Are the Gardaí ready to to challenge cyber-flashing?

Eva O’Beirne examines the precarious legislation around online sexual harassment

On 17 January 2022, an online Zoom vigil for Ashling Murphy was interrupted by a man who “cyberflashed” the attendees. He exposed himself and masturbated. On 23 February 2022, a Zoom webinar on violence against women was crashed by several individuals who shouted sexist and racist abuse and shared pornographic content. These incidents are notable, but to most women on the internet, being flashed nonconsensually is almost an everyday occurrence.

Cyber-flashing is far from a new concept, arguably it has existed since the invention of emails and text messages. From what we’ve seen in the past, copycat incidences are on the rise and they’re not being deterred from happening. Minister for Justice, Helen McEntee, recently spoke in the Dáil on the issue, underlining that it is technically illegal in Ireland due to the Sexual Offences Act 2017. “Flashing” is not restricted to physical places and “would also apply in the online context” according to the Minister. In addition, she said, “it is an offence under section 45(3) of that Act to intentionally engage in offensive conduct of a sexual nature.” 

One must consider that there was supposed to be a specific section of the Harassment, Harmful Communications and Related Offences Act 2020, colloquially known as Coco’s Law, that would make the specific act of cyber-flashing illegal. But it was abandoned due to complications and the fact that it would delay the process of making image-based sexual abuse illegal.

I think the lack of detail opens up too many opportunities for Gardaí to undermine victims and for the general public to misunderstand the severity of the issue. And I’m not the only one. Dr Catherine O’Sullivan, a lecturer in criminal law and criminology at University College Cork, has previously spoken out about the issue of defining a “public place” when it comes to the internet. In reference to Section 45 of the Sexual Offences Act 2017, she said: “There is a definition of public place given in the section, but because when we think of a public place, we think of a physical public place as opposed to a virtual one, I don’t know would this section apply.” Furthermore, the definition of “grossly offensive” communication under Coco’s Law could be manipulated by a judge or jury, according to Dr O’Sullivan.

“If Gardaí cannot respond effectively to physically reported crimes, how can they be trusted in the virtual sphere?”

Surely this should set alarm bells ringing. We do live in a horrifically misogynistic society, whether we want to admit it or not. Lest we forget, in 2021 it was brought to light that over 3,000 domestic abuse calls were marked as “cancelled” and ignored by Gardaí. Even in the cases where they were allegedly marked as cancelled by accident when Gardaí called to domestic violence victims’ homes, they failed to follow procedures for dealing with such cases. If Gardaí cannot respond effectively to physically reported crimes, how can they be trusted in the virtual sphere?

We’ve seen how the Gardaí have acted in response to a national cybercrime incident before. In November 2020, Garda Commissioner, Drew Harris, couldn’t admit the extent of the infamous Discord leak. Despite activists’ claims that over 40,000 images had been leaked and that child pornography had been found amongst the files, Harris asserted to national media that Gardaí were not investigating any crimes in relation to the leak. He also claimed that no formal complaints had been made, which contradicted the stories of several victims. 

Perhaps it is the backlash around this incident that has motivated Minister McEntee to throw her support behind the Online Safety and Media Regulation Bill. Proposed by Minister for Culture, Catherine Martin, the Bill will establish a Media Commission to replace the Broadcasting Authority of Ireland and provide for the appointment of an Online Safety Commissioner who will oversee the establishment of a regulatory framework for online safety. According to McEntee, this commissioner will “devise online safety codes requiring certain designated online services to operate appropriate systems and processes to minimise the availability of some of the most serious forms of harmful online content.”

“You could argue that the categorisation of IBSA into a harmful communications bill instead of legislation that deals primarily with sexual violence minimises victims’ experiences.”

But will this Online Safety Commissioner truly be able to monitor illicit activities in a system that is barely equipped to treat victims with respect? Even McEntee conceded that “the training for lawyers, gardaí, and judges may be outdated and may not have taken account of how the internet can facilitate sexual violence and digital abuse.” After all, you could argue that the categorisation of IBSA into a harmful communications bill instead of legislation that deals primarily with sexual violence minimises victims’ experiences.

At the end of the day, we need to properly enforce punishments around this kind of behaviour, to remove the power trip that individuals may get from sexually harassing people online. We can’t have laws that “appear” to be enough to tackle what is a traumatic thing that so many of us face on a daily basis. A promised commission, a future committee. All these policies are coming far too late.

Eva O'Beirne

Eva O'Beirne is the Deputy Life Editor of Trinity News and a Junior Sophister History student.