James Lawless (Kildare North, Fianna Fail) | Oireachtas source

I thank the Chair and I thank the witnesses for their interesting presentations today. This is one of three pieces of legislation to be dealt with in this Oireachtas term. I congratulate Deputy Ó Laoghaire on proposing, drafting and bringing it forward. Deputy Howlin has a Bill on harmful offences and I have my Bill on social media regulation, on which some of the witnesses have been in attendance already and some are due to come before us in the near future. There has been a focus on the online space in this Oireachtas which is welcome. It is fast-moving and has been said already, some of the hearings that we had during the summer are almost obsolete now because of the events that have happened and moved on so quickly where steps have been taken both voluntarily and otherwise by the main stakeholders which is good to see.

It is a fast-moving space and one feature that those three pieces of legislation have in common is that they all relate to attempts at regulation. We probably all agree - although the witnesses may not - that self-regulation is not desirable or ideal. While it is welcome that attempts have been made at different times, it is always stronger if an independent third party body can try to impose that regulation.

On the specifics of the Bill, it looks good, where I have read through it a number of times, as well as having followed the Second Stage debate. Some of the feedback from today and previously goes to the heart of definitions and the devil is in the detail. The trick with drafting is always to get it precise enough that it can be enforced but broad enough, as Mr. Meade has said, to be technology-agnostic or platform-agnostic, in order that it can be long-lived and robust enough that, in five or ten years time, it can still be applicable.

There has been a lot of talk about the definition of harmful communications. It is probably one of the main definitions that Deputy Ó Laoghaire has indicated he may want to draft or fine tune as we move towards the next Stages.

One interesting matter that also got a mention in the submissions to the Law Reform Commission's reports and in previous studies in this area - the commission's principal report on this issue was in early 2016, I believe, to which I made a submission - was section 10 of the Non-Fatal Offences Against the Person Act 1997. This is what we call the classic harassment, which is what we might call the pre-Internet harassment. This would be the old stalking offence of knocking on someone's door or sending them postcards or harassing in more traditional ways.

There is a school of thought legally that section 10 could apply to the Internet as well. The stumbling block to date has been that the offence or activity must be repeated to bring it under the definition of section 10. Making a phone call or knocking on somebody's front door in a one-off action may not qualify in the traditional world. Doing it ten times or 100 times would qualify. There is a school of thought that says the nature of the Internet is something that is shared, so anything could be posted once, but it could be shared 100 if not 1,000 or 100,000 times. That might bring it under the definition of section 10, which would mean the action was repeated which might be sufficient to bring a prosecution as it stands.

My first question is whether any of the witnesses has a view of this as to the existing legislation like section 10 of Non-Fatal Offences Against the Person Act or other legislation that may be out there, and are these sufficient or adequate? Has the DPP or any other agency brought charges of this nature to date? Have these types of issues come before the courts or received a sanction and, if so, under what legislation? I would be interested to hear the witnesses' expertise. If these issues have not arisen then what governance is in place? Is it the case that there is a vacuum of governance? If the existing legislation does not apply or has not led to any charges, what exactly is controlling the Internet space at the moment? If the answer is nothing then that is very worrying but is all the more reason we need to accelerate this Bill and others like it.

Moving on and staying with the Bill, it is very positive, strong and a very good idea. One thing that it does not appear to do is to create new offences. This may be deliberate.

Deputy Howlin's Bill creates some offences. Perhaps the legislation can be dovetailed so that the offences in other legislation would come under it. In terms of sanctions, there has to be a carrot and a stick. While there is provision in the Bill to seek an injunction in the Circuit Court, which is useful, the Data Protection Commissioner has powers to bring prosecutions in court as does the Companies Registration Office. Perhaps that is something to be considered in Committee Stage amendments, if we get to that point. There are many examples of statutory agencies which can bring a non-Garda prosecution. Different Departments have similar powers. I might come up with some amendments in that regard myself, but I could also work with Deputy Ó Laoghaire. It might be worth adding to it. On the carrot and stick approach, the concept is that the digital safety commissioner role would not only involve enforcement but would also provide an independent and objective agency in debates like the one on the digital age of consent which raged a couple of months ago and which I do propose to reopen today. It got quite controversial at times. An external agency unconnected to any of the platforms or to any political party would have the status to make recommendations on issues like that. It would receive a good hearing and get good traction across the board. There is a great opportunity, as envisaged in the Bill, for the commissioner to perform that advocacy and expert role, which would be useful.

To recap, I ask about legislation. There is a question mark over section 10 and whether it could be applied at the moment. Are there existing legislative provisions which apply? If not, are we in a total vacuum? What is the current legislative framework around these kinds of offences, if they even exist at the moment, and whether they can be prosecuted? What has been the experience to date?