Professor Donncha O'Connell:

I thank the Chairman. It is a great privilege for the Law Reform Commission to speak to the committee and we are very grateful for the invitation to do so. I should acknowledge the obvious at the beginning, namely, that we are all men. That is not to convey any sense that the report was prepared only by men. In fact, the lead commissioner before I took over as co-ordinating commissioner was the full-time commissioner, Ms Finola Flanagan, and the lead researcher on the project was Ms Fiona Regan. Both have since left the commission to work elsewhere. I do not want to give the wrong impression; this is the manifestation we have today.

The report on harmful communications and digital safety was published in September 2016. We also published a draft Bill which we intend to be a helpful guide to those who are directly concerned with the legislative process. It is by no means the last word or definitive guide. Rather, it is merely intended to be helpful. With all of its reports the commission publishes draft legislation as an aid to the Legislature.

Our consultative process for this report, as the president has outlined, was part of the fourth programme of law reform whose end is now imminent. We are, in fact, embarking on a consultative process for the fifth programme of law reform. One of the innovations in regard to the adoption of the fourth problem was that the Government referred the draft for the programme to the justice committee at the time in order to receive its views. On behalf of the commission, I would like to acknowledge that was extremely helpful in finalising the fourth programme of law reform because it indicated to us the political priority which attached to certain projects over and above others. We had 11 projects, none of which were in any sense more important than another, but it was very helpful to us to see what the political system valued or saw as urgent. I hope in the conclusion of the fifth programme we will have a similar consultation with the Oireachtas. It was immensely beneficial and added significantly to the legitimacy of the fourth programme.

We engaged in a very extensive consultation process in respect of this project in the fourth programme. Many submissions to the fourth programme mentioned cyberbullying and online harassment of young people and adults. That was one of the reasons the report was settled upon. We published an issues paper in November 2014, which is a consultative pre-report paper. This is the normal practice for the commission. We received a lot of feedback on that from various stakeholders. We had a seminar in April 2015 which was attended by over 100 participants, including some of the social media companies mentioned in the previous session.

With reference to Senator Noone's comment in the earlier session, we held consultative workshops with young people. Over 70 people were facilitated by the Department of Children and Youth Affairs. The full report on the consultation is contained in appendix B to the report. The president attended the consultation and can give direct evidence as to the benefits of engaging with young people aged from 13 to 17 years. The view at the time was that was hugely beneficial and added enormously to the insight that we, as older people, would not have had.

As with all Law Reform Commission reports, the report is heavily influenced by comparative analysis. We always look to other jurisdictions. In the previous session Dr. Shannon referenced Australia quite a number of times. We were quite strongly influenced by developments in criminal law in jurisdictions in Great Britain. We were also heavily influenced regarding the digital safety commissioner by developments in Australia.

We are very happy that our work has been included in the deliberations of the committee. We are also aware that the Departments of Justice and Equality and Communications, Climate Action and Environment are reviewing the report with a view to bringing forward proposals. We are aware of Private Members' initiatives in this area over the past year.

Regarding the core subject matter of the report, it would be wrong not to acknowledge that there are positive and negative aspects to the digital revolution. We have all become accustomed to smart phones as a way of staying in touch with family and friends anywhere in the world. We plan and book holidays using these devices. We can participate in civic society, regardless of national boundaries, and in public discourse. As people who are intimately engaged in the processes of public discourse, committee members would be more aware of this than most. We have to see this as a major boost to freedom of expression. It magnifies voices and multiplies information.

There are, of course, negative aspects. As we all know, there can be a tendency for some online and digital users to engage in communications which cause significant harm to others by, for example, posting intimate images without consent or gross breaches of the right to privacy. In this regard, we conceive of privacy as embodying concepts like personal safety, the right to a good reputation and the right to human dignity. We are not in any sense denying that these are real hazards, with the indisputable benefits to freedom of expression which come from the digital revolution.

We identified different types of harmful communications, which formed the core focus of our work. Victim shaming, or what is more loosely referred to as revenge porn, that is, posting intimate material without consent which is intended to cause harm and violate privacy, was one form of harmful communication we identified. We also looked at posting intimidating and threatening online messages directed at private persons and public figures, voyeurism, or what is loosely referred to as upskirting and downblousing, and intimate images taken without consent and posted online. We focused on online and digital harassment and stalking, mirroring, to some extent, pre-digital versions of these harmful behaviours dealt with in legislation from 1997.

That is why we propose that the pre-digital laws be consolidated into a single piece of legislation covering digital and non-digital harmful communications. I will explain in more detail what we did in respect of those offences later. Other, arguably less harmful but still hurtful types of bullying behaviour, such as sending unpleasant messages, unfriending, freezing out from groups, etc. were also considered and these would bear largely upon the civil, not necessarily judicial, remedies we considered.

The guiding principles we used in addressing harmful communications were to focus on the wider context in which these issues occurred. We were very mindful of the importance of education, as was stressed by Dr. Shannon in the earlier session. We were very influenced by that. We make no exaggerated claims for the value of law in this area because, clearly, there are significant issues which are, in a sense, beyond the reach of law and require perhaps more preventative approaches.

We were also very mindful of the need for balance and proportionality in the approach we take. That comes from a profound respect for freedom of expression, but also for the other rights which can be violated by the abuse of freedom of expression which I set out earlier. Thus, we have stressed education, emphasising user empowerment and safe and positive digital citizenship as being of primary importance.

We have considered and proposed a system of statutory oversight in the form of a digital safety commissioner, with a range of remedies open to that office and a strong focus on the need for a statutory code of practice.

When it comes to criminal law, we have made proposals for certain offences but only with regard to the most serious and harmful communications. It is critically important to stress that we are not starting from the perspective that criminal law is the major weapon against or solution to the harm addressed in this report. It is decidedly not the first port of call. It is in fact the third port of call having already looked at the other mechanisms available to deal with these issues.

On the topic of education and oversight, we propose the establishment of an office of digital safety commissioner, like those already in existence in Australia and New Zealand. If legislated for, this office will promote digital safety and will also have an important educational role in promoting positive digital citizenship among children and young people. We state very explicitly in the report that the digital safety commissioner should work with the Office of the Ombudsman for Children and liaise with all education partners to develop guidance material for young people in schools, including guidance on encouraging mediation and restorative processes, especially for issues for which the criminal law is not suitable. I will return to this point shortly.

On the issue of a code of practice on take-down procedure, what we have proposed in the draft Bill and in our report is that the digital safety commissioner should publish a statutory code of practice on digital safety, setting out nationally agreed standards on the details of an efficient take-down procedure. In the previous session Dr. Shannon emphasised timelines and time limits for this. We have not presumed to prescribe what the absolute limit on timelines might be, but this would certainly form part of the task of the digital safety commissioner in developing a code of practice. We need to bear in mind that this code of practice would not be some kind of voluntary code but that it would have a statutory underpinning. The type of procedure that we envisage for a take-down is that individuals who feel aggrieved by a harmful communication would initially apply directly to social media sites themselves. This would encourage social media hosts to have robust mechanisms for taking down harmful communications to avoid engagement with the more formal process. If the site did not comply with such a request, and in so doing did not comply with the code of practice, the individual could appeal to the digital safety commissioner who could then direct that site to comply. The digital safety commissioner would be empowered statutorily to enforce the code. If the site did not comply with such a direction from the digital safety commissioner, the latter could then apply to the Circuit Court for a court order.

This proposal, then, is not without teeth. It is an example of nudge theory, something that has been receiving quite a bit of publicity since Mr. Richard H. Thaler was awarded the Nobel Prize last week. It is designed to encourage better behaviour on the part of those who use social media but also on the part of those responsible for providing social media services. It is, in a sense, the suggestion of a regulatory framework just like the many regulatory frameworks already in existence for these kinds of large companies, which are well accustomed to operating in a regulated environment and are engaged with sophisticated understandings of corporate social responsibility.

Returning to criminal law, and this again is something that I deliberately de-emphasised in the opening statement, the serious harmful communications that we feel should be subject to criminal sanction are decidedly serious and harmful communications. We talk about two new criminal offences here, one being intentional victim shaming or what is colloquially referred to as "revenge porn", which I can explain in greater detail if it would be any assistance, and two, the voyeuristic offence of what is colloquially referred to as "upskirting" and "down-blousing". When it comes to existing harassment offences, we have made it explicit that these cover online activity such as posting fake social media profiles. We have proposed a separate offence of stalking, which we have defined as an aggravated form of harassment. We also propose to reform the existing offence of sending threatening and intimidating messages so as to capture the most serious types of online intimidation. These are essentially amendments to post office legislation that is now quite dated. The thinking behind our proposals on criminal offences is to deter this kind of behaviour but also to name these explicitly as offences. This is on the basis of evidence from other jurisdictions that naming these offences can increase the reporting. It is also important to the victims of these offences that the offences be named for what they are. We are essentially proposing the re-enactment of harassment legislation from 1997 with additional elements and two new additional offences. It is more complicated than that, of course, so Commissioner Byrne, our other colleagues from the Law Reform Commission and I are very happy to answer any questions that the committee may have.