Dr. T.J. McIntyre:

One sees this if one looks at the issue of harassment. Deputy O'Callaghan made the point in relation to harassment that we have concern about the persistence requirement and that one-off acts of bullying cannot be criminalised. The persistence requirement is what takes individual statements, which might well be toxic but do not rise to the level of criminality, beyond that and to the stage where we say, as a society, that criminal intervention is needed. If we start criminalising one-off statements, it becomes much more difficult to say precisely what type of criminal statement is involved and precisely what type of single speech act of bullying rises to the gravity that justifies the remarkable intervention of the criminal justice system. That is compounded by the fact that we are trying to avoid criminalising children, in particular. In most areas of the law we now seek to avoid dragging children into the criminal justice system. In many ways, it is unhelpful to expand liability further in a way that would do that.

I will make one further point in response to the Deputy's question about the persistence requirement and how we define the threshold that is involved. To an extent, there might be a level of confusion regarding the circumstances in which we are doing it. On the one hand, we might be talking about criminalising an individual for what he or she posts. In other circumstances, we might not focus on the individual and we might ask if we should take down this particular content. It is unhelpful to conflate those two instances because criminalising somebody involves assessing that person's intention. In the case of these harassment and bullying offences, we are usually looking at a pattern of behaviour. Making decisions to take down individual elements of content involves assessing the individual element, usually in isolation. Content moderators for sites like Facebook or Twitter focus on the individual content and do not usually have a pattern of conduct in front of them. It is unhelpful to say that we should have the same standards applying in both contexts because it is very hard to read across.