Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

Deputy Howlin's Bill addressed updating section 10 of the Non-Fatal Offences Against the Person Act. We supported that Bill. Section 10 is out of date and needs to be updated because it does not take account of the very significant changes which have happened. In relation to offences, Deputy Howlin's Bill and mine had their origins in the LRC paper published in early 2016. In drafting the legislation on foot of the proposals of the commission, I was conscious of the fact that this is a specific proposal to establish an office and provide it with a remit. While I am open-minded about it, I am not sure this Bill is a suitable place to update section 10, notwithstanding my support for the principle of updating the law on criminal offences and on creating new offences. However, doing so in this Bill might complicate the work of establishing an office, providing it with a remit, and creating codes of practice and national minimum digital safety standards. While I am open-minded, my initial view is that introducing criminal offences in the Bill would enter into the area of creating criminal justice legislation. As such, our work could become complicated.

The argument is also relevant to the view I take on the definition of "harmful communication". I spoke on last occasion we met about what that might involve. I outlined that in general it would include distribution or publication of an intimate image of another person taken without consent, or threatening to do so; taking or distribution or publication of an intimate image of another without consent; distribution or publication of intimate material where it seriously interferes with privacy or causes alarm, distress or harm to the other person; the distribution or publication of a threatening, false, indecent or obscene message to or about another person for the purpose of causing alarm, distress or harm to the other person, or where it is done persistently; and persistently communicating with a person in circumstances in which it seriously interferes with the other person's privacy or which cause alarm, distress or harm and any other inchoate behaviours related to the same.

I am working on the drafting with regard to how it would be structured. We should be looking at behaviours. I take on board the point made about consistency with the e-commerce directive. When we ask the commissioner to take down material, we should outline to him or her, and the providers, the behaviours. We should not ask them to adjudicate at the point of takedown on whether something is illegal because there are behaviours that are close to the line. They might have to be removed quickly and for the person involved to get redress. We should look at behaviours rather than seek to state that certain matters are illegal and that the illegal content should be removed. They are required to do that anyway under the e-commerce directive. We should target behaviours. I agree with the point made about an independent external agency. It is important and it is the principle on which we are all largely agreed. I made the point at the previous committee meeting that the organisation is constantly in communication with the providers and platforms but it also receives complaints when they are unhappy with how the providers and platforms are addressing matters. They will be the first to know of the changes in abuse and harassment and all these harmful communications. They will be in a strong position to advise Government on any future criminal justice or policy approaches for example in the Department of Education and Skills. All of that kind of stuff changes. The curriculum might change with the NCCA. It would be in a strong position to do that.