Ms Caroline Counihan:

Thank you very much, Chair. The RCNI is grateful to have this opportunity to share its views on online harassment, harmful communications and related offences with the committee. Our clients of all ages are now reporting to us more and more forms of online sexual harassment and harmful communications of an intimate nature. Effective regulation, via the criminal justice system and otherwise, generally has not kept pace with developments in online technologies and the almost universal use of Internet-accessible devices. Many forms of online sexual harassment and harmful communications are covered by the Criminal Law (Sexual Offences) Act 2017 and related legislation on child pornography but there are wide gaps in the criminal law as far as adult victims are concerned. To us, these forms of sexual harassment are a form of sexual violence, and should be regarded as seriously as contact sexual offences. Their impacts on their victims are just as grave and potentially far reaching. Accordingly, we think it is appropriate to describe this behaviour as image-based sexual abuse. It is difficult to compile an exhaustive list of all the forms which this might take. They include sextortion, deep-faking, flashing, what is commonly but inaccurately referred to as revenge porn, and perhaps most disturbingly, the recording and distribution of videos of acts of sexual assault and rape. They need to be addressed urgently to deter and where necessary, punish, perpetrators of grave harm through online technologies.

There have been some very encouraging positive developments in recent years, not least the Bill introduced by Deputy Howlin, which is based mainly on the relevant provisions in the draft Bill in the Law Reform Commission's Report on Harmful Communications and Digital Safety. The RCNI broadly welcomes this Bill and would like to see it progress as quickly as possible. In particular, we welcome the inclusion of section 4, concerning the distribution of intimate images without consent, which will address that form of image-based sexual abuse consisting of the one-off sending of intimate images online to third parties. The current law on harassment covers only persistent communications made directly to the victim.

To give another positive example, the Law Reform Commission also put forward the idea of a digital safety commissioner’s office, which would be responsible for regulating online service providers’ procedures and practices, especially in respect of take-down of harmful material. This has also found expression in proposed legislation, such as the Digital Safety Commissioner Bill 2017, a Private Members' Bill put forward by Deputy Ó Laoghaire.

We refer briefly to some of the principal recommendations RCNI makes in its full submission. I hope it is in order to state that the recommendations refer to the Harassment, Harmful Communications and Related Offences Bill 2017, which is a Private Members' Bill. It is recommended to consider separating the current proposed section 4 of the Bill into three distinct offences: generation of intimate images without consent, alteration of images to make them appear to be intimate images without consent, and their storage, distribution, publication, sale, etc, also without consent; to ensure that the wording of any offence or definition used in any offence covers originally innocent images of the victim that have been altered to appear to include intimate images of third parties, in order that it cannot be argued by the defence that the genitalia, anal region, etc., of the victim are not in fact depicted in the intimate image in question; to include, as has been done in Scotland, separate voyeurism related offences, to cover viewing victims without consent in intimate settings, installing equipment to record intimate images of them, recording such images, and storing, distributing, publishing or selling them, in each case without consent; to create a new offence of producing and distributing audiovisual images of acts of sexual violence without consent and attach significant penalties to it, an activity that should be an offence whether it takes place online or offline; to consider criminalising the intentional or reckless impersonation of others, real or fictional, in online interactions, which can be extremely harmful in a sexual context; to include a review clause and give responsibility for carrying out the review to the digital safety commissioner or a similar official, pending the creation of a new digital safety commissioner’s office or a similar body, responsibility for which should be given to the Department of Communications, Climate Action and Environment; and to include provision to hear cases related to online harassment, harmful communications and related offences, in camera, ideally irrespective of whether their content amounts to image based sexual abuse.

I thank members for their patience. RCNI thanks the committee most sincerely for taking the time, through the submission process and hearings, to consider these most important issues for all survivors of this form of sexual violence and all those at risk of it.