knowledge | 4 September 2020 |

Supreme Court Expands Scope of Harassment to Offensive Online Posts

Since the emergence of online publication, social media platforms and their users have been subject to a diverse range of litigation.  Many of these proceedings have arisen following the publication of offensive and/or blatantly false material online.  While defamation has been the preferred cause of action in such cases, a recent Supreme Court judgment may now provide victims of online abuse with an additional means of recourse, even if the material is not sent to them directly.  That is, the ability for a person to make a harassment complaint to An Garda Síochána on foot of the online abuse.

Background to the decision

In DPP v Doherty[1] the Supreme Court definitively extended the scope of harassment to include communications which are not directly addressed or sent to the subject of those communications.

As a result of this judgment, those who post offensive content about others online could not only be pursued for defamation, but could also potentially be prosecuted for harassment by the Director of Public Prosecutions under section 10 of the Non-Fatal Offences Against the Person Act 1997 (the "1997 Act").

The 1997 Act provides that a person is guilty of harassment if they, without lawful authority or reasonable excuse, harass another “by persistently following, watching, pestering, besetting, or communicating” with him or her by any means, including a phone.  The accused must also by his or her acts, intentionally or recklessly interfere with the other’s peace and privacy or cause alarm, distress or harm to the other.

Facts

The appellant, a Detective Garda, sent a number of highly offensive letters and emails to people closely associated with the victim.  In addition, she distributed vulgar leaflets throughout the victim’s neighbourhood.  Despite the scale of these activities, only one piece of correspondence was sent directly to the victim.  The appellant was convicted of a single count of harassment and was sentenced to three years imprisonment.  She unsuccessfully appealed this conviction to the Court of Appeal but was subsequently granted leave to appeal to the Supreme Court.

Counsel for the appellant made the following submissions:

  1. Emails to people other than the victim did not constitute communication within the meaning of the legislation;
  2. leafleting a neighbourhood could not be considered communication with a specific person; and
  3. as the prosecution had described the alleged harassment in terms of “besetting”, the case must fail as this required physical watching or a physical presence, something which the appellant had not engaged in.

Held

In dismissing the appeal, the Supreme Court endorsed many of the conclusions reached by the trial judge and the Court of Appeal.  The court declared that “communicating with someone means that some information is made common as between the person communicating and the person communicated with”.[1]  This the court said, did not require the victim to be directly addressed.  Consequently, it found that indirect communications could constitute harassment provided they were manifestly for the victim’s eyes.  As the appellant had sent emails to people with close ties to the victim, the court was satisfied that she clearly intended for the victim to receive and read them.  A similar conclusion was reached in respect of the leaflets distributed throughout the victim’s neighbourhood.

A majority of the Supreme Court also expressed the view that the appellant was guilty of harassment by communicating and not by besetting.  They concluded that the term ‘beset’ requires some physical presence, albeit at a distance.  Nevertheless, merely because the prosecution described the harassment using this term, did not mean that the conviction should be quashed.

Implications

This judgment represents a significant development in the law on harassment and confirms that an offensive post or publication which is not shared with the subject of the content could still be an offence, when the content was clearly intended to be seen by the subject. Taken together with the reasonably broad interpretation of ‘persistent’ in the definition of harassment adopted by the High Court in DPP (O’ Dowd) v Lynch[2], future prosecutions for these types of indirect online posts are to be expected. While in this case email was the medium of indirect communication, there appears to be no reason why a similarly worded Facebook status or Tweet for example would not draw the same condemnation from the courts.

Also contributed to by Sean Kehoe


  1. [2020] IESC 45
  2. Ibid [23]
  3. [2010] 3 IR 434

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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