Joint Committee on Transport and Communications

20th March 2013

Digital Rights Ireland
TJ MCINTYRE FERGAL CREHAN

About
 Digital Rights Ireland  Founded 2005  Aims to protect traditional rights online as well as offline  TJ McIntyre  Chairman, Digital Rights Ireland  Associate Dean, UCD School of Law  Practising solicitor specialising in IT law  Fergal Crehan  Practising barrister with special expertise in data protection, online defamation and social media

Far from being a new phenomenon

Wide range of existing laws
 Post Office (Amendment) Act 1951  S.13: Offensive, etc. telephone messages  Data Protection Acts 1988 and 2003  S.2: Fair obtaining/processing of data  S.6A: Right to object to processing likely to cause distress  S.8: Permits disclosure for investigation of crime  Prohibition of Incitement to Hatred Act 1989  Non Fatal Offences Against the Person Act 1997  S.5: Threats to kill or cause serious harm  S.9: Coercion  S.10: Harassment  Norwich Pharmacal orders  Used since 2005 to identify internet users  Defamation Act 2009  S.36: Blasphemy

Who needs to protect their identities online?

Children

Victims of domestic abuse

Employees and union members

Ryanair v. Johnston
 “The [application] it appears to me forms part of a

war of attrition that the captains are to be dissuaded by legal battle.... I do not accept [the] evidence that the investigation intended was bona fide. It is a feigned exercise and designed to divide those in IALPA from loyalty towards each other.”

Unreported, High Court, Smyth J., 12 July 2006

Whistleblowers

Risks in applying an “offensive messages” law online?

 S.13 Post Office (Amendment) Act 1951  Deals with particularly invasive messages – phone call, voicemail, text  These are messages “TO” an individual not “ABOUT” an individual  Expansion would
Criminalise every web page, online newspaper story, etc. which was intended to cause “annoyance”  Create a remarkably subjective crime  Break the principle of parity between online/offline speech  Add to huge workload of Garda Computer Crime Unit

Comparable English law (s.127 Communications Act 2003) has been extensively misused

 In any case, expanding s.13 would likely be in breach

of Art.10 ECHR:

“Freedom of expression constitutes one of the essential foundations of a democratic society…it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also as to those that offend, shock or disturb …”
 Sunday

Times v UK (No2) [1992] 14 EHRR 123

Suggestions?

Provide adequate funding for DPC

Provide adequate funding for DPC

Resource the Computer Crime Investigation Unit

Thank you
WWW.DIGITALRIGHTS.IE INFO@DIGITALRIGHTS.IE

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