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The Irish Courts recently witnessed a new first when a man was convicted for causing criminal damage to a social media account. This unprecedented sentence was handed down by Mr Justice Sheehan. The accused pleaded guilty to the charge, meaning that it was not necessary for the prosecution to prove the elements of the offence. Even so, this was an interesting case which raises a number of novel issues for Irish law.

What happened?

The incident in question occurred when the accused and the victim were in a relationship. The accused was said to have stolen the victim’s mobile phone following an argument and to have posted an explicit status on her Facebook account. It was noted in court that the status had been quickly spotted and taken down. Despite this, and despite the accused’s guilty plea, the judge described the action as a “reprehensible offence” causing damage to the victim’s good name.

This case followed separate criminal proceedings involving the victim and the accused, as a result of which the identities of both parties were concealed.

The law

Although hijacking someone’s online profile isn’t the first thing that springs to mind regarding “criminal damage”, the law in that area covers more than property in the regular sense. The Criminal Damage Act, 1991 – under which the accused was prosecuted – covers the theft of and damage to data. It also specifically deals with unauthorised access to data.

It is worth remembering that this Act was drafted in a time when Windows 95 was still 4 years away and CDs had barely made their way into the mainstream. As such, its application to a social networking profile is quite innovative.

Due to the accused’s guilty plea, the matter did not progress to trial and was confined to the sentencing hearing. Consequently, the judge did not have to grapple with the details of proving criminal damage in the context of a Facebook profile. The law is lacking clarity and, unfortunately, this case was unable to provide any substantive clarification

What was the sentence?

Given the unique nature of this case, the judge did not have any guide in deciding the man’s sentence. The law provides for a sentence of up to €12,700 and/or 10 years imprisonment. As the loss to the victim was not really quantifiable in monetary terms, the prosecution suggested that it might be viewed as a harassment offence as the harm caused was to the victim’s reputation. The judge handed down a fine of €2,000, which may have been based on the fact that the status was quickly removed and the defendant had pleaded guilty at an early stage.

What does this mean for users?

Users of social media accounts may be somewhat surprised by this decision. The ruling appears to be one of the first of its kind across the US and Europe. Certainly in Ireland, it is exceptional. Because of the accused’s guilty plea the case did not provide real insight into how a judge and jury would tackle this new application of the offence of criminal damage. It remains to be seen wheDther this was a once-off prosecution or if more cases are likely to follow.

For more information, contact a member of our Intellectual Property team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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