It is unclear whether a new law is needed to protect the public from people who use their mobile phones to make recordings in public in a manner designed to intimidate and harass, according to Liam Herrick, the executive director of the Irish Council of Civil Liberties.
Increasing numbers of people, including gardaí, journalists and ordinary members of the public, are reporting feeling threatened and harassed by people following them and holding phones up in front of their faces, Mr Herrick said.
“I think it is a serious issue that merits a response but whether it requires new legislation is not fully clear,” he said.
Depending on the context and the circumstances, it is possible for someone to be committing the offence of harassment or a public order offence by persistently waving a phone in someone’s face and getting in their way, he said. On the other hand, the right of journalists and others to film in public places constitutes a safeguard against unlawful activities by others.
“We don’t think that the filming or photographing is the problem. It is more where the use of the camera has the effect, and is intended to be, a form of harassment in and of itself. No doubt there are circumstances where it can be, and is intended to be, threatening.”
[ Legislation preventing protests and ‘incidents of intimidation’ outside homes of politicians passed by Seanad ]
Fine TD Charlie Flanagan, a solicitor and former minister for justice, said he believes the law already contains adequate provision for protecting people, including politicians, from this form of harassment.
Section 10 of the Non-Fatal Offences Against the Person Act, 1997, provides for prison sentences of up to seven years for people found guilty of harassing others and Mr Flanagan said he was “disappointed” that the law was not being used to seek convictions.
The Act says that “any person who, without lawful authority or reasonable excuse, by any means … harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence”.
A person harasses another if, by their actions, they seriously interfere with another’s peace or privacy, or causes another person alarm, distress or harm, according to the Act. A District Court conviction can lead to imprisonment for up to a year, while conviction in the Circuit Court carries a maximum sentence of seven years.
Even where a person is not convicted, the court may order a person not to communicate with another person, or to stay away from their home and workplace, for as long as it deems necessary.
Mr Flanagan said he recently had a man shouting at him in public “in a way that put me in fear for my safety … I didn’t respond, but the idea was that I would respond and there would be an incident.”
Politicians, and female politicians in particular, are subjected to this type harassment on a regular basis, he said. “We need the protection of the law in the same way as the everyday citizens.”
[ Legal issues around protests outside politicians’ homes is ‘complex’, says Department of Justice ]
In June, after a demonstration outside the Co Wicklow home of Taoiseach Simon Harris, gardaí arrested three men for alleged breaches of the Non-Fatal Offences law and said a file would be sent to the Director of Public Prosecutions.
Freedom of expression has to be exercised in a reasonable manner and not in a way that makes a person fear for their safety or be subject to harassment, according to a barrister who did not want to speak on the record.
In relation to gatherings outside people’s homes, he pointed to two judgments of Mr Justice Gerard Hogan, then in the High Court, now of the Court of Justice of the European Union, where he granted a permanent injunction, and later damages, in 2012 and 2013, to a woman in Clontarf in Dublin after a debt collector said he would park his van, which had the name of his debt collection business on it, outside her home if she did not pay a disputed debt.
Mr Justice Hogan said the conduct of the debt collector was a prima facie breach of section 10 of the Non-Fatal Offences Against the Person Act and that article 40.5 of the Constitution provided a guarantee as to the “inviolability” of a person’s home in a democratic society.
“This constitutional guarantee presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world,” the judge said, quoting the late Mr Justice Adrian Hardiman.
“Who [in the circumstances of the case] would feel safe in their house if, prior to entering or exiting their own private dwelling, they were effectively forced to run the gauntlet of passing what amounts to a picket bearing unpleasant messages by a menacing stranger, especially where these messages were designed to intimidate and humiliate?” Mr Justice Hogan asked, before granting the woman damages.
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