18 September 2020

Discrimination and Online Behaviour

'Reasonable accommodation in Irish equality law: an incomplete transformation' by Lucy-Ann Buckley and Shivaun Quinlivan in (2020) Legal Studies comments 

The UN Convention on the Rights of Persons with Disabilities is the first international human rights convention to state expressly that discrimination includes the failure to provide reasonable accommodation. The duty has been described as transformative but has also been critiqued for its lack of structural impact. This paper evaluates the transformative potential of the reasonable accommodation duty encompassed by the Convention, and considers how its potential can be realised. It argues that the duty is transformative because of the substantive equality it provides for individuals, and because it requires both active engagement with persons with disabilities and proactive consideration of barriers to inclusion, in multiple contexts. However, it contends that full realisation of the duty's transformative potential depends on appropriate legislative formulation. This may be a problem in dualist states where application of the Convention is not automatic and pre-existing legislation may be perceived as satisfying the obligation. The paper supports this contention with an analysis of Irish law, arguing that the full transformative potential of the reasonable accommodation duty has not yet been achieved in Ireland, and identifying the reasons for this. The paper examines the practical consequences of inadequate implementation and highlights pitfalls and best practice.

In the UK the Law Commission  has released proposals for reform regarding harmful online behaviour including abusive messages or emails, cyberflashing, pile-on harassment and the malicious sharing of information known to be false. The Commission comments

 In the last two decades, the rise of the internet and social media has created extraordinary new opportunities to engage with one another on an unprecedented scale. However, the existing communications offences have not kept pace with changes in how we communicate: in some cases they fail to address harmful behaviours online, and in others they risk interfering with our rights to freedom of expression. The proposals ... aim to ensure that the law is clearer and effectively targets serious harm and criminality arising from online abuse. This is balanced with the need to better protect the right to freedom of expression. 

The proposals include: 
  •  Reforms to the communications offences (the Malicious Communications Act 1988 (MCA 1988) and the Communications Act 2003 (CA 2003)), to criminalise behaviour where a communication would likely cause harm. This would cover emails, social media posts and WhatsApp messages, in addition to pile-on harassment (when a number of different individuals send harassing communications to a victim). This would include communication sent over private networks such as Bluetooth or a local intranet, which are not currently covered under the CA 2003. 
  • Introduction of the requirement of proof of likely harm. Currently, neither proof of likely harm nor proof of actual harm are required under the existing communications offences. 
  • Cyberflashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003. This would ensure that additional protections for victims are available. 
  • Raising the threshold for false communications so that it would only be an offence if the defendant knows the post is false, they are intending to cause non‑trivial emotional, psychological, or physical harm, and if they have no excuse.
The Commission comments that online abuse is covered in the ‘communications offences’ found in section 1 of the MCA 1988 and section 127 of the CA 2003 

 these laws suffer from a range of problems. The offences do not adequately criminalise certain conduct – such as cyberflashing and pile‑on harassment – while the threshold of criminality, especially when applied to the online space, is often set too low. This can mean that freedom of speech is not properly protected. In short, these offences do not target the harms arising from online abuse. The result is that the law over‑criminalises in some situations, and under‑criminalises in others. ... 
  We provisionally propose two complementary offences to replace section 1 of the MCA 1988 and section 127 of the CA 2003: The first new offence relates to a defendant sending or posting a communication that was likely to cause harm to a likely audience. It would apply where a defendant intends to harm, or is aware of a risk of harming when sending or posting a communication, without reasonable excuse for doing so. The offence does not require proof that anyone was actually harmed. The aim of this proposed reform is to provide an effective mechanism for addressing a range of online behaviours. This could cover harmful and abusive emails, social media posts and WhatsApp messages, as well as pile-on harassment. The audience could include the recipient of a message, the defendant’s social media followers or other people – for example, someone else who sees a harmful tweet on Twitter. “Without reasonable excuse” is an element of the offence that must be proven by the prosecution. 
“Reasonable excuse” should be defined to include where the communication either was or was meant as a contribution to a matter of public interest. Under the proposals, the jury or magistrate will decide whether the defendant acted without reasonable excuse, but this factor must be considered. This requirement helps to ensure that freedom of expression is adequately protected. For example, it is unlikely that someone criticising the decision of a politician on Twitter, or airing a view on a particularly controversial issue, would be found to lack reasonable excuse. 
The second new offence addresses knowingly false communications. Under the existing offence, it is a crime to send a knowingly false communication for the purpose of causing “annoyance, inconvenience or needless anxiety”. Our proposals would raise this threshold. Our suggested threshold would be met if the defendant sends or post a communication that they know to be false, they intend to cause non‑trivial emotional, psychological, or physical harm to a likely audience, and they send it without reasonable excuse. 
Our proposals wouldn’t cover communications that the defendant believes to be true – no matter how dangerous those communications may be. The issue of ‘fake news’ lies beyond the terms of reference of this project so is not an issue that we tackle. 
We have also proposed reforms to cover cyberflashing which, for victims, is often experienced as a form of sexual harassment, involving coercive sexual intrusion into their lives. Whilst much of this behaviour would be captured by the proposed reforms, outlined above, we are also proposing: Amending Section 66 of the Sexual Offences Act 2003 to include the sending of images or video recordings of one’s genitals (“dick pics”) including when shared over AirDrop. That additional protections, such as Sexual Harm Prevention Orders, could be available when appropriate.