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Harmful and Malicious Electronic Communications Bill – some thoughts


I was happy to give some thoughts to Conor McMorrow of RTE’s The Week In Politics (segment begins at 28.30), regarding Senator Lorraine Higgins’ (Labour) Private Member’s Bill, which you can read here. I only had a few seconds to talk, so I’d like to explain my thoughts in a little more detail here.

It’s welcome that the Government is, at last, paying some attention to the problem of cyberbullying and online aggression. The bill’s mention of incitement to ‘commit suicide’, and incitement to cause serious harm to oneself are welcome. Additionally, the inclusion of ‘explicit content of the other’ (i.e. revenge porn) is welcome, but far too brief for a complex phenomenon – ‘our efforts would be better spent seeking legislation to remedy the suffering that victims actually experience’.

However, with regard to the general issue of harmful and malicious electronic communication, while its authors are clearly well meaning, they are quite naïve. At the outset, making cyberbullying illegal won’t make it suddenly disappear. The Internet Content Advisory Group Report of May 2014 largely came to this conclusion too and did not recommend legislation of this kind. There is another Bill in process which seems to be more like what the ICAG recommended, so one has to wonder about the passage of Senator Higgins’ Bill.

If passed, it may give some comfort to parents, but I suspect that will be quite short-lived. Much of what is in the Bill is already illegal, yet we are not seeing many prosecutions of cyberbullying. I suggest that there are two major reasons why that isn’t happening, both of which are present in the ICAG report, and neither of which this Bill tackles.

Firstly, what is noticeably missing from this bill is the issue of evidence. Every contact leaves a trace, but online contact is considerably more complicated. How exactly do you prove someone posted something? And how can you stop it from being shared?

For example, the ancillary orders of the Bill state that if a court decides a person should not be convicted of an offence, they can still be ordered to remove or delete specific electronic communications.

On the one hand, it shows that the author does not understand how hard it can be to remove content from the internet – ‘the internet never forgets’. What if a specific electronic communication is shared and copied beyond the initial poster’s control? How can they remove those copies?

And on the other, it shows that the author does not understand how cyberbullying is currently presenting amongst young people (nor how it is likely to further evolve if this Bill is passed). What often happens is that when an aggressor posts such a communication, they leave it up just long enough for the victim to see it and be hurt by it, and then remove it. Unless the victim has taken a screenshot, they have no evidence it occurred. So what do they bring to the Gardaí? Nothing? In that case, what powers will An Garda Síochána have to retrieve evidence from non-Irish companies?

The ICAG Report recommended that the new Rules of the Superior Courts be created for this purpose. A year on, what is the status of that? From my work on the EU Child Safety Online Project, I can safely say that there are many international, diplomatic, and technical complications to be overcome in the simple act of getting proof that a harmful or malicious electronic communication act into the hands of law enforcement. We seriously need co-ordinated action at European level on these matters but there must be political will at home to do so first.

Secondly, what is also missing from this Bill is the issue of resourcing. For this bill to be in any way enforceable, our police force needs significant amounts of training and staffing to deal with this issue. They could do with a lot more of that in this area anyway, but particularly if this Bill is to pass and become law. For example, consider a child is being bullied on Snapchat, where images automatically disappear within seconds. Snapchat has over 100 million active users and its 330 employees are entirely based in California – how likely is it that they will respond to a request from a Guard in rural Ireland? I do not think it wise to assume that they will pay much attention to digital forensic requests from dear old Ireland, unless our police force are heavily resourced to put pressure on them to do so. Moreover, and again from the ICAG report, what is the current state of the revised role of the Office for Internet Safety?

Finally, cyberbullying and online safety are complex phenomena which require broad, holistic, community-wide responses but more importantly political leadership. All across the country there are wonderful, committed and passionate people engaged in online safety issues, but to be honest it is far too piecemeal, unregulated, and inconsistent. We have had enough ‘awareness campaigns’, what is needed is substantial curriculum reform. Again, the ICAG report recommended that “internet safety and digital literacy skills are taught as a core element of the curriculum at both primary and post-primary levels”. Where are we with that?

I would prefer if, instead of writing laws like this which few people want, legislators turned their attention to ensuring the execution of the recommendations of the ICAG. Additionally, I would suggest that legislators themselves lead by example in engaging respectful, civilised and mature online communication.

But ultimately, with regard to cyberbullying and child safety online, the government needs to stop shying away from its duty of care – which means resources for victims, resources for teachers, resources for law enforcement – but not laws.

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