Dáil Éireann Debate, Tuesday - 27 November 2012
516. Deputy Aodhán Ó Ríordáin asked the Minister for Justice and Equality if he will clarify the application of the Non-Fatal Offences Against the Person Act (1997) to instances of cyber bullying and the way Gardai should interpret the law in such cases; and if he will make a statement on the matter. [52728/12]
View answerI take the opportunity presented by the Deputy's question to set out generally the legislative provisions relating to the investigation and prosecution of offences which may arise from cyberbullying. Bullying in any form, including cyberbullying, may amount to harassment and may therefore be an offence under section 10 of the Non-Fatal Offences against the Person Act 1997, as amended.
Section 10 provides that 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, is guilty of an offence. For the purposes of Section 10, 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.
A person convicted of an offence under Section 10 is liable on summary conviction to a class C fine or to imprisonment for up to 12 months or to both, or on conviction on indictment to a fine or to imprisonment for up to seven years or to both. As I stated in the House on 7 November, my attention has been drawn to the difficulty which, it seems, is presented by the need to demonstrate persistence in the harassment. As I said on that occasion, I have asked the Law Reform Commission to examine the issue and I await its conclusions.
The offence of threatening to kill or cause serious harm in section 5 of the 1997 Act may also be relevant. Anyone convicted of an offence under that section is liable on summary conviction to a class C fine or to imprisonment for up to 12 months or to both, or on conviction on indictment to a fine or to imprisonment for a term not exceeding ten years or to both. The Prohibition of Incitement to Hatred Act 1989 may be relevant to some instances of cyberbullying. The Act prohibits incitement to hatred on account of race, religion, nationality or sexual orientation.
The Communications (Retention of Data) Act 2011 facilitates the investigation of cyberbullying offences. It permits the retention of and access to data for the purposes of the prevention, detection, investigation or prosecution of serious offences. A serious offence is an offence punishable by imprisonment for a term of five years or more as well as offences listed in schedule 1 to the Act. The Deputy will note that the offences at Sections 5 and 10 of the 1997 Act meet the criteria and are therefore considered to be serious offences for the purposes of the 2011 Act.
On the question of interpreting the law, the practice in this jurisdiction is that the Oireachtas enacts the legislation, the Garda (or other relevant agency) enforces it and the courts interpret and apply it.
