultant images are uploaded to the internet,
and where the victims can be identified, it is certainly arguable that this constitutes a
form of harassment.
- Example: A successful conviction for the offence was recently obtained in Dublin
District Court, when an American tourist was sentenced to two months’
imprisonment for using his phone to film up the woman's skirt at the Dublin Pride
Parade in July 2019. The charge was brought under section 45(3) of the Criminal Law
(Sexual Offences) Act 2017, which provides that “A person who intentionally engages
in offensive conduct of a sexual nature is guilty of an offence.” The Court accepted
that such an offence had been committed, with the victim given evidence as to her
humiliation and concern that a recording of her private person would be put "all
over the internet."

3. Online Harassment - Remedies

Online harassment as a criminal offence:
1) The Harassment, Harmful Communications and Related Offences Act 2020
Section 2
A person who distributes, publishes or threatens to distribute or publish an intimate
image of another person
a) without that other person’s consent, and
b) with intent to cause harm to, or being reckless as to whether or not harm is
caused to, the other person, is guilty of an offence.
- Maximum sentence of 7 years.
Section 3
A person is guilty of an offence where—
a) he or she records, distributes or publishes an intimate image of another person
without that other person’s consent, and

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 b) that recording, distribution or publication, as the case may be, seriously interferes
with that other person’s peace and privacy or causes alarm, distress or harm to that
other person.
- Maximum sentence (only tried summarily ) of 12 months
Section 4
A person who -
(a) by any means -
(i) distributes or publishes any threatening or grossly offensive communication about
another person, or
(ii) sends any threatening or grossly offensive communication to another person, and
(b) with intent by so distributing, publishing or sending to cause harm, is guilty of an
offence.
- Maximum sentence of 2 years.
- Issues of note: Communication can be "about" the victim, and no
requirement for "persistence".

Online harassment – possible civil proceedings:

Harassment
a) Torts in UK and Canada. Not in this jurisdiction, left undisturbed by 2020 Act.
b) Caplan v Atas [2021] ONSC 670 in of interest, the Superior Court of Justice in Ontario,
Canada, recognised for the first time a common law tort of internet harassment. The
court also granted a novel remedy to the plaintiff, ordering that the title to the harmful
content be transferred to the plaintiff, allowing them to have them immediately deleted
from all social media sites.
Breach of Copyright
a) Section 114(1) of the Copyright and Related Offences Act 2000: "a person who, for
private and domestic purposes, commissions the taking of a photograph or the making
of a film has, where copyright subsists in the resulting work, the right not to have the
work or copies of the work made available to the public.”
b) Taking of selfie means the "private or domestic purposes" exception is not required
c) Availability of emergency injunction under section 40(5A)
Intentional Infliction of Emotional Suffering
- Circuit Court case of Cronin v Kostal: "‘a form of harassment or a form of
misconduct ...that any right-thinking person would consider to be gratuitous or
reprehensible ... done either with the intention of humiliating or embarrassing the
butt of the harassment..."
Breach of privacy

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 - Clarke v O'Gorman [2014] IESC 72: "“if it can be shown that the existing law does not
adequately protect the constitutional rights of the citizen” then “a separate claim for
breach of constitutional rights can be invoked.”
- Recent ECtHR decision in Volodin v Russian (No.2) (app 40419/19) linked cyber
harassment against women with domestic violence - "“cyber harassment is currently
recognised as an aspect of violence against women and girls and can take a variety of
forms, such as cyber-violations of private life ... and the taking, sharing and handling
of information and images, including intimate ones”

4. Online Harassment – In the Workplace or School

Difference between Bullying and Harassment in the workplace
a) Harassment is behaviour that "has the purpose or effect of violating a person's dignity
and creating an intimidating, hostile, degrading, humiliating or offensive environment
for the person." It must be related to a discriminatory ground under equality legislation
– gender, marital status, family status, sexual orientation, religion, age, disability, race or
membership of travelling community.
b) Bullying is "repeated inappropriate behaviour, conducted by one or more persons
against others, at the place of work or in the course of employment, which could
reasonably be regarded as undermining the individual's right to dignity at work."
(Quigley v Complex Tooling and Moulding [2009] 1 IR 349)

Harassment at work
a) Clearly the harassing by an employee of any other person will expose them to possible
liability under the new HHCRO Act 2020.
b) It may further cause them problems with their employer if such behaviour falls foul of
company regulations on behaviour in the workplace.
c) The employer themselves may be held liable for harassment conducted by the
employee. Such liability will accrue regardless of whether the employee was acting in
the "course of employment" - under s.14 of the Employment Equality Act 1988, the
employer will be liable if the victim was being harassed in the course of their
employment.
- This section was considered by the Labour Court in McCamley v Dublin Bus (2016) 27
ELR 81. Company was able to avail of the defence that it "took such steps as are
reasonably practicable to prevent the person from harassing the victim."

Harassment at school
a) The traditional conception of "school-yard bullying" has been supplanted by online
harassment, which takes place 24/7, which has resulted in several tragic cases leading to
teenagers taking their own lives. The question arises as to whether the school can be
held liable for this behaviour if it fails to address it, even if such behaviour takes place
away from the school grounds.

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b) In Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 the English Court of
Appeal upheld the decision not to find a school liable for the psychiatric injuries caused
to a pupil due to bullying away from the school. The judge held that the duty of the
school went ‘no further than to prevent the bullying actually happening inside the
school...’ It accepted that there may be occasions when a school breaches the duty of
care by failing to combat behaviour that takes place outside of school, but these were
‘these occasions will be few and far between.’

5. Other Crimes Conducted via the Internet

Two other types of criminal offences will be considered:
1. Content crimes – the downloading and sharing of child pornography, in which the
crime is not targeted at a specific victim;
2. Technological crimes - involving computer hacking, fraud and theft, usually
performed for commercial gain.

Child exploitation material

- The unregulated nature of the internet, and the sheer volume of material it hosts,
has resulted in difficulties for State agencies to censor content displayed online.
- The Constitution provides a restriction on the publication of indecent material.
Article 40.6.1 guarantees, as a personal right, the right to freedom of expression, but
restricts the right by providing that "The publication or utterance of seditious or
indecent matter is an offence which shall be punishable in accordance with law."
- At an EU level, child pornography is dealt with by Directive 2011/93/EU which
obliges member states to criminalise the offences of online child sexual abuse and
pornography.
- The Internet Service Providers Association of Ireland (‘ISPAI’) operates a website,
hotline.ie, which allows members of the public to contact the Association's members
with any information concerning such illegal material. Access to such websites will
then be blocked by internet access providers.

Legislation
- Previous legislation – the Child Trafficking and Pornography Act 1988 - was
problematic as it dealt primarily with "possession" of material, and it was
questionable as to whether people who simply viewed child exploitation material
online without storing it on their PC or mobile device actually "possessed it".
- This has been cured by the Criminal Law (Sexual Offences) Act 2017, which know
creates an offence for either "acquiring" or "possessing" such material.

The Criminal Law (Sexual Offences) Act 2017

Section 4 - Invitation etc to sexual touching:

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 - This creates an offence where a person invites, induces, counsels or incites a child
(someone under the age of 15 years) to touch either themselves or another person
for the sexual gratification of the person.

Section 5 - Sexual Activity in presence of a child:

- This concerns behaviour which is broadly similar to section 4, although in this case
the activity is performed by the person committing the offence, with the intention
that the child should be observing it via the internet.

Section 7 - Meeting child for purpose of sexual exploitation:

- This conduct often takes place after the ‘grooming’ referred to in section 8.. A
notable development in the 2017 Act is that it applies to someone who ‘makes
arrangements with the intention of meeting a child’, meaning that the person no
longer has to physically travel and/or meet the child in order to be found guilty of
the offence.

Section 8 - Use of information and communication technology to facilitate sexual

exploitation of child:
- This is the most technology-specific of the offences in the 2017 Act and removes the
previous legislative requirement for some form of physical ‘offline’ meeting to occur.
Section 8(a) is intended to cover communication via the internet either with a child,
or with any other person, with ‘a view to facilitating’ the sexual exploitation of a
child. By criminalising for the first time the sending of sexually-explicit material to a
child, it can be seen to deal with the online manipulation and abuse of children
through what is commonly referred to as ‘grooming’.

Section 14 - Possession of Child Pornography:

- This section deals with a previous lacuna in the law which required the person to
‘knowingly possess’ the material to be guilty of an offence, or where such material
downloaded but then deleted, as discussed in the English case R v Porter [2006]
EWCA Crim 560.

Technological crimes:
- The Criminal Justice (Offences Relating to Information Systems) Act 2017 is now the
main piece of legislation governing the theft, fraud and hacking offences performed
via the internet.
- The Act gives effect to a number of the provisions of the EU Cybercrime Directive
and creates five new offences in respect of the hacking and misuse of computers.
- Section 2: Accessing information system without lawful authority, etc.
- Section 3:
 Interference with information system without lawful authority
 Hindering or interrupting the functioning of an information system.
- Section 4:
 Interference with data without lawful authority
 Deleting, damaging or altering data.
- Section 5: Intercepting transmission of data without lawful authority
- Section 6: Use of computer programme, password, code or data for purposes of s. 2-
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Issue of anonymity:
- One of the difficulties in bringing proceedings against a party who has been accused
of misuse of an information system is the fact that as the acts are done via the
internet, the perpetrator is usually anonymous. When the behaviour involves a
threat of blackmail, not only is the victim faced with having to get an injunction
against an anonymous defendant, but they may also want to apply for such an
injunction anonymously, so as not to damage their own company's reputation.
- In the English case of PML v Person(s) Unknown 2018 EWHC 838, the plaintiff
company's computers having been illegally accessed and a large amount of data
stolen. The company's directors were threatened that confidential material would be
uploaded the internet unless they were paid £300,000 in bitcoin currency. Having
been served with an injunction by email in March 2018, the defendant uploaded the
information anyway.
- The claimant applied obtained a court order in that jurisdiction to have access to the
website blocked. The claimant was also allowed bring the proceedings anonymously
on the basis that "The protection of blackmail victims in both these ways is an
important legal policy, which I found prevailed over any competing considerations at
this stage of this case."
- Compare this to the situation in Ireland.

Financial Harm/Fraud
- Criminal Justice (Offences Relating to Information Systems) Act 2017
- False advertising - Criminal Justice (Theft and Fraud Offences) Act 2001
- Online reviews

The Growth of False Advertising

- A growing area of concern in respect of online advertising is the use of fake
endorsements by well-known personalities, which can not only cause financial loss to
the victims of a financial scam but can also cause reputational damage to the person
whose identity is being falsely used to promote the product.
- Amongst the many Irish personalities to have been the victim of this type of scam
are Miriam O'Callaghan, Ryan Tubridy, Michael O'Leary, Conor McGregor and Gavin
Duffy. As well as seeking the identity of the scammers through Norwich Pharmacal
Orders, some have also sought to hold the platform itself responsible for hosting the
advertisements.

The importance of online reviews

- With online customer reviews, as opposed to the more traditional format, the
commentary is unfiltered, and its impact is far-reaching. This has resulted in online
reviews provoking a growing volume of litigation, with the victims of critical reviews
often having difficulty controlling the damage caused due to the fact that they are
often posted anonymously.

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 - The traditional laws of defamation will apply to the posting of online reviews. While
the defence of Honest Opinion is often advanced when a trader brings proceedings
against a reviewer, the defence will fail if the opinion is based on factual
inaccuracies.
- In a Canadian case, Zoutman v Graham [2019] ONSC 2834 the plaintiff doctor had
testified as an expert witness in support of a physician who had attended to a patient
who subsequently died. The defendant was the brother of the deceased, who posted
an extremely critical review of the plaintiff on a medical rating website, warning
potential customers against using his services. Crucially, the reviewer falsely
purported himself to have been a patient of the plaintiff. The court rejected the
defence of fair comment, noting that the defendant was motivated by malice, and
awarded the plaintiff $50,000.
- A similar decision was recently arrived by the English HC in Summerfield Browne v
Waymouth [2021] EWHC 85 (QB) which held that the plaintiff solicitors had been
defamed by a negative review posted on trustpilot.com. The Court held that calling
them “scam solicitors” was clearly an assertion that, as a matter of fact, the firm
were dishonest and fraudulent.
- A recent decision of the FCA (The Federal Court of Australia) in Colagrande v Kim
[2022] FCA 409 awarded Aus$420,000 (c. €220,000) in damages to the plaintiff, a
cosmetic surgeon based on Queensland who specialised in BBLs. A fake review had
been posted by a rival doctor on a website entitled "RateMDs", which claimed that
he had been previously convicted of a sexual assault.
- It should be stressed that these issues have not yet received juridical consideration
in this jurisdiction, and the decisions therefore are merely of persuasive authority.

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