Mr. Fergal Crehan:

Section 13 of the Post Office (Amendment) Act 1951 does not date back to 1951. It is a much more recent creation. The original Act was most recently amended in 2007. Section 13, as most recently amended, deals with messages sent by telephone, including text messages, that are "grossly offensive ... indecent, obscene or menacing". It also deals with messages persistently sent "for the purpose of causing annoyance, inconvenience, or needless anxiety to another person". This applies to persistent nuisance telephone calls. It also applies to messages "that the sender knows to be false" and to prank calls. If one examines the Oireachtas record from the time this most recent amendment was made, one will find that the purpose of this section is to deal with telephone messages which are person-to-person communications. Any harassment that happens via person-to-person communication is by its nature far more intimate than something one might stumble across on the Internet following a Google search. There was a very good reason Internet communications were not included in that section.

It has been suggested that the section is ripe to be expanded away from person-to-person telecommunications and into Internet communications in general. We have concerns about that. Our first concern is that the concept of intimacy of harassment would be lost. We would be dealing with something that is spoken to the world at large but to nobody in particular. Deputy O'Donovan made a telling point last week when he said it would be a case of moving the focus from talking to a person to talking about a person. Harassment can take place when a person is spoken to aggressively. Freedom of expression issues come into play, however, when it comes to talking about a person. One of the problems we see with expanding this offence is that it would potentially criminalise every web page, every online newspaper story and every RTE broadcast placed on rte.ie that is intended to cause annoyance. It is in the nature of certain kinds of political art or political speech-making that annoyance or provocation is intended. That would be criminalised immediately. Such a measure would create a very subjective crime. We would have to decide what is grossly offensive, indecent, obscene or menacing. If one examines a forum such as politics.ie, in which partisan politics are involved, one finds that tempers frequently run high, especially coming up to elections. One man's vigorous debate is another man's offensive, grossly offensive or indecent message.

It is a very subjective question. Do we allow judges decide, given different judges may have different views on what is grossly offensive, or do we attempt to set some sort of a subjective standard based on the offence caused to the person who was offended? If we do that, we effectively allow the most easily offended people to set the standard for freedom of expression.

It would also break the principle of parity between online and offline speech in that it would make it a crime to say something online which it was not a crime to say offline. There are certain admittedly unsavoury things that are shouted, for example, on the terraces of a football or hurling match but, if the same is said online, it suddenly becomes a crime. There are difficulties of parity in this regard.

A key practical point is that it would add to the already huge workload of the Garda computer crime unit. These would be very work-intensive offences to investigate and prosecute. They would be dumping a huge amount of very work-intensive offences onto the desk of the Garda computer crime unit which, as we will see, is already significantly overworked. There is a comparable law in England and Wales, at section 127 of the Communications Act 2003, which is not limited to telephone messages in the same way this is. It has been misused and the Crown Prosecution Service has recently issued guidelines suggesting these kinds of grossly offensive prosecutions not be pursued in the public interest. It was felt it would lead to a debacle and that the focus should be moved back to person-to-person communications of a threatening nature. In any case, we feel expanding section 13 would likely be in breach of Article 10 of the European Convention on Human Rights. Freedom of expression is guaranteed by our Constitution. I also include a quote concerning the Sunday Times v. UK case, which states that freedom of expression applies to offensive, shocking and disturbing speech as well as to uncontroversial speech. Indeed, there is very little point in having a right of freedom of expression if it only applies when one is saying things that are universally popular.

With regard to suggestions, we are not just here to say "Do not do anything". We understand there are issues with the Internet and that certain actions have to be taken. With regard to what we suggest, first, we suggest adequate funding for the Data Protection Commissioner. The graph in the slide before committee members shows funding of the Data Protection Commissioner over recent years, and members will see that, as of 2011, funding is almost back down to 2004 levels. Over this time, a huge number of large data holders have moved into Ireland. Because the likes of Google, Facebook and LinkedIn are based in Ireland, the Data Protection Commissioner has one of the biggest workloads of any regulator in Europe, bigger than that of countries many times the size of Ireland, because we uniquely have so many of these companies based here. However, the Data Protection Commissioner is not adequately funded. It has the job of regulating all of the data, for example, that Facebook holds for all of Europe yet it has a staff of 20, so few that they fit in a small office upstairs from a Centra in Portarlington.

We would also suggest more funding for the computer crime investigation unit. The slide before members is from the Irish Examinerlast year and points out that it emerged in recent court proceedings there is a three-year waiting list to prosecute some child pornography offences because the resources simply are not available to the unit. To create a new offence of offensive communications via the Internet would be to dump on this already clearly overworked unit a vast amount of low level, District Court level offences that are nonetheless hugely work-intensive. We feel that until we have that unit adequately resourced to do the job it already has, it would not necessarily be a good idea to dump yet more work-intensive offences onto its desk.

We are happy to have been invited to the committee today and we are happy to answer any questions the members or the Chairman might have.