A recent Supreme Court decision has extended the scope of harassment law to include communications not directly addressed to the subject.

In a briefing note, McCann FitzGerald lawyers Audrey Byrne, Karyn Harty, Bébhinn Bollard, Lesley Caplin and Ciara FitzGerald explain that those who post offensive comments can now be pursued, not only for defamation, but also for harassment.

False material

In 24 July decision DPP v Doherty, the Supreme Court has definitively offered a remedy to those who believe they have been subject to online abuse, or the publication of false material online.

This moves the available remedies on from defamation actions, which had been the preferred course, and offers an additional means of recourse.

Complainants may now go to An Garda Síochána under harassment laws – section 10 of the Non-Fatal Offences Against the Person Act 1997.

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.

Recklessly interfere

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, the McCann FitzGerald lawyers write.

The Supreme Court case centred on a detective garda who sent offensive letters and emails to associates of the complainant.

She also distributed vulgar leaflets throughout the victim’s home area, with only one piece of correspondence sent directly to the subject.

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.

Leafleting

The appellant’s lawyers argued that the emails did not come under the meaning of the legislation, and that the leafleting was not a communication with one person.

They also argued that the appellant had not engaged in physical watching or ‘besetting’ of the complainant.

The Supreme Court dismissed the appeal and reinforced the decision of the trial judge and the Court of Appeal.

The judgment says that harassment by communication does not require the victim to be directly addressed, provided the mails were manifestly for the victim’s eyes, and sent to close associates.

'Besetting'

A majority of the Supreme Court also ruled that the appellant was guilty of harassment by communicating and not by ‘besetting’, which requires physical presence, albeit at a distance.

The McCann FitzGerald lawyers write that the ruling is significant, in that an offensive post or publication, not directly targeting a complainant, can now be classed as an offence.

They conclude that similar indirect social-media posts about a subject could fall under the same categorisation.