A Cork campaigner has claimed before the High Court that an order by a District Court judge not to post anything on social media which is abusive or offensive to any person breaches her right to freedom of expression.
The condition was imposed on Fiona O'Leary by Judge James McNulty at a sitting of Bandon District Court last January. Ms O’Leary campaigns against pseudoscience and treatments offered to people with cancer and those with autism.
Judge McNulty sentenced the mother of five from Dunmanway, Co Cork, to 60 days imprisonment, which he suspended for two years, after she pleaded guilty to an offence contrary to section 13 of the 1994 Criminal Justice Act (Public Order) Act.
She was charged with trespassing on a property located at the Priory Maulatanvally, Reenscreena, Rosscarbery, Cork in such a manner as to cause or likely to cause fear in another person.
The prosecution's case was based on a statement from Fr Giacomo Ballini, and the court was informed that Ms O'Leary had uploaded video footage taken on the premises on the day to social media.
After considering the plea, Judge McNulty told Ms O'Leary that she was entitled to her opinions, but there were boundaries which are required for civil public discourse and debate.
Rather than fine or sentence Ms O'Leary to community service, the judge imposed a 60-day sentence, which he suspended for a period of two years.
The judge also imposed certain conditions including that she keeps the peace, and that for the duration of the two-year period she does not engage in any behaviour in any public place, or public forum, including social media, which is abusive or offensive to any person.
Judicial review
Arising out of that condition, Ms O'Leary, represented by Bernard Condon SC, instructed by Catherine Ghent, has brought High Court judicial review proceedings against the Director of Public Prosecutions (DPP). She wants the High Court to quash the order made when she was convicted and sentenced at the District Court.
Ms O'Leary also seeks various declarations, including that the conditions forming part of the order made by Judge McNulty were made outside of the District Court's powers, are contrary to fair procedures and in breach of her constitutional right to freedom of expression.
She claims the condition should be set aside on the basis it is vague and uncertain.
In a sworn statement, Ms O'Leary said she has been campaigner and activist against pseudoscience, such as the use of a dangerous product called MMS being used on persons who have cancer and have been diagnosed with Autism Spectrum condition.
However, she said her activism has brought her a lot of abuse and threats, particularly online. She says she needs to use social media as part of her activism in order to highlight what she says is misinformation.
She said she does not intend to be offensive or abusive on-line, but if she does express her opinions, which she says she is entitled to do, she cannot control or decide what others find to be offensive or abusive.
She believes that the punishment she received from the District Court imposes restrictions on her rights, and "damages the important work" that she does.
The case came before Mr Justice Charles Meenan during Monday's sitting of the High Court. The judge directed that her application for permission to bring her challenge be made in the presence of lawyers for the DPP.
The matter will return before the High Court next month.
