AS reported in this papers yesterday, an allegation of child sex abuse by an Irishman has been posted on the Internet. The allegation concerns a named individual who is living in Northern Ireland and includes sufficient detail to identify the alleged abuser. The use of the Internet to make such claims raises important issues of legal and social policy.
The law of defamation is the response of the Oireachtas and the courts to the conflict between an individual's right to his or her good name and the right of others to freely express their opinions. The parameters of the law of defamation have been a cause of debate lord many years.
If an allegation of child sex abuse is made against a person and it is unfounded then it is defamatory. A false allegation of child sexual abuse is potentially ruinous for the defamed person. While it is questionable whether the effects of a false allegation can ever be completely countered, the award of damages against a false accuser may compensate for the injured reputation.
The database at the centre of the current controversy initially permitted anonymous postings. This meant that a person making a worldwide allegation did not at first have to reveal his or her identify The potential for gross misuse of this remarkably naive process was obvious and the procedure was quickly changed.
If a defamation is published on the Internet, the false accuser, if identifiable, may be is in a distant jurisdiction. Most information which is posted on the Internet is available to browsers worldwide.
The question, therefore, arises whether the defamed person must sue in the jurisdiction where the information is read, where it was loaded on the Internet, or in any country through which the information electronically travelled.
Equally, it might be the case that the commercial Internet service-providers could be liable, either wholly or in part.
These issues remain unresolved. It would seem likely that the use of the Internet to publish a defamatory allegation would entitle the defamed person to sue in any country where the allegation can be shown to have passed through a computer. It is, however, likely to be a very expensive task to mount such a defence of one's reputation.
in the absence of any Irish judicial decisions on the matter. the best view appears to be that any person, company or institution which is involved in carrying the defamatory allegation would be potentially liable. They would, in legal terms, publish the defamation.
It may be the case, however, that a future court would accept that the commercial Internet service providers and the intermediary computers of the Internet were innocent disseminators of the defamation.
A further issue of considerable importance is the question of publishing the identities of child sex abusers in the Republic and in Northern Ireland. Currently, it is the practice in both jurisdictions to keep the identities of convicted offenders secret to protect the anonymity of their victims.
This rule can, however, contribute to controversy. A recent example in Northern Ireland was that of the settlement of a convicted child sex abuser in the Shankill area of Belfast and where the community was unaware of his offence. However, when the nature of the conviction became widely known, adverse local reaction required the man to move for his safety.
THIS position in Ireland and in Northern Ireland differs from that in a number of US jurisdictions, where some states are obliged by la#, to publish the identities of certain categories of offenders, including those convicted of sex offences against children. There currently are proposals for analogous changes in Britain, to be managed by a new Criminal Records Agency.
Some US states plan to go further and to require the physical identification of convicted offenders by means such as wearing distinctive armbands. In all such cases, US legislators have clearly made the policy decision that the wider interests of children must be protected even at the potential cost of identifying the victim.
It might also be observed that the likelihood of identifying a victim by releasing the identity of an offender is considerably lower in a large country such as the US than it would be in Ireland. This balance between preserving the anonymity of the victim and alerting communities to the nature of offenders' convictions is a matter which must be addressed in Ireland in future years.
In any coming debate, it might also be noted that some professionals in punishment and rehabilitation argue that a community's right to know of a convicted sex offender in its midst must be counter-balanced by that community's obligation to display reasonable tolerance towards and to permit rehabilitation of the offender. That aspiration, however, may well be a view which is unpalatable to many in the current social climate in Ireland.
