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Why isn't 'revenge porn' illegal in Ireland?

Recent cases have highlighted the gaps in the law around cyber harassment.

Image: PA/PA WIRE

THE PROBLEMS AROUND laws to do with posting explicit images of people on the internet have been brought into sharp focus this week.

Speaking on RTÉ’s Today with Seán O’Rourke, a woman called Jane outlined how she discovered that an ex-boyfriend had posted sexually explicit images of her online and a video of them having sex after they had broken up.

The images had been online for year before Jane knew – and when she contacted the gardaí about the images they said there was nothing they could do because of the lack of legislation around the issue.

“The garda I was dealing with said, ‘Jane I’m really sorry. It turns out it’s not illegal. We can’t actually do anything’,” Jane said.

Harassment laws in Ireland

The laws covering so-called “revenge porn” in Ireland – the posting of sexually explicit images of a person online without their consent – are not fully formed.

However, a 2014 Law Reform Commission Issue Paper outlines the problems around laws to do with the broader issue of cyber-bullying.

Cyber-bullying falls under the heading of harassment, which is legislated for in Section 10 of the Non-Fatal Offences Against the Person Act (1997).

Section 10 states:

(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.

The main point here is that harassment of another person must be persistent, and can be carried out by any means of communication.

This means, for example, that someone sending repeated emails to a person abusing them can be convicted of harassment.

However, with regards to posting “revenge porn” the situation isn’t as clear.

Why isn’t ‘revenge porn’ illegal?

In Jane’s case, for example, her ex-partner posted explicit images of her online without her consent.

However, this action doesn’t fall under the legal definition of “persistent” harassment; this is true in other cases also, where a single act of uploading an image of a person doesn’t legally constitute harassment.

In an article for the Law Society Gazette, barrister Stephen Fitzpatrick outlined the problems this posed for victims of ‘revenge porn’.

“Unlike in other jurisdictions, the Irish offence of harassment requires that the behaviour be performed ‘persistently’,” Fitzpatrick wrote.

This potentially excludes the majority of revenge porn cases, as most involve a single act or spree of uploading.

In its Issue Report, the Law Reform Commission states that the laws may be too narrow for dealing with the specific problems to do with cyber-bullying.

While an image or video posted on the internet could be spread and copied thousands of times, the person who originally uploads it only needs to do so once – and this single act does not constitute “persistent harassment” and may not be technically illegal in this sense.

While there are other laws to do with data protection that the posting of images online may breach – the legislation around cyber-bullying isn’t fully developed.

For children there are stronger protections in place for privacy of images, however for adults the situation is not as clear cut.

So what can be done?

Other countries have already put forward laws to tackle ‘revenge porn’.

After a number of highly-publicised incidents of images of women being disseminated on the internet, England included a provision in its Criminal Justice Bill 2015 making it a specific crime.

Revenge porn laws Victims of 'revenge porn', Hazel Higgleton (left) and Hannah Thompson outside the Houses of Parliament in London with Cambridge MP Julian Huppert before a debate in the House of Lords on whether it should become an offence in 2014 Source: Stefan Rousseau

Canada, parts of the United States, Japan and others all have specific laws to do with making the posting of ‘revenge porn’ a criminal offence.

In Ireland, the Law Reform Commission is planning a fully-comprehensive paper on the matter which is expected to be presented to government some time this year.

The Law Reform Commission reviews existing laws and presents recommendations for new laws to government which it may or may not accept.

This will provide a basis for changing the laws.

Speaking to TheJournal.ie, Fitzpatrick said that the Law Reform Commission report should deal with the subject well and be “very comprehensive”.

“The Law Reform Commission are going to be doing a paper on [the laws]… their papers are normally excellent and normally very comprehensive,” he said.

Given their past papers I expect what they come out with to be really well thought out.

Women’s Aid – an advocacy organisation for women facing abuse – is campaigning for the 1997 harassment act to be updated.

Speaking to TheJournal.ie, its director Margaret Martin said that laws around harassment and cyber-bullying needed to be “brought into the 21st century”.

“The legislation is quite outdated,” said Martin.

It’s very limited and in many cases it doesn’t work.

For a person whose images are posted online – trying to get them taken down can be very problematic, she said.

25/11/2015. Womens Aid Conferences Director of Women's Aid Margaret Martin at the National Women's Aid Conference in 2015. Source: Sam Boal/RollingNews.ie

Martin said that as well as stronger criminal laws, better protections also need to be put in place to help people deal with websites that contain the images of a person.

This view is echoed by Fitzpatrick, who said that while dealing with the criminal aspect of harassment is important, it is also important to focus on the civil aspect of cases, so that people have an easier way to remove the images once they have been posted.

As things stand now, a person may have to go through a lengthy and costly court battle to have the images removed – which can be highly traumatic.

“In many cases… people will want a civil option,” said Fitzpatrick, noting that prosecuting the original offender will not remove the image from online if it has been shared widely.

By this view, updating the Non-Fatal Offences Against the Person Act (1997) will not do enough to protect people who have been victims of ‘revenge porn’.

Martin agrees that the issue is complex and much needs to be addressed in the laws.

“For an awful lot of women having images of themselves online can be hugely damaging for them,” she said.

“These are the problems and there needs to be an answer to these issues.

Everyone accepts that these things are complex and will take time to get through… We would hope that it would start to progress as it’s certainly a very live issue.

Have you ever been a victim of ‘revenge porn’? If you would like to share your experience (with full anonymity) please email cormac@thejournal.ie or tips@thejournal.ie

Women’s Aid also have guidelines on their website for what to do if you’ve ever been a victim of ‘revenge porn’.  

Read: ‘It made me feel really dirty’ – Victim powerless against revenge porn attack

Read: Clare man charged with uploading photos of local teenage girls to porn site

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About the author:

Cormac Fitzgerald

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