Oireachtas Joint and Select Committees

Tuesday, 1 December 2020

Select Committee on Justice and Equality

Harassment, Harmful Communications and Related Offences Bill 2017: Committee Stage

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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This is short but complex legislation. There are quite a few amendments and many are intertwined. It is, therefore, possible, for example, that if one amendment succeeds, another that follows it may no longer be valid because the section it speaks to may be deleted. There are also amendments to the amendments. We have, therefore, quite a bit to get through and will do our best to get through it in two hours. If we do not, we have Thursday afternoon as a fall back. Perhaps, however, we will all work together to try to be as efficient and smooth as possible to give debate to all items as necessary and consider and do justice to them. It is a little complex so we will work together.

As the proposer of the Bill, Deputy Howlin might like to say a few words before we commence.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I will say a few general words about the Bill and the about structure of the committee. First, I am grateful to be here. It has been a long three years since April 2017 and the Private Members' Bill. Not too many get in sight of the finishing line and I hope we can get it there.

As the Chairman rightly said, the Bill builds on the work of the LRC and deals with regulating a public space, that is, cyberspace, which is largely unregulated now. It has many arms and it deals with the issue of online bullying and harassment, and the issue of exchanging intimate images, so-called "revenge porn", among others.

It is not comprehensive and all of us will have received submissions to try to make this Bill as comprehensive as we can. I am conscious that even when this is enacted, there will be issues that require will further consideration. I am aware the original LRC report, for example, wanted to deal with the non-justice area of a regulator. That is being progressed in different legislation now. People have contacted me and I am trying to explain that to them. They should be aware of that.

I am grateful to the Minister for Justice for accepting the framework of the Bill and agreeing to enact it. An extensive redrafting of the Bill is proposed by the Minister, in essence, to achieve the same objectives, by and large, but in a different style. There is now a conventional and evolving style. Even some of the proposed amendments regarding the location of Long Tittle and Short Title have changed in my time in the House. There is, however, a prevailing style now for justice legislation. As long as the elements of the Bill are achieved, the language used is secondary, as far as I am concerned, although I have a general view that we should, as far as practicable, speak and write in plain English and where we can say something directly, we should not, as far as we can avoid, put cross-referencing to legislation where it is not necessary so people can read legislation and know what it means. We will get to the specifics of that when we are dealing with it. I thank the Chairman for supporting this and for meeting others who are lobbying for the Bill. Let us see if we can get it done.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Deputy. On a housekeeping note, Deputy Bríd Smith, who is online, has sent a message stating that she has tabled amendments but does not propose to move them on this Stage. Perhaps, there is some confusion on that; she may come in later with them. As Chairman, I meant amendments tabled as a member. As I am in the Chair or today's session, however, I do not propose to move my amendments because it would be difficult to do so for obvious reasons. The Vice Chairman has also tabled amendments so the same difficulty will apply to us to vacate the Chair and swap with the Vice Chairman for the purpose of the session.

I propose to simply mention and flag my amendments at the relevant times and we may return to them on Report Stage if the Department wishes to make an observation or engage on them again. I will not press them because I do not believe it would be appropriate to do so. Perhaps, the Minister wishes to make some opening remarks as well.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I will add to what the Chairman and Deputy Howlin have outlined. I look forward to a speedy passage of this Bill and the support of all committee members and the Dáil and Seanad. I thank Deputy Howlin for the huge volume of work he has done on this issue and I agree with him that while the stylistic approach might be different, the intention is exactly the same. To be clear, the intention of the original Bill as set out is very much the same and, obviously, where we can develop and where there are potentially other areas that need further discussion and engagement, I am very much committed to doing that at a later stage in other legislation if needs be.

This issue has come to the fore in recent weeks as one that needs to be addressed. That is why, working with Deputy Howlin, I have prioritised it and look forward to, hopefully, passing it as quickly as possible, much quicker than a few months.

SECTION 1

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 1 to 48, inclusive, are related and may be discussed together. There are amendments under the names of Deputies Cairns, Gannon, Pringle, Collins and Connolly. Amendments. Nos. 1 and 2 are from the same proposers and the Minister has an amendment that the section be deleted. The first business is to take amendment No. 1. Does Deputy Pringle wish to move the amendment?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I move amendment No. 1:

In page 3, line 13, after “Communications” to insert “, Image-Based Crime”.

As I understand it, the Minister proposes to delete the section so there is probably not much point having much discussion on those amendments, other than to say they will probably be brought forward on Report Stage as amendments to amendment No. 48. We should have probably amended amendment No. 48 instead of these, but it is important.

The amendments propose adding "Image-Based Crime" to the Title of the Bill, which is vitally important for the sufferers of the crime. We will, therefore, address this again on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Is Deputy Pringle speaking to amendment No. 2 as well?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Minister proposes to delete the section. Does she wish to come in on that?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I will comment on amendments Nos. 1 and 2 initially. I do not believe that such a change is necessary or required because the Title, that is, Harassment, Harmful Communications and Related Offences Bill, encompasses most of what the Bill tries to do. Sometimes, if one gets too prescriptive, one does not widen the base but narrows it. Given the fact that this legislation is specific to image-based content, I understand the reason for this. However, as the Deputy said, there is an amendment to delete this section and insert it later in the Bill. Again, that is a stylistic approach. It is a technical amendment allowing for the relocation of the Short Title to the end of the Bill.

This is the drafting style used by the Office of the Parliamentary Counsel for Bills that are not set out in individual parts. The Short Title and commencement provisions are contained in the amendment, creating a new section 19 retaining the original Short Title.

It is normal practice when drafting criminal legislation to include the commencement provisions. This means the law does not enter into force immediately when signed by the President. A commencement order will need to be signed by the Minister after the relevant criminal justice agencies have been notified of the enactment and given time to establish whatever new procedures are required to implement it. I accept that this may be brought in on Report Stage later. It is, therefore, something I am willing to, perhaps, consider later as part of the amended section.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Minister. Deputy Howlin wishes to come in on that.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Will I speak to the amendment to the amendment?

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Yes, amendment No. 48.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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It is odd to debate an amendment to the amendment before the amendment is put but if that is in order, I will do it now. As I said, I have no stylistic preference as to whether the Long Title and Short Title are put at the front or the back of the Bill, as long as they explain to any reader what the Bill is about.

The amendment I am putting now is important because it has an enormous emotional attachment. I am aware I am asking the Minister to cross a threshold. The main advocate among many, however, and the visible face of this campaign across the country for the past number of years, has been Ms Jackie Fox, who gave a moving and passionate account of her suffering outside the Dáil at the start of this term. Her beautiful daughter, Nicole, was driven to suicide by vicious online bullies and took her own life.

In memory of Nicole, she has asked that as well as having the normal Title of the Bill, we also use a shorthand, which is that this Act, when it is enacted, can also be known as Coco's Law. It is a shorthand used in many jurisdictions in memory of people who have contributed to fundamental legal change.

I know from my years on the other side of the table how resistant the system is to that sort of move. It would, however, mean a huge amount. I cannot describe to members how much it would mean to Nicole's family, particularly to her mother, her extended family and all her supporters, if the Minister could agree to that. I hope we can make that small adjustment and add the amendment I am suggesting that this Bill may also be referred to as Coco's Law.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I understand know how sensitive an issue this is. I sincerely want to extend my sympathies to Nicole's family and to her mum, in particular, who, as the Deputy said, has campaigned for this tirelessly on the basis of what happened to her beautiful daughter.

Unfortunately, having taken advice from the Attorney General on this, and for the many reasons the Deputy has alluded to, there are important considerations in law and legal policy, and notwithstanding the position of the Short Title of the Act, it should seek to reflect the contents of the legislation in a succinct manner. Obviously, what happened to Nicole was specific and is part of what the Bill intends to address. Other areas are covered in this Bill as well, and that creates a challenge whereby there will be legislation that encompasses a number of specific offences and the Title itself is only related to one of those. The legal advice, therefore, is that we would, as the Deputy said, be crossing into a different threshold, which would present significant challenges.

I completely understand this is something that people want to be connected with Nicole and her legacy. I believe that it will be known as Coco's Law, even if it is not in the Title. On the advice I have received I cannot, unfortunately, include that as part of the Title. I genuinely believe, however, the reason for bringing this legislation forward and pushing it will be very much linked to Nicole and her family, and it will be part of their legacy. I am sorry. I would like to give the Deputy a different answer but the position as set out makes it difficult for me not to.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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There is clearly a technical difficulty with that when one must manage all the legislation and the Statute Book, and the read across of those different things. It is completely understandable why they would want that.

Could the Minister commit that in internal documents in the Department and in the presentation and explanation of it in conferences and as we go around talking about the law from now on, rather than it being strictly within the Title of the Bill, there is a way in which the Department could commit to using that phrase in its non-statutory language as part of the development of explaining the Bill over the next period? Perhaps, that is something to reflect on over time.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I do not see why not. As I said, in terms of how this is presented, it is clear for many people where this is coming from, the intention behind it and the personal work that has been done over the past number of years. To reflect that is reasonable whether it is going through the House or in the commentary afterwards and as it is being enacted. Perhaps, therefore, there is a way we could ensure that does happen. I can certainly do that in my own commentary.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Minister and members for all the contributions.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I have a final comment. I appreciate both Deputy Carroll MacNeill's helpful suggestion and the Minister's response. I believe that will happen. I will continue to refer to it as Coco's Law in any event.

I am sure many Ministers have been here and referred to the legislative tradition or legislative advice given by the Attorney General. We are the Legislature and we ultimately determine these issues. I recall having a discussion with somebody who said that would create a precedent. We are here sometimes to create precedents. Every Bill would not lend itself to something like this but I believe this does. We could create a precedent here without doing any harm or injustice to anybody. The learned judges and practitioners in the courts would be able to manage to understand the full import of the Bill, even if it has a shorthand Title.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Deputy and all contributors. The comments were made that it will forevermore be known as Coco's Law in any discussions, on social media, in other debates and other interactions in any event. There is no doubt of that. That amendment to the amendment No. 48 will be taken towards the end. Deputy Howlin may, therefore, wish to indicate if he wants to bring it forward at Report Stage, for example, or revisit it then. He can indicate this at that time. For now, however, we will take amendment 1. I believe Deputy Pringle indicated he is not pressing the amendment at this Stage. Is that correct?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I will bring resubmit the amendments on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Deputy is withdrawing it.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Yes.

Amendment, by leave, withdrawn.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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How stands amendment No. 2? Is the position the same?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I move amendment No. 2:

In page 3, line 13, after “Communications” to insert “, Image-Based Sexual Abuse”

Amendment, by leave, withdrawn.

Section 1 deleted.

SECTION 2

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 3 to 6, inclusive, will be taken together. One of these is mine. I will not speak to it because I am in the Chair. I believe it is covered by the other amendments in any event.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I move amendment No. 3:

In page 3, between lines 15 and 16, to insert the following:

“2. In this Act—

“broadcast” has the meaning assigned to it by the Broadcasting Act 2009;

“distribute” means distribute to the public or a section of the public;

“intimate image”, in relation to a person, means any visual representation (including any accompanying sound or document) made by any means including any photographic, film, video or digital representation— (a) of the person’s genitals, buttocks or anal region and, in the case of a female, her breasts,

(b) of the underwear covering the person’s genitals, buttocks or anal region and, in the case of a female, her breasts,

(c) in which the person is nude, or

(d) in which the person is engaged in sexual activity; “harm” includes psychological harm;

“publish” means publish, other than by way of broadcast, to the public or to a portion of the public.”.

Section 2 is the interpretations section. Amendment No. 3 proposes to delete the section in its entirety and to substitute it with a new section that contains some different definitions. This raises issues with the amendments to the definitions proposed by the Deputies, which we will discuss. I assure them that what they are seeking to achieve has been dealt with by amendment No. 3. I ask them for their support. With reference to Deputy Howlin's comments earlier, what the amendments are proposing is, I believe, being covered in the deletion and insertion of a new section in this Part.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Am I correct that the Minister is effectively locating all the definitional terms in the Bill under one section, which is this new section that is being proposed?

Is that essentially the proposal?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Yes.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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The Minister's proposed amendment mentions:"any photographic, film, video or digital representation". Would that be equivalent to any digital form?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Yes.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Section 2(a), as per the amendment, mentions: "the person’s genitals, buttocks or anal region and, in the case of a female, her breasts". How would that affect trans members of the community? Would they be included in that?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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That is covered under that section.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Passing this amendment would remove the need for amendments Nos. 4, 5 and 6 and I will look to take them back on Report Stage after I see how this amendment impacts on those. We have not looked at that or discussed it yet. I might want to bring them back in.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is fine. Deputy Pringle is saying he is happy to withdraw those amendments and bring them back on Report Stage. I know Deputy Carroll MacNeill had her name on one of those amendments as well. Does she want to speak to them?

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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No. It is contained within it.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That concludes the discussion on amendments Nos. 3 to 6 in that event.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I had my hand up Chairman.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Sorry I did not see the Deputy.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I can show my image if you really want to see me but I had my hand up.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I can hear the Deputy anyway so she can proceed.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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It is all about image. Does amendment No. 3 include the storage of photographic film, video or digital representation?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It should do so. I will get absolute clarity on that for the Deputy but it does.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Should we specify that?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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My understanding is that it does not need to be specified because once one has the image, whether it is being kept or stored or not or whether it is being sent on, the offence has been created. It does not need to be defined in that sense because it is already there on the device.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I refer to section 2(d) in the amendment: "in which the person is engaged in sexual activity". We would like to add in there "or depicted as being engaged in sexual activity" because these things can be Photoshopped or tampered with or images that do not exist can be attributed to people.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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The section that is proposed to be inserted covers that by mentioning "any... digital representation" so any type of altering of images where there is a different head on a different body or any type of amendment to what was a real image suggesting that it is somebody else. It is covered within the definitions section.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We will keep an eye on Deputy Bríd Smith's radar in future. I will ask the clerk to keep an eye out so that if she is indicating again I will be sure to see her.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Leave my radar alone. Just look at my hand.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I will use whatever way I can communicate and see.

Pa Daly (Kerry, Sinn Fein)
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Following on from what Deputy Bríd Smith said, it may become relevant to section 6 later on about the Internet providers and their obligation to remove images. Will this be covered or does the Minister feel this is covered adequately in the Act?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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There is already precedent that where something is a criminal offence there is a legal requirement on the company to remove it. The fact that a lot of what we are talking about is not a criminal offence is where the problem lies but there is already an EU regulation from 2011 which clearly sets out a legal requirement for any of the platforms to remove what is illegal content.

Pa Daly (Kerry, Sinn Fein)
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Therefore, the Minister does not feel it is necessary to include that in the Act.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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No. It is dealt with elsewhere in other legislation.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The issue to date is that it was not a criminal offence. That is why it was not subject to the provisions but it automatically will be once this comes in.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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I have a short comment in respect of that. I understand what the Minister is saying but is it the case that if the image is up there, one has to wait until the criminal offence is proven before it is removed? It could be a long period from the victim in this situation saying that he or she wants the image taken down until it is proven that a criminal offence has occurred.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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This will be specifically dealt with in the online safety and media regulation Bill that the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, is bringing forward. The onus is there when something is illegal and is brought to the attention of the authorities. My understanding is that even without a code of conduct, the social media platforms ask their members to adhere to rules and that something like this should be in contravention of those. It is about making it a criminal offence on our side to strengthen it and also making sure that the online safety commissioner that is being proposed as part of the other legislation would then have an oversight on where the companies are not adhering to their codes of conduct or to the elements around illegal content. There are a number of pieces that have to come together but what we have in this Bill will support the other work by the Minister, Deputy Catherine Martin.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We are jumping ahead a bit because that discussion pertains to section 6. I ask members to proceed in sequence as much as we can because it makes matters easier. There are enough amendments and amendments to amendments without jumping ahead of ourselves..

Amendment No. 3 proposes that the new section be inserted. Does the Minister want to press the amendment?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Yes.

Amendment agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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In that case amendments Nos. 4, 5 and 6, inclusive, effectively fall because the amendments cannot be made as the section is no longer present as constituted.

Amendments Nos. 4 to 6, inclusive, not moved.

Section 2 deleted.

SECTION 3

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We will discuss amendments Nos. 7 to 13, inclusive and No. 46 together. Amendments Nos. 8 and 9 are alternatives to No. 7. Amendments Nos. 11 and 12 are alternatives to No. 10. Again, we effectively have a block of amendments.

I move amendment No. 7:

In page 4, to delete lines 13 to 19 and substitute the following:

“(3) A person commits an offence where he or she, without lawful authority or reasonable excuse, stalks another person (in this section referred to as the other person) by— (a) persistently following, watching, pestering or besetting the other person,

(b) persistently communicating by any means of communication with the other person, or

(c) persistently communicating with a third person by any means of communication about the other person. (4) For the purposes of this section a person stalks the other person where— (a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other person’s peace and privacy,

(b) causes alarm, distress or harm to the other person, and

(c) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other person’s peace and privacy and cause alarm, distress or harm to the other person. (5) A person who commits an offence under this section is liable— (a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.”.

The first amendment in this section, No. 7, is in my name. As I indicated at the start, I will not press any amendments I have tabled myself. I may return to them on Report Stage but I solely want to note that this pertains to the standalone definition of "stalking" as a separate offence. It was contained within the Law Reform Commission report as one of the other options for this legislation but it is not contained within the current Bill. As I said, I will not press that amendment or speak to it any further other than to indicate it and perhaps we will return to that on Report Stage, depending on how the Bill develops in between. I withdraw amendment No. 7.

Amendment, by leave, withdrawn.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I move amendment No. 8:

In page 4, line 14, to delete “his or her” and substitute “their”.

It is self-explanatory that we delete "his or her" and substitute with "their" and that covers all gender types and identifications, in line with what is currently relevant. I want to push this amendment. It degenders the issue.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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The challenge with the amendments here is that we are proposing to delete this section. Perhaps this could be accepted on a later Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We will discuss these amendments as a block and the next amendment is No. 9 and so on. Then we will consider all the amendments in this block. There is a proposal that this section will be deleted in any event so the discussion on this amendment may be moot.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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It is moot. I would prefer to hear from the Minister about how she is proposing to address these sets of questions together. I do not need to press amendment No. 9.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Does Deputy Pringle wish to speak to amendment No. 10?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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No. This section will be deleted so I reserve the right to bring the amendment back in on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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If any member wishes to identify a policy issue and put it out there at the committee for discussion, even if it is intended to withdraw it, there is no issue with that and it may help to ventilate the issue. Does Deputy Smith wish to speak to amendment No. 11?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I argue that this is more far-reaching and goes beyond the question of trust to cover people who are known to each other.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendment No. 12 is in my name. I am not going to move the amendment but I will briefly outline the rationale for it. The Bill already covers the position of relationships and of people known to each other. This pertains to a position where people may not know each other but content, images or video may come into the possession of somebody through his or her occupation, perhaps in law enforcement, such as a garda, or the medical profession, and there are different scenarios where there could be a trust issue and a breach of trust may ensue. That could be an aggravating factor. Again, I just put it out there and I reserve the right to reintroduce the amendment on Report Stage. I would ask that, if there are any views on this, perhaps they could be communicated in advance of Report Stage so we could consider it then. I will not press it and I will withdraw amendment No. 12.

Is Deputy Smith pressing amendment No. 8?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Yes.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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It is a bit awkward that we are debating amendments that will fall as soon as we delete the section. The point made by Deputy Smith in terms of a gender-neutral word could well be incorporated on Report Stage if the Minister would give that commitment.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It is something I can look at before Report Stage. My intention is that, hopefully, we would take Report Stage pretty soon but that still allows time to look at the potential for this to be included as part of the new section that is being proposed. I need to follow up and check what the implications might be or any knock-on impact on legislation elsewhere.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 7 and 12 are withdrawn. Amendments Nos. 9 and 10 are withdrawn. We will take direction from Deputy Smith on amendments Nos. 8 and 11. There is a proposal to delete the section in any event, so it may well become moot. In that context, does Deputy Smith wish to return to this on Report Stage or does she wish to press the amendment?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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If the Minister has given a commitment to look at it, and I understand the language is new and not frequently in law, I will accept that. I will also accept it if she returns on Report Stage to amendment No. 11, which proposes to extend the wording to “ known to each other”.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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On amendment No. 8, the challenge is that the words “his or her” appear in the Bill numerous times so we are talking about quite a number of subsequent changes because of that, and it does not necessarily change the intent of the Bill or how the legislation will operate. That is probably the biggest challenge in that it has a knock-on impact on many other sections of the Bill. I understand we are taking Government amendments and Opposition or party amendments quite close together because we are trying to progress the Bill as quickly as possible, and it leaves us in this situation where there is a shorter timeframe. My only concern is that it will have a knock-on impact on the rest of the Bill or elements of it. I ask that the amendment would not be pushed at this stage, on that basis.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I suggest that it is clarified within the definitions and not left out, because it is of great concern to many young people.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I want to see if that would be possible in terms of just amending it at an earlier stage of the Bill. I will commit to look at that to see if it is possible, as I do not know. As I said, it has a knock-on impact on the rest of the Bill so I cannot give a commitment on it. I understand where the Deputy is coming from and the intention behind the amendment.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Deputy Smith has flagged a policy concern and the Minister has indicated she will take it away and see if the matter can be accommodated on Report Stage. Deputy Smith, of course, has the right to reintroduce her amendment on Report Stage if she wishes to do so. Is that agreeable? The amendment is withdrawn for now, with the right to return on Report Stage.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Does that apply to amendments Nos. 8 and 11?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I have already withdrawn amendments Nos. 7 and 12, and amendments Nos. 9 and 10 are also withdrawn.

Amendment, by leave, withdrawn.

Amendments Nos. 9 to 12, inclusive, not moved.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Minister has proposed that section 3 be deleted.

Question, "That section 3 be deleted", put and agreed to.

NEW SECTIONS

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I move amendment No. 13:

In page 4, between lines 32 and 33, to insert the following:

Stalking

4.(1) A person commits an offence where he or she, without lawful authority or reasonable excuse, stalks another person (in this section referred to as the other person) by- (a) persistently following, watching, pestering or besetting the other person,

(b) persistently communicating by any means of communication with the other person, or

(c) persistently communicating with a third person by any means of communication about the other person. (2) For the purposes of this section a person stalks the other person where- (a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other person’s peace and privacy,

(b) causes alarm, distress or harm to the other person, and

(c) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other person’s peace and privacy and cause alarm, distress or harm to the other person. (3) A person who commits an offence under this section is liable- (a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.”.

This arises from a recommendation from the National Observatory on Violence Against Women for the definition of stalking to be more concise in the Bill. That organisation feels strongly that this does not honour fully the recommendations of the Law Reform Commission report or those specialist front-line and advocacy services that have called for a separate and specific offence of stalking to be included. It is important that it is included and that people would not need to be in an intimate relationship in all cases.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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On the same point, the Minister is trying to address that so I would like to hear from her.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I want to clarify what section we are dealing with.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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It is section 4, amendment No. 13, which seeks to insert a new offence of stalking as a stand-alone provision.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Looking at the legislation that currently exists, the language in the Non-Fatal Offences Against the Person Act 1997 is quite a strong definition of harassment that covers stalking as well. What we are trying to do here is strengthen that even further by amending this legislation so harassment is not just to a person but about a person, and where there is a particularly severe element, or where it is of a persistent nature, the maximum penalty increases from seven to ten years. In terms of creating a new offence, there is a feeling that what is currently there is very good and this will only strengthen it. Creating a new stalking offence will not change or improve things, given what is already encompassed in the language around harassment. In previous cases, judges have given decisions under harassment law but have referred to it as stalking, so it is already happening that stalking is being connected with harassment legislation.

In the engagement with members of the Garda Síochána, it is very much their view that what they have is strong enough. What we are proposing is to strengthen the harassment piece. In the language that has been used to date, stalking is very clearly understood to come under the harassment element. I am not sure that creating a new stalking offence would improve or help things any further. Again, I understand the intention but what we are being told is that it is not necessarily needed.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I agree with the Minister. I am aware of cases where gardaí are prosecuting people for persistently sending images or persistently following up with people, and that is done under existing laws, so it is not perhaps necessary to create a separate offence.

The value of the amendment is to be able to raise and clarify that and ensure that it can be addressed in the other legislation.

To follow up also on the aggravating factor in the Domestic Violence Act, I see that the Minister has an amendment on that as well which covers the other point that I was also making.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Deputy.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It highlights that under the Domestic Violence Act it is not just about physical violence but this is another way, as the Deputy has said, of highlighting that point.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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A further point on that is the length of time that other legislation has been in place and the number of times it has been used to deal with addressing this sort of offence. When one cannot find an offence in law, it would mean that the Garda or the DPP would have to be inventive to have provision made for it there. To have it defined might be-----

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Does the Minister wish to respond on that point?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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My understanding is that the offences themselves and what a person does is very clearly defined and set out in the harassment legislation under the Non-Fatal Offences Against the Person Act 1997. The introduction of the title of stalking does not actually change the Act itself and what a person necessarily has to do to be convicted. I do not have in front of me the number of cases or times it has been used but through engagement with An Garda Síochána, with the legal profession, and in preparing for this, it has been made clear that this legislation, which we are strengthening and adding to in this Bill, is sufficient to deal with what we are talking about here, namely stalking. It is perhaps just a different terminology.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Section 10, as it stands, in the Non-Fatal Offences Against the Person Act may be considered quite a robust piece of legislation that is used regularly across the courts.

Pa Daly (Kerry, Sinn Fein)
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I am inclined to agree with the Minister and the Chairman on this point. Over the past ten years, in particular, the number of cases that have been taken in the court under section 10 has increased greatly. The offending behaviour in a great number of them seems to cease with either a bail condition or under section 10 (3) where an order can be made. That tends to remove the problem. I would have to be convinced that a separate offence of stalking, on top of the new section 4 and the section 10 as exists already, needs to be created with a potential seven-year penalty already in existence.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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That offence which is connected to the bail laws, which the Deputy has referred to, currently stands for this particular offence.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Deputy Smith has indicated remotely and wishes to contribute to this. Is that right?

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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I hear what is being said about this offence being covered elsewhere but then why would an organisation which specifically focused on the very vexed question of violence against women want this offence included f there was not relevance to it? If it is not specifically stated anywhere else, why would it not be stated here for what it is, which is stalking?

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Thank you Deputy, we take the point. I call Deputy Carroll Mac Neill.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I have been involved with An Garda in cases of this nature and it is capable of taking prosecutions. The difficulty for it, on a practical basis, is getting social media companies and telecommunications companies to respond to it in a timely way in order to access the evidence that it needs to be able to take the different cases.

The Garda is clearly able to take the cases and under the powers provided to investigate, take statements and make prosecutions of this nature. From my perspective I was very happy to put this amendment down because it gives us an opportunity to have this discussion and to get the clarification from the Minister on the sentencing side of this. The powers are clearly there but I use this opportunity to call on telecommunications and social media companies to be of greater assistance to An Garda than they have been.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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On that point, we could have further engagement with the Minister, Deputy Martin, in her development of legislation and ensure this point is highlighted as an area of concern, as Deputy Carroll Mac Neill has outlined.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That concludes discussion on amendment No. 13. How stands the amendment? Is Deputy Pringle happy to withdraw the amendment on the basis of our discussion?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I am happy to withdraw the amendment.

Amedndment, by leave, withdrawn.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments No. 14 is related to amendments Nos. 32 and 47 and they will be discussed together.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I think we need to move amendment No. 46, in the new section.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That amendment, I believe, will be taken at the end, Minister.

The Minister may discuss that amendment now and we will move it at a later stage.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Is this amendment No. 15?

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We will be discussing amendment No. 46.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Amendment No. 46 relates to the new section to replace section 3.

Briefly, I am proposing that the harassment offence contained in section 3 of the Bill, as initiated, should be deleted as a number of issues have been identified with the approach taken on the new offence which I have briefly touched on in the conversations I have had. This is essentially to replace the section but it deals with many of the same issues.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Is the Minister moving that amendment?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I will be moving that amendment.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We will come on to and decide that at a later stage but it has been discussed and spoken to now, which is all in order.

We move now to amendment No. 14, which will be discussed with amendments Nos. 32 and 47 as part of this round, but we will take the amendments as we reach them.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I move amendment No. 14:

In page 4, between lines 32 and 33, to insert the following:

“Relationship between defendant and the person against whom the offence was

committed as aggravating factor in sentencing for certain offences 4.Where, in proceedings for an offence under this Act, the court is satisfied that—
(a) the defendant and the person against whom the offence was committed are known to each other, and

(b) in the course of or for the purposes of committing any offence under this Act, the defendant—
(i) made use of personal information, correspondence or records about the other person, being information or records that would, in the ordinary course of events, be

known only to the other person or members of the family, or friends, of the other person, or

(ii) made use of any electronic device or software in order to monitor, observe, listen to or make or view a recording of the other person or his or her movements, activities and communications, without the other person’s knowledge and consent,
the court shall take that fact into account as an aggravating factor in determiningany sentence to be imposed on the defendant for the offence.”.

This amandment comes from engagement with the the National Observatory on Violence against Women and it is to basically ensure that there is consistency with the Domestic Violence Act 2018 and that all offences created by the Bill, and that acts committed by intimate partners or former partners as identified in the Domestic Violence Act are aggravating factors. That is a good practice and these should be taken as aggravating factors, that is, if somebody is the ex-partner of the person against whom the offence is being committed. This is basically just to eshrine that in this Bill.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Deputy. We will now consider amendment No. 32 unless the Minister wishes to respond to amendment No. 14.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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What I am proposing to do in amending section 40 of the Domestic Violence Act 2018 does exactly what the Deputy is looking to do there in that amendment, namely ensure where a person is in a relationship or has been in a relationship that this would be an aggravating factor. We are doing that through amending the Domestic Violence Act. I returned to the point that I made earlier to Deputy Carroll Mac Neill, which is that this is very much thinking of it as not just a physical act of violence but as a continuation of that type of intimidation and abuse against women, mainly, which we are discussing here. Obviously it works both ways.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Minister for that. That ties in with amendment No. 12 which I have spoken to earlier in a similar vein.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I would also say that amendment No. 14 is quite prescriptive in its parts 1 and 2, and is actually too prescriptive because it means one has to prove all of this whereas what we are proposing is that the offence has occurred and somebody has been injured by it occurring; having to prove all of this makes it that little bit more difficult for the person who is bringing the charge.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Very good.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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For the information of members, I am referring to is section 4 of amendment No. 14, parts (b) (i) and (ii) with reference to the relationship between the defendant and the fact that they would have to have "made use of personal information, correspondence or records about the other person,". The sense is that this is too prescriptive and makes it more difficult as one has to prove all of this. What the legislation proposes to do is that the offence has occurred without having to prove as outlined in the amendment.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We have spoken on amendment No. 14 and have touched on amendment No. 32 as well. Does Deputy Pringle wish to come back in again?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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The idea is to make this prescriptive. Is it the case that the aggravating factor that somebody is a partner is already included in the Bill?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Yes, it is included in the Bill.

There is a proposal in this amendment that the defendant and the person against whom the offence was committed are known to each other. That in itself narrows what I am proposing, in the sense that there is a requirement one knows somebody. What we are proposing here is that there are two separate offences, namely, that a person puts out an intimate image of somebody without his or her consent with the intent to cause harm and then without intent to cause harm. What is being proposed here is that it would have to be proved that one knew the person. We are proposing that it is a criminal offence in itself regardless of whether one intended to cause harm or whether one knew the person. The amendment would mean it would have to be proved that somebody knew the person, even if an offence has been committed.

We are dealing with the issue of a relationship as an aggravating factor in the Bill.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Minister is saying that the exegesis of the offence would include the necessity of a relationship. It could be a defence to a prosecution under that section to claim they were not known to each other.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Yes. It would put more of an onus to prove.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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It would complicate matters. It would be harder to bring home a prosecution.

Pa Daly (Kerry, Sinn Fein)
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Is the Minister saying that it would be taken into account as an aggravating factor once a case under section 4 is already proven?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Does the Deputy mean if they are in a relationship or not?

Pa Daly (Kerry, Sinn Fein)
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Yes.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It is absolutely the case that it will be taken as an aggravating factor that somebody has been or is still in a relationship.

Pa Daly (Kerry, Sinn Fein)
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I am inclined to agree with the Minister. I remember having a case one time in which a woman was asked by a garda on two different occasions if she knew a certain person from around the town. She gave two different answers, namely, that she knew the person but also that she did not know him that well. It was quite difficult to prove.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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It seems sensible.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Can I get clarification on domestic violence-related cases and amendment No. 47?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Amendment No. 47 proposes to provide for this aggravating factor by amending section 40 of the Domestic Violence Act. It provides that during sentencing for a relevant offence, the fact that the offence was committed by a person against a relevant person shall be treated for the purpose of determining the sentence as an aggravating factor. This would include a spouse, civil partner or someone who is or was in an intimate relationship with the other person.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I just wanted to check that the words "shall be considered an aggravating factor" were used, not "may be considered an aggravating factor", which it is under the Domestic Violence Act.

Pa Daly (Kerry, Sinn Fein)
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Could the Minister recap on that again?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Amendment No. 47 comprises a new section which I am proposing to insert in the Domestic Violence Act 2018. It will deal with the two new offences created for harmful images.

Amendment, by leave, withdrawn.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 15 to 26, inclusive, are related and may be taken together.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I move amendment No. 15

In page 4, between lines 33 and 34, to insert the following: “Distributing, publishing or threatening to distribute or publish intimate image without consent with intent to cause harm or being reckless as to whether harm is caused

4. (1) A person who distributes, publishes or threatens to distribute or publish an intimate image of another person—
(a) without that other person’s consent, and

(b) with intent to cause harm to, or being reckless as to whether or not harm is caused to, the other person, is guilty of an offence.
(2) For the purposes of subsection (1), a person causes harm to another person where—
(a) he or she, by his or her acts, intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person, and

(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other person’s peace and privacy or cause alarm or distress to the other person.
(3) A person who is guilty of an offence under this section is liable—
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment to a fine or imprisonment for a term not exceeding 7 years, or both.”.

This amendment proposes to delete the offence of distributing, etc an intimate image without consent in section 4 as was initiated and to replace it with a new offence of distributing, publishing or threatening to distribute or publish an intimate image without consent with intent to cause harm.

Several issues were identified with the original section 4. The initial proposals by the Law Reform Commission in its 2016 report on harmful communications and digital safety was to have two separate offences to deal with the distribution of intimate images with the intent to cause harm and the taking or distributing of images without any requisite intent to cause harm.

This amendment sets out the different offences and penalties as set out in section 4(1) as initiated to intend to accommodate the various different behaviours as have been outlined. This is considered problematic in terms of the prosecution of such an offence if there is no distinction made in the offence itself as to whether there was an intention or recklessness to cause harm to the victim of the offence.

What I am proposing is more appropriate to deal with the intended behaviour separately and to provide separate penalties proportional to each. Where there is an intent to cause harm, the maximum penalty is an unlimited fine and up to seven years in prison. If it is without intent to cause harm, it is a €5,000 fine and up to 12 months in prison.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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The amendment uses the words "intentionally or recklessly seriously interferes". How will it be determined that somebody has seriously interfered?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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These were terms that were agreed upon following engagement with the relevant stakeholders and individuals. The language is broad enough to encompass all variations relating to an individual who may have come to harm. There are proposals to include some other types of language as well. However, we were informed that this wording is broad enough to cover what is required. It is similar to my comments on harassment and that it covers stalking as well.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Am I right in saying the language the Deputy is referring to, that is, the phrase "seriously interfere" is taken from section 10 of the Non-Fatal Offences Against the Person Act 1997 and it will be interpreted by judges if a trial were to proceed-----

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I think it would be in the same way-----

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is my understanding.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It is there since the 1997 Act. There is a proposal with regard to good name but we are told it is also covered under the definitions as supplied.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Does that answer Deputy Pringle's question?

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Not really but I will accept it.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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It is in existing legislation and the 1997 Act.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Section 10 of the Non-Fatal Offences Against the Person Act is a broad instrument.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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A seriously broad instrument.

Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I absolutely accept what the Minister is saying. The difficulty with the phrase is, of course, that it is a subjective test as to how it impacts on a person. One of the consequences of this type of offence is that people do not necessarily want to admit it has had a serious effect on them. If that is the threshold for reaching a prosecution or getting a conviction, it will be difficult. This may have happened to me without me asking that it happen and I do not want to concede it has had a serious impact. What does that mean anyway and how do I prove it has had a serious impact or an impact on my relationship or my peace of mind? People have different thresholds for what interferes with them. This has a different impact on different people. I hope I am expressing myself properly. I appreciate the definitions in the 1997 Act but from the victim's perspective perhaps the word "serious" will create a barrier to making a complaint or complaining at a sufficient level for it to be heard. It is a barrier for victims. It may not be something that can be addressed within the timeframe but it is something that has to be looked at from a victim's perspective overall.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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The situations that can occur are often between minors, where two 15-year-olds share an image and that image becomes public and then somebody else takes it and shares it more broadly. The victims in a case like this may not want to admit, make a complaint or do anything. Perhaps it will be on their minds and cause damage for years afterwards. A complaint may not come to the surface for quite a length of time. The reckless and serious interfering with the person's peace is something that could go on for a long time before a complaint is made. In this context, I wonder how it can be dealt with in the definition. The person may keep this as a very private hurt and damage.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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There is a test referenced earlier in the legislation on what is deemed "recklessness" or something that "seriously interferes". We are trying to highlight that this is a serious issue, which is why we are making it a criminal offence. My understanding is there are tests that have to be adhered to in terms of interpreting the impact it has had, and taking into account the language being used and the possible implications for the individual concerned.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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Intentionally or recklessly interfering with another person's peace or privacy is very serious and there is a barrier with the inclusion of the word "seriously" because it sets a bar for the individual. People may be under the impression that what has happened is not serious enough. However, the act itself is serious enough to warrant being in legislation. The word "seriously" should be removed because intentional or reckless interference is very serious.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I do not think there is any objection to seeing whether we can remove it or deal with it at a later Stage. I do not think the intention is to try to create a barrier and make it more difficult for anybody. It is just language, as the Chairman has outlined, that is there and is used at present. If there is a sense it could cause a problem I am happy to look at whether we can remove it.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I believe this concludes the discussion on the amendment.

Pa Daly (Kerry, Sinn Fein)
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Deputy Howlin raised a consent issue in quite a detailed way in his proposed legislation. There had been some suggestion that consent could be defined a little bit more specifically, such as what is contained in the Criminal Law (Sexual Offences) Act 2017. This amendment deals with it quite briefly, if we want to put it that way. Does the Minister believe it is adequately covered without that other person's consent?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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The feeling on this is that if we place too much of a cumbersome onus on consent and having to define it, it will create more of a challenge and that it is easier without it. The definition as was included in the sexual offences legislation is quite specific in terms of people being asleep or where there clearly is not consent, which does not really apply in this instance. We would be creating a separate terminology. For the purpose of this measure, it might place a more cumbersome onus on the person to have to define it. The legal advice is that it would be simpler without it, obviously understanding the reason behind the proposal for it. I do not think it would work when connected to the other definition because it is quite specific to sexual offences.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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As I indicated amendments Nos. 15 to 26, inclusive, will fall if amendment No. 15 is passed. Amendment No. 26 is grouped for discussion in this block. Does the Minister have anything further to add on amendment No. 26?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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This does not mention intent because it takes it out of the section itself, which means there is no need to indicate whether there was intent. This also covers upskirting and other elements that have been raised as issues and problems.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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In response to the point raised by Deputy Bríd Smith, I believe holding a recording would also be captured by this.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I need to clarify this with regard to my comments earlier, to be 100% certain about how the holding of images is clearly defined in this. Perhaps I can come back to the Deputies. The fact there is an image on someone's phone, whether or not it is intentionally stored, means it is stored. I want to get absolute clarity for Deputies on this before we finish.

Amendment agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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As amendment No. 15 has been agreed to amendments Nos. 16 to 25, inclusive, no longer stand.

Amendments Nos. 16 to 25, inclusive, not moved.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Will we still have leave to raise these issues on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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If Deputies signal now.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I will seek to review on Report Stage amendments Nos. 16, 18, 19, 21, 23 and 25.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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With regard to amendment No. 24, the image in most of these cases is that of another person, whereas I am not sure whether it fully deals with people who sends an unsolicited image of themselves to somebody else.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It is not and the amendment does not create an offence by this provision and it does not appear elsewhere in the Bill. It is not something that could be dealt with based on this amendment. Separate to where somebody sends images and it turns into a form of harassment, which is covered under the harassment element of the legislation, somebody sending a picture is not covered in this, and, unfortunately, the amendment tabled by the Deputy does not create it as an offence.

It does not appear in the rest of the Bill so it cannot progress.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Before we move on from this group of amendments, Deputy Bríd Smith indicated her desire to come in.

Deputy Bríd Smith:

Yes. Regarding amendment No. 25, I have concerns that we would be making it an offence for certain images to be sent with consent and that inserting this provision under the Sex Offenders Act may have an impact on sex workers. May I return to this matter? I will just leave it for mention on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Deputy is indicating she may return to this on Report Stage. Is that right?

Deputy Bríd Smith:

Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is in order.

Section 4 deleted.

NEW SECTIONS

Deputy Helen McEntee:

I move amendment No. 26:

In page 5, after line 37, to insert the following: “Recording, distributing or publishing intimate image without consent

5.(1) Subject to subsection (2), a person is guilty of an offence where—
(a) he or she records, distributes or publishes an intimate image of another person without that other person’s consent, and

(b) that recording, distribution or publication, as the case may be, seriously interferes with that other person’s peace and privacy or causes alarm, distress or harm to that other person.
(2) Subsection (1)shall not apply to a person who distributes or publishes an intimate image for the purpose of the prevention, investigation or prosecution of an offence under this section.

(3) A person who is guilty of an offence under this section is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both.”.

Amendment agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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There are four amendments, Nos. 27 to 30, inclusive, in the next grouping. The position is similar to that of the previous grouping, namely, amendments Nos. 28 to 30, inclusive, will, by definition, fall if amendment No. 27 is agreed to. However, we can have some discussion on these amendments if members wish to raise policy issues. If they wish to press the amendments, that is possible also.

Deputy Helen McEntee:

I move amendment No. 27:

In page 6, between lines 1 and 2, to insert the following: “Distributing, publishing or sending threatening or grossly offensive communication

6.(1) A person who—
(a) by any means—
(i) distributes or publishes any threatening or grossly offensive communication about another person, or

(ii) sends any threatening or grossly offensive communication to another person,

and
(b) with intent by so distributing, publishing or sending to cause harm,

is guilty of an offence.
(2) For the purposes of subsection (1), a person intends to cause harm where he or she, by his or her acts, intentionally seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person.

(3) A person who is guilty of an offence under this section is liable—
(a) on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment to a fine or imprisonment for a term not exceeding 2 years, or both.”.

Amendment No. 27 is proposed to replace the offence of sending threatening, etc., messages provided for in section 5 of the Private Member's Bill. The offence is intended to criminalise all forms of such communication, including messages distributed, published or sent online through social media platforms, for example, but also in any other manner. Significant concerns were raised by various stakeholders during the drafting of the amendments about the offence provided for in section 5 of the Bill as initiated. The main concerns are that a very broad provision on the sending or distribution of threatening, false, indecent or obscene messages could see a lot of online posts or communications between persons come within the remit of the offence. While there is a requirement for intent to cause harm or to be reckless as to whether harm is caused in the distribution of a message in paragraph (a) of the offence, there was no requirement in respect of paragraph (b), which is considered problematic. My officials have consulted extensively with the Office of the Director of Public Prosecutions in this regard in the development of the offence.

I am aware that it is necessary to try to strike a balance between the right to freedom of speech and the need to protect members of society from significant harm. The offence I propose involves a lower penalty than that proposed in the Private Member's Bill as this offence will criminalise the sending of one single message. As such, it should not incur a similar penalty to those incurred by crimes such as harassment, which require persistence. Any sanction imposed proportionate to the crime committed and the proposed new sentence is considered to be in keeping with offences currently laid out in the Statute Book.

I also propose to narrow the scope of the offence to one which is targeted solely at those who seek intentionally to cause harm to another individual through the use of offensive or threatening communication. This is to avoid a situation in which there is a large quantity of material, potentially online, which may be offensive in nature but where the person involved did not intend any harm and will not come within the scope of the offence.

Finally, consideration was given to the offence contained in section 13 of the Post Office (Amendment) Act as what was contained in the Private Member's Bill sought to replace this entirely. Officials from my Department have consulted extensively with the Department of the Environment, Climate and Communications on the matter and it was agreed that the offence in the 1951 Act should be retained along with the creation of a new offence which would run in tandem with the Act to address circumstances not entirely provided for in section 13 offence.

This matter will be dealt with in more detail in the context of amendments to delete section 15. I have discussed it with Deputy Howlin. I am sorry for the long explanation.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Would the Minister mind repeating her final point? She has indicated that this is related to section 15 as well. Is that right?

Deputy Helen McEntee:

Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Section 15 as it stands, as opposed to as amended.

Deputy Helen McEntee:

I will propose the deletion of section 15.

Deputy Brendan Howlin:

We have had some discussion on every section of this Bill. However, if people look back to the original Bill I proposed, in section 5, relating to the sending of threatening messages, was based, as the Minister indicated, on section 13 of the Post Office (Amendment) Act 1951, which goes back a long way. The 1951 provision related to a person committing an offence by sending any message by telephone which was grossly offensive, indecent, obscene or menacing. This was restated in the Communications Regulation (Amendment) Act 2007. I sought to incorporate that and replace it with this section of the Bill. This is one area where the Minister's proposals are probably considerably lesser than the proposals in the original Bill, probably - if I recall - for reasons of ease of prosecution. The Minister's version stipulates that an offence is committed only where a person distributes or publishes threatening or grossly offensive communication with another person or sends any threatening or grossly offensive communication to that person with intent to cause harm, where that person intentionally seriously interferes with the other person's peace and privacy, causing alarm and distress to the other person. In other words, the issue of intent in the original Bill was as per the previous section, which refers to being reckless as to whether alarm, distress or harm is caused by the action. It is quite a big move to prove that the intention to cause harm was deliberate.

The formulation now before the committee, in the Minister's version, is that a defendant would not be guilty of an offence if the prosecution could not prove that that person set about to cause harm intentionally, as opposed to being reckless as to whether or not harm was caused. My concern is that this would be difficult to prove. The subsection states that the accused person is presumed to have intended the natural and probable consequences. This section would be a saver clause under the Criminal Justice Act. I mentioned to the Minister that if this were to be inserted into the Bill and if there were a presumption that the natural consequences did in effect cause harm, this would be presumed to be the intent of the perpetrator. If we could put that saver clause in the Bill, which is, as I said, taken from the Criminal Justice Act 1964, I think it would make this section more robust in prosecutorial terms.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I think the Deputy is referring to section 4 of the 1964 Act, the homicide provisions-----

Deputy Brendan Howlin:

Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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-----which have given rise to lots of jurisprudence-----

Deputy Brendan Howlin:

Section 4(2), to be exact.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Very good. It is certainly tried and tested.

Deputy Jennifer Carroll MacNeill:

I wish to pick up on Deputy Howlin's point and the issue of intent. It is important in terms of prosecution. Again, the issue of seriously interfering with the other person's peace is repeated here and it seems to speak to the impact on the person rather than the seriousness of the act. The two combined may make it very difficult perhaps not to prosecute but certainly to achieve a prosecution. It is probably worth looking at the language used because, again, it puts the onus on the victim to prove that it was a serious interference rather than the act in itself being serious.

Deputy Helen McEntee:

My understanding is that while there is a requirement for intent to cause harm or to be reckless as to whether harm is caused in the distribution of the message in paragraph (a) of the offence, there is no requirement in respect of paragraph (b), which is what Deputy Carroll MacNeill has said is considered problematic. I think the biggest concern - concerns were raised by various stakeholders - is that there could potentially be a very broad provision relating to sending a lot of messages that would suddenly become an offence that would incur quite a significant penalty even though it-----

Deputy Brendan Howlin:

It might lessen the burden on Deputies.

Deputy Helen McEntee:

There are a lot of communications between people online that could potentially come under that provision if there is not some onus or requirement to show there is intent. Many people could come under this section, which would make it very difficult because there would be an onus on the Garda to respond to every single complaint and challenge put to it. There needs, therefore, to be some element of a requirement in that regard. Again, my understanding is that while there is a requirement for the intent to cause harm, there is no requirement in respect of paragraph (b) of the same section.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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On that section, is the term "grossly offensive" defined in the definitions section of the Bill? How is that to be defined?

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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Again, this is language used in other legislation. It is from previous legislation. I know there are proposals in terms of different types of wording, but much consultation was done and there was engagement with stakeholders to look at this language and make sure it covers everything it needs to cover. We are informed that it does.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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What about the issue of putting in a saver clause? The presumption that needs to be rebutted is that the natural and probable consequences can be adduced in court. In other words, if somebody is genuinely seriously harmed, it must be accepted that this was the intent of the perpetrator.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I am not sure if that is something that can be included. Perhaps it would be taken as part of what is proposed in this section anyway, if it were to be interpreted in that way by a judge or somebody else based on what is currently in amendment No. 27.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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We might look at it on Report Stage.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I can look at it further based on what the Deputy is proposing.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I would like to flag for the record that I may return to this amendment on Report Stage. I will not elaborate on it now.

Photo of Bríd SmithBríd Smith (Dublin South Central, People Before Profit Alliance)
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The word "persistent" is not included here. Is the Minister talking about criminalising under this section the once-off sending of an image? I agree with the points made by Deputy Howlin about how one proves the intent.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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It is just a one-off. I suppose that is why there is a concern. If somebody sends one message with no real intent to cause harm, but it obviously does cause harm, he or she could essentially be prosecuted for sending one message where there was no intent. It is not intended to cover the persistent sending of messages. It is just one.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I believe that was the difficulty under the old section 10. The fact that prosecution required repetition was the reason for some of the complaints about prosecutions around cyber issues. The Minister is saying that is not the case in this section, as drafted.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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No. This is one that would cause many problems.

Amendment agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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As a result of the agreement of amendment No. 27, amendments Nos. 28 to 30, inclusive, fall. In addition, the agreement of amendment No. 27 has resulted in the deletion of section 5 of the Bill.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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I reserve the right to reintroduce amendments Nos. 28 to 30, inclusive, on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is noted and in order.

Amendments Nos. 28 to 30, inclusive, not moved.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I recognise that Deputy Niamh Smyth has joined us as a new member of the committee and will be with us going forward. She is welcome. I look forward to her contributions today and on other days into the future. I wish her well on this committee.

Amendment No. 31, in the name of the Minister, proposes a new section 6 of the Bill. Amendments Nos. 31 and 39 to 41, inclusive, are related and will be taken together, along with amendment No. 1 to amendment No. 31. We will not dispose of amendment No. 31 until we have disposed of the amendment to amendment No. 31 in order that we know whether we are dealing with the amended or unamended version of the amendment. It is a bit of a "Peter Piper". Amendment No. 1 to amendment No. 31 is in the name of Deputy Howlin.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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It seeks to preserve something that I put in the original-----

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I need to take guidance.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The sequence is important here. I need the Minister to move amendment No. 31, after which we will take Deputy Howlin's amendment to the amendment as part of this grouping. I remind the committee that amendments Nos. 39 to 41, inclusive, are related. However, we will take them separately because they do not relate to the first two, which are quite closely intertwined.

Photo of Helen McEnteeHelen McEntee (Meath East, Fine Gael)
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I move amendment No. 31:

In page 6, between lines 10 and 11, to insert the following: "Anonymity of victim of offence under section 4* or 5**

6. (1) Where a person is charged with an offence under section 4* or 5**, any person who publishes or broadcasts—
(a) any information,

(b) a photograph of, or a photograph that includes a depiction of, the alleged victim of the offence, or

(c) any other representation of the physical likeness, or any representation that includes a depiction of the physical likeness, of the alleged victim of the offence,

that is likely to enable the identification of the alleged victim of the offence, is, subject to any direction under subsection (2), guilty of an offence.
(2) Where a judge of the court in which proceedings for an offence under section 4* or 5**, as the case may be, are brought considers that the interests of justice so require, he or she may direct that such information, photograph or representation referred to in subsection (1)as he or she specifies may be published or broadcast in such manner and subject to such conditions (if any) as he or she specifies in the direction.

(3) A direction given under subsection (2)shall be in writing.

(4) A person who contravenes a direction given under subsection (2), including a condition in such a direction, is guilty of an offence.

(5) A person who is guilty of an offence under subsection (1)or (4)is liable—
(a) on summary conviction to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 3 years, or both.
(6) It shall be a defence for a person who is charged with an offence under subsection (1) or (4)to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect—
(a) in the case of an offence under subsection (1), that the information, photograph or other representation published or broadcast was information, a photograph or other representation referred to in that subsection, or

(b) in the case of an offence under subsection (4), that the information, photograph or other representation was published or broadcast in contravention of a direction given under subsection (2), including a condition in such a direction.".

This amendment deals with the anonymity of victims under the Bill. Section 11 of the Bill, as initiated, provides for restrictions on reporting akin to those provided for in section 7 of the Criminal Law (Rape) Act 1981, as amended, which would prevent the publication of information with regard to a person against whom an offence has been committed. Any exception to this must be authorised by the court.

It is considered that section 11, as drafted, is overly cumbersome. It is proposed to introduce an "interests of justice" test for a judge to consider whether he or she would lift the requirement not to publish or broadcast information likely to identify a victim.

Furthermore, if we look at the categories of persons who may be guilty of an offence, under subsection 7 it is considered to be unnecessary and it would be unfavourable to punish anybody who publishes or broadcasts, as defined, information in contravention of the provisions of the Bill. It also accommodates the changes to the definitions of "publish" and "broadcast" in the interpretation section.

My amendment proposes to cover the image-based offence under the Bill only. Deputies will agree that any restriction on reporting with regard to criminal matters should be proportionate and, obviously, not taken lightly. While I am of the view that the anonymity of a victim of an offence relating to the distribution of intimate images should be protected, I am not entirely convinced these restrictions on reporting are justified with regard to the offence of harassment. This offence encompasses many types of behaviours and scenarios, not all of which justify any restriction on reporting. This is obviously within the power of a judge in terms of restricting reporting in any criminal trial where he or she feels it is necessary to do so.

I know this is an area we discussed in terms of having harassment included with sections 4 and 5 as part of the anonymity element. We need to do a little bit more work and we gave Deputy Howlin a commitment to come back. We are still working on it but I hope it is something we can address by the time we get to Report Stage. It is something on which we are working and with which I have no issue. I suppose we just need to clarify the legality or the implications of it.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I will move swiftly to Deputy Howlin because I know he has an amendment to that amendment. It makes sense if we take them together.

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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I move amendment No. 1 to amendment No. 31:

In each place where "section 4 or 5" appears, to substitute "section 4 or 5 or section 10 of the Non-Fatal Offences against the Person Act 1997".

The Minister has addressed the issue at stake, which we have discussed at some length. This section deals with providing anonymity to victims of offences under the various sections. The Minister has agreed, in terms of the offences regarding intimate images and so on, that anonymity will be important because, basically, there would be an incredible barrier to people coming forward with complaints if they thought there would be a public discussion about personal images of them and they would be identified.

In the original proposal, I included victims of stalking and harassment in that level of anonymity as well. I believe there is a good case for that. I genuinely believe people, and I may be wrong to say so but I believe it is largely women, who are subject to online harassment and stalking should have the protection of anonymity if they wish to take a case. It would be a significant barrier to people reporting crimes of this nature, and having those crimes prosecuted, if they felt the level of harassment they endured would be a matter of public discourse and they would be identified in a court.

I fully accept the point that judges have discretion in these matters. I believe, however, the Oireachtas should signal that this, as a comprehensive Bill, would include each of the strands we are trying to cover in protecting people from harassment and an anonymity provision would apply here. I welcome the Minister's commitment to look again at this. I am interested in the views of other committee members on this point.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I invite Deputy Pringle to speak to amendments No. 39 to 41, inclusive, in his name.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Perhaps the Deputy will speak to those amendments, and that will complete the grouping.

Photo of Thomas PringleThomas Pringle (Donegal, Independent)
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Amendment No. 39 is related to what Deputy Howlin was talking about. What he said is right, but victims should also have the choice of waiving that anonymity. That is what this amendment aims to provide for. I believe it is important in terms of the victim having control over the situation. I ask that this be taken into account.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is across the Deputy's three amendments, effectively.

Deputy Thomas Pringle:

On amendment No. 41, it is important that a third party sharing a digital image be included because while the original image might be an offence, the fact that it is passed on should be an offence too.

Deputy Helen McEntee:

On amendments Nos. 39 and 40, I would be satisfied in the context of the interests-of-justice test, as set out in my amendment, that a victim's anonymity and wishes can be taken into account. The aim of these provisions is to protect the victim from being identified, not the perpetrator, but obviously the wishes of the victim should and can be taken into account, which I think has been covered in the amendment I tabled. On amendment No. 41, anybody who engages in this behaviour will be liable to prosecution. It is outlined in my proposed amendment, so I ask that people do not press amendments Nos. 39 and 40, because they are covered in what is proposed in the new section.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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How stands Deputy Howlin's amendment to the amendment?

Deputy Brendan Howlin:

I will return to it. The Minister will be coming back to the matter on Report Stage.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Jennifer Carroll MacNeill:

I move amendment No. 32:

“Relationship status an aggravating factor

6.Where, in proceedings for an offence under this Act, the court is satisfied that— (a) the defendant and the person against whom the offence was committed are or were in an intimate relationship, and

(b) in the course of, or for the purposes of, committing any offence under this Act the defendant—
(i) made use of personal information, correspondence or records about the other person, being information or records that would, in the ordinary course of events, be known only to the other person or members of the family, or friends, of the other person, or

(ii) made use of any electronic device or software in order to monitor, observe, listen to or make or view a recording of the other person or his or her movements, activities and communications, without the other person’s knowledge and consent, the court shall take that fact into account as an aggravating factor in determining any sentence to be imposed on the defendant for the offence.”.

Amendment, by leave, withdrawn.

Section 5 deleted.

SECTION 6

Deputy Helen McEntee:

I move amendment No. 33:

In page 6, line 13, to delete “connivance of” and substitute “connivance of, or to be attributable to any wilful neglect of,”.

These are technical amendments to the corporate liability provisions in the Bill as initiated. Amendment No. 33 will include the concept of wilful neglect as well as connivance in respect of bodies corporate commonly seen in statutory provisions on corporate liability. Amendment No. 34 will provide for the words "body corporate" instead of simply "body" on line 16, as the words "body corporate" appear everywhere else in the provision. This is to ensure that there is consistency and certainty in respect of who may be liable under a particular section. I ask that Deputies support these technical amendments.

Deputy Bríd Smith:

The Minister referred to covering corporate bodies. Does the word "connivance" allow a corporate body to say that it did not know material was being distributed? Does the word cover it as a deliberate act?

Deputy Helen McEntee:

I do not think it allows for what the Deputy is suggesting.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Perhaps that can be returned to on Report Stage if there is a question.

Deputy Bríd Smith:

I would like to return to it.

Deputy Helen McEntee:

I do not think it is.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Perhaps the Minister can advise the Deputy outside the committee or on Report Stage.

Amendment agreed to.

Deputy Helen McEntee:

I move amendment No. 34:

In page 6, line 15, to delete “body,” and substitute “body corporate”.

Amendment agreed to.

Section 6, as amended, agreed to.

SECTION 7

Question proposed: "That section 7 be deleted."

Deputy Helen McEntee:

I propose to delete this section to remove the extraterritorial jurisdiction provision contained in the Private Members' Bill as introduced. Detailed policy discussion with the sponsors of the Bill highlighted that the intention behind this section is to ensure that there would not be any issues with prosecutions in Ireland due to the location of servers in other jurisdiction. So, for example, there might be an excuse that material was on a server in Dallas, France or wherever else it might be. The intention behind the section was not to claim extraterritorial jurisdiction over citizens or residents abroad and it does not do so. As a result, I am satisfied that there are no issues with prosecuting in Ireland where somebody has been harmed or where the offence has been committed in Ireland. I know that was the initial intention of this section and after further discussion with Deputy Howlin, he has agreed to remove it. Once the crime is committed here, it is not needed.

Deputy Brendan Howlin:

I wanted to make sure that a person could not get away because the server was in Hong Kong or such.

Question put and agreed to.

SECTION 8

Question proposed: "That section 8 be deleted."

Deputy Helen McEntee:

I propose to remove this section as it relates to section 7 and to double-jeopardy provisions, which are often necessary when we are talking about extraterritorial jurisdictions. Given that the previous section is not required, this one is not required either.

Question put and agreed to.

NEW SECTION

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 35 to 38, inclusive, are related. Amendments Nos. 36 to 38, inclusive, are alternatives to No. 35. We will take amendments Nos. 35 to 38, inclusive, together.

Deputy Thomas Pringle:

I move amendment No. 35:

In page 6, between lines 33 and 34, to insert the following: “Summary proceedings: no time limit

9.Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted at any time from the date on which the person against whom the offence was committed became aware of, or should reasonably have become aware of the offence.”.

This amendment is self-explanatory. It removes the time limit for convictions under the Act and states that there is no time limit. The test should be as soon as the victim becomes aware of the offending image being used. That might not necessarily happen within the time limit of two years from the offence taking place. An image could be shared for two-and-a-half years before the victim becomes aware of it. As I read the Bill, that means that it could not be prosecuted from that point on. I want to make sure that the victims will always be able to have a comeback if they discover that the image has been shared.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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In the interests of time, I ask the Deputy to speak on amendment No. 37, which is part of the block.

Deputy Thomas Pringle:

Amendment No. 37 is a substitute for amendment No. 35. It is about the idea of when a person became aware of an offence, because when they become aware of it happening might be outside the two year timeframe.

Deputy Jennifer Carroll MacNeill:

My amendment, No. 36, addresses the same point.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendment No. 38 is in my name and addresses a similar point. I will not speak on it.

Deputy Bríd Smith:

Deputy Pringle makes an important point. We should be clear that one cannot put a statutory limitation on somebody's pain and hurt. I support removing the two year limit.

Deputy Pa Daly:

I think there is only one offence in the Act which is summary only. Is that correct?

Deputy Helen McEntee:

The other offences do not have a time limit but this is a summary offence.

Deputy Pa Daly:

The only such offence is the one relating to images. The proposal is that there would be no time limit whatsoever, and one could take a case 40 years later?

Deputy Helen McEntee:

The Act that is proposed to be amended has a time limit of six months, so we are extending that. The normal time limit of six months is being extended to two years, which is the maximum one would have in any other instance or where it has been for a summary offence. Obviously, what we are talking about is not as severe, although I am not saying it is not severe and does not have an impact, but all the other offences do not have a time limit. We are extending it to two years to try to acknowledge that this may not necessarily become apparent within the first six months.

Deputy Pa Daly:

Is the Minister talking about the new section 5? That is the only one.

Deputy Helen McEntee:

Yes.

Deputy Thomas Pringle:

It is a single image. Two years is too short a time. As the Deputy said, with 40 years somebody would be substantially older, but two years is very recent and I believe it should be extended out from that.

Deputy Helen McEntee:

The time limits provided for in law reflect the fact that an individual should not have something hanging over him or her for potentially 40 years. As it is a summary offence, it is not seen as being as severe an offence. One could have something which would be quite disproportionate 40 years later come under the same rules as a much more severe or harmful incident. All the other offences are covered without time limits in the rest of the Bill. Two years is the maximum increase from six months that has been provided for in the 1851 Act, so I am minded to stick to the two years for this specific offence given that it is a summary offence. As it is the District Court, it is a lesser offence than the others we are discussing.

Deputy Thomas Pringle:

I can see the point of two years if the offence was breaking a window or the like. However, if one shares an explicit image of somebody, it will be there forever.

Deputy Brendan Howlin:

There is a section dealing with threatening or offensive communications. The summary offence is if it intentionally causes interference with another person's peace and privacy. One does not discover that after 40 years.

Deputy Thomas Pringle:

It could be discovered after two.

Deputy Brendan Howlin:

It could.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Am I correct that two years would be the outlier in terms of other offences under that Schedule, and that going to two years is already the maximum that was there for any offence?

Deputy Helen McEntee:

It is. It has been in a number of instances, I believe, but for the vast majority of these types of offences it is six months. We are extending it to the two years, acknowledging that six months in this instance is not enough. At the same time we are acknowledging that we are dealing with a summary offence. The more indictable offences that have a higher penalty do not have any time limit.

Deputy Thomas Pringle:

We are talking about an 1851 Act. I do not know if they even had photographs in the newspapers at that time. It is quite dated and-----

Deputy Helen McEntee:

The intention behind it is still the same. While it might be 170 years old, the intention behind it is in terms of what is or is not a severe offence. I am not saying that it cannot cause harm or distress if somebody passes on a message or a photograph. For the purpose of this legislation, it is a summary offence.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Is it reasonable to say that the Act has been amended many times up until recently? Is that correct? It may have been commenced in 1851, but I do not believe that is the last time it was updated.

Deputy Thomas Pringle:

The point I am making is that the two years is out of date. We are talking about a digital image that will be there forever.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Absolutely. I am not getting into that point but just asking a question. It is 150 years old and my understanding is that, and the Minister can confirm it, it is amended regularly as legislation is made.

Deputy Helen McEntee:

I presume so, but the time limit is still six months in the Act. We are proposing to extend it beyond six months. That has been done in a number of instances, but not always. It is generally the six months of the Act, whether it is amended now or whatever the most recent amendment is. It is still six months and we propose to extend it to two years.

Deputy Bríd Smith:

I have a question for the Minister on this. There could have been hundreds of images on Discord, the site that sparked the recent controversy, that were more than two years on the site. Could she explain how that would be captured? How do people have access to justice in such a case, particularly with corporate bodies that are holding images?

Deputy Pa Daly:

That would be covered by section 4 anyway. Deputy Bríd Smith is talking about the recent case two weeks ago involving Discord, which was in all the newspapers. That is covered by section 4, which is indictable, so there would be no time limit at all in that case. The one we are discussing is section 5 which is-----

Deputy Bríd Smith:

That is fine. I thank the Deputy.

Deputy Thomas Pringle:

It has the same impact.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That has been a helpful discussion. I am reminded there are four minutes left in the slot, so if we wish to get through the business today we will have to advance quickly or we will have to return to them on Thursday. How stands amendment No. 35?

Amendment put and declared lost.

Deputy Jennifer Carroll MacNeill:

I move amendment No. 36:

In page 6, line 37, to delete “the offence was committed” and substitute “the person the subject of the image or harassment became aware of the offence having been committed”.

Amendment, by leave, withdrawn.

Deputy Thomas Pringle:

I move amendment No. 37:

In page 6, line 37, to delete “the offence was committed” and substitute the following: “the person against whom the offence was committed became aware of or should reasonably have become aware of the offence”.

Amendment put and declared lost.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I move amendment No. 38:

In page 6, line 37, after “committed” to insert “or when the person against whom the offence was committed became aware of the offence”.

Amendment, by leave, withdrawn.

Section 9 agreed to.

SECTION 10

Question proposed: "That section 10 stand part of the Bill."

Deputy Helen McEntee:

There is an intention to bring forward an amendment to this section following a discussion with Deputy Howlin on the wording of the amendment. I agreed to examine it again for Report Stage. It has become clear that if we are to finalise this legislation before the Dáil and Seanad rise before the end of this year, this piece of work will not-----

Deputy Brendan Howlin:

We might talk between now and Report Stage.

Deputy Helen McEntee:

I am happy to look at it, but I am proposing to introduce a criminal (miscellaneous provisions) Bill and, perhaps, it could be dealt with in that to allow this Bill to progress as quickly as possible. This could hold things up, and I am happy to continue to engage with the Deputy on it.

Deputy Brendan Howlin:

Is this the restraining orders?

Deputy Helen McEntee:

Yes, the civil element.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We can return to it on Report Stage when the Minister or Deputy Howlin might introduce an amendment.

Deputy Helen McEntee:

I am sorry, this has to do with the DPP. I am getting confused with the other one.

Deputy Brendan Howlin:

This is the plain language issue. We can come back to it.

Deputy Helen McEntee:

This is fine. I fully agree with the Deputy to bring it forward in easier language. The DPP agrees as well.

Deputy Brendan Howlin:

It is just plain English as opposed to justice language.

Deputy Helen McEntee:

I am sorry. I was looking at another section.

Question put and agreed to.

SECTION 11

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 39 to 41, inclusive, have been discussed with amendment No. 31. Deputy Pringle has proposed each amendment.

Deputy Thomas Pringle:

I move amendment No. 39:

In page 7, between lines 9 and 10, to insert the following: “(2) The person against whom the offence was committed may at any time, apply to a judge of the Circuit Court, to waive their right to anonymity. The Court may accept this provided the person is of sound mind and not a protected or relevant person or a ward of court.”.

Amendment put and declared lost.

Deputy Thomas Pringle:

I move amendment No. 40:

In page 7, to delete lines 10 to 18.

Amendment put and declared lost.

Deputy Thomas Pringle:

I move amendment No. 41:

In page 8, to delete line 21 and substitute the following:
“newspaper, and
(d) in the case of third-party sharing in a digital age, the third-party that executes the distribution.”.

Amendment put and declared lost.

Section 11 deleted.

SECTION 12

Question proposed: "That section 12 be deleted."

Deputy Helen McEntee:

I have engaged with Deputy Howlin on this. The section concerns the forfeiture of apparatus connected to an offence. I have also engaged with An Garda Síochána, which stated this provision would not be required.

Deputy Brendan Howlin:

I thought that for people filming obscene material, confiscation of the equipment would be good, but the Garda does not want that power, apparently.

Deputy Helen McEntee:

The concern is that if a phone is taken, the person can buy another. Nevertheless, I fully understand where the Deputy is coming from.

Deputy Brendan Howlin:

I am not going to row about it.

Question put and agreed to.

SECTION 13

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Amendments Nos. 42 to 44, inclusive, will be discussed together.

Deputy Thomas Pringle:

I move amendment No. 42:

In page 9, line 13, to delete “The Circuit Court” and substitute “A Court”.

The amendment seeks to expand the provision to include all the courts rather than just the Circuit Court.

Deputy Jennifer Carroll MacNeill:

My amendment, No. 43, seeks to enable take-downs, although the issue may have been dealt with elsewhere in the Minister's amendments.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Does Deputy Pringle wish to speak to amendment No. 44?

Deputy Thomas Pringle:

Yes. There was a request by the Victims Alliance to include the amendment. Due to the nature of harassment, the person against whom the offence was committed may not have been known to the perpetrator, and the person may not want his or her address disclosed in the documentation. The perpetrator may not have known the person's address and may just have developed the obsession online, so disclosure of the dwelling address could put the person in greater danger. The definitions in the section are taken from the Domestic Violence Act 2018. The Rape Crisis Network of Ireland, RCNI, has stated:

This amendment to the existing Section 13 [...] as initiated sets out protections for anyone seeking an order under this Section who is afraid of disclosing their whereabouts because they are fearful about their safety and that of their dependants, and also, sets out a procedure to be followed in any case where an order under this Section is needed very urgently.

We are well aware from our work with survivors, including survivors of intimate partner violence, in whose case sexual violence is part of a wider pattern of domestic abuse, that harassment behaviours including image based sexual violence online, are extremely common and also very harmful [...] To counter harassment effectively, urgent action is sometimes needed because of a specific threat or other risk that a potentially devastating course of conduct will be embarked upon whose effects may be difficult, or even impossible, to reverse or mitigate.

Without the amendment, it would be difficult for the person's address not to be disclosed in court proceedings.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Section 10(3) of the Non-Fatal Offences Against the Person Act provides for circumstances where, under prosecution of the section on harassment where a jury returned a verdict of not guilty and a conviction was not made, it was still possible for a judge to issue a barring or distance order. That was not contained within the new provisions to replace the harassment offence. From my reading of the section, the provision appears to stand alone. An order does not necessarily have to follow from a prosecution and can come from an application in its own right. I presume it is still open to a judge to make that part of a sentence or of the outcome of prosecution, or to make an order on foot of an application in its own right. Is that the Minister's understanding of it?

Deputy Helen McEntee:

As the Chairman noted, an order as it stands is dependent on a conviction. This section concerns orders that are not based on a conviction. As I said by mistake in respect of the previous section, it is being proposed to extend the availability of an application to any court in that regard. I am minded to support this section but further work needs to be done to amend the provisions. I would have said that could be done on Report Stage but the indication is it will take longer, into next year. I propose we return to the issue and perhaps address it in a miscellaneous provisions Bill. We will give that commitment. If Deputies are agreeable to developing the matter at a later stage, I propose we delete the provision on Report Stage and deal with it in a miscellaneous provisions Bill. That will take much longer, however, potentially until January or February next year.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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To clarify, no amendment seeks to delete the section but the Minister is minded to bring forward such an amendment on Report Stage.

Deputy Helen McEntee:

Yes, if Deputies are agreeable to that on the basis that I will give a commitment to developing this area. It will take longer than I would like and we would like the Bill to be implemented as soon as possible.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I might advance my own view that it is a useful tool for a court at the moment and it deals with cases where a custodial sentence has not been passed down but where there is a need for some intervention. It is currently available to the Bench to do that and it is often done. It is a very practical measure. I would be a little concerned, therefore, if there was to be a lacuna in the law where it was not available. It should be handled urgently.

Deputy Brendan Howlin:

I thought I had convinced the Minister of the merits of retaining the section. I know there is a difficulty in having a civil remedy in a criminal justice Bill and I think that was the argument being made-----

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The provision, however, is included in section 10 as it stands.

Deputy Helen McEntee:

The orders that are currently in place will still apply. We are talking about orders that are not based on a conviction. There should not be any lacuna.

Deputy Brendan Howlin:

We can discuss the matter again because the provision is not yet being removed. Nevertheless, it is a valuable tool.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I might table my own amendment on the issue on Report Stage. Section 15 will repeal section 10 of the Non-Fatal Offences Against the Person Act, and I am concerned that if it is not replaced by anything-----

Deputy Helen McEntee:

We intend to delete section 15, so the provision will stand. It will still apply but this is something new that-----

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The section will stand alone, with section 10(3) included in any event. Is that correct?

Deputy Helen McEntee:

Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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We can take it away and have that discussion. There will be a possibility on Report Stage of some further investigation if required.

Deputy Helen McEntee:

Not for this Bill. The intention is that Report Stage may be taken next week, and the advice I received in preparing for the Bill suggested that it could not be addressed until early in the new year because it will require substantial work. I am happy to consider putting it into a-----

Deputy Brendan Howlin:

When will the other Bill be published?

Deputy Helen McEntee:

I think it is being drafted. If it is not at the end of this year, it should be early next year, so it will be soon enough.

Deputy Brendan Howlin:

Okay.

Amendment put and declared lost.

Amendment No. 43 not moved.

Deputy Thomas Pringle:

I move amendment No. 44:

In page 9, between lines 19 and 20, to insert the following: “(2) (a) If the Court accepts that in the interests of the safety and welfare of the person against whom the offence was committed that, that person’s constitutional right to privacy and peaceful enjoyment of their dwelling requires that the address of the person against whom the offence was committed be withheld from the court order against the accused, the court may so order that the address of the person against whom the offence was committed shall be that of the District Court Clerk.

(b) An emergency civil restraint order may be made ex partewhere having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so in the interests of justice.

(c) Where an application for an emergency civil restraint order is made ex parte, the application shall be grounded on an affidavit or information sworn by the applicant.

(d) If an emergency civil restraint order is made ex parte, a note of evidence given by the applicant shall be prepared forthwith—
(i) by the judge,

(ii) by the applicant or the applicant’s solicitor and approved by the judge, or

(iii) as otherwise directed by the judge.
(e) A copy of the emergency civil restraint order, affidavit or information sworn underparagraph (c)and note of evidence shall be served on the respondent as soon as practicable.”.

Amendment put and declared lost.

Section 13 agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Not many amendments remain, so we will try to get through them, but if we require a detailed discussion we can return to it at the next meeting.

SECTION 14

Question proposed: "That section 14 be deleted."

Deputy Helen McEntee:

Section 14 of the Bill, as initiated, seeks to legislate for a form of pre-action discovery order known as the Norwich Pharmacal order, which also extends jurisdiction to make orders to the Circuit Court. Concerns have been raised about this section which could have broader implications than what is simply being criminalised in the Bill. The existing section 14 includes communications that are "abusive, threatening, offensive, false, defamatory or an invasion of another person's privacy". This could potentially include communications that fall outside of the scope of the Bill itself. We have consulted on this section and the general consensus is that it is not appropriate for inclusion in the Bill for the reasons I have outlined.

Deputy Brendan Howlin:

This is one of the areas where I have not been particularly convinced by the Minister's argument, and I was convinced on most of the arguments. I think it is good to codify a process that is done anyway with regard to accessing information that is important for a prosecution.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The comments are noted. Is it agreed that section 14 be deleted from the Bill?

Deputy Brendan Howlin:

No, it is not agreed.

Deputy Helen McEntee:

It is my understanding that these orders are available to the applicant in any case. The Garda has highlighted that this can be done anyway. It is still available. That is what we have been told.

Deputy Brendan Howlin:

There is a non-statutory process, but I am trying to make it a statutory process. That is the difference. We can look at it again on Report Stage.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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On that basis-----

Deputy Brendan Howlin:

I am not going to call a division on it.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That is okay. I note the different views on whether section 14 should be deleted from the Bill.

Deputy Pa Daly:

Is Deputy Howlin concerned that the Internet service providers would be completely off the hook on that?

Deputy Brendan Howlin:

This would impose an extra legal requirement on the Internet providers to provide the data. If an anonymous website is saying terrible things and distributing that content, there would be a legal process that is codified in law to get behind that anonymity.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I am mindful of our Covid-19 restrictions and the staff, so I will move on.

Question put and agreed to.

SECTION 15

Question proposed: "That section 15 be deleted."

Deputy Helen McEntee:

I seek the removal of the repeal provisions contained in section 15 of the Bill, as initiated, which sought to repeal section 13 of the Post Office (Amendment) Act 1951. Following consultations with officials in the Department of the Environment, Climate and Communications, it has been agreed with the Department of Justice that the provisions contained in section 15 will not be retained in the Bill. It is now my intention to remove this section completely to allow for the proposed offence of sending threatening or grossly offensive messages to exist in tandem with section 13 of the Post Office (Amendment) Act 1951.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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That addresses the concern I raised. Will section 10 of the Non-Fatal Offences against the Person Act 1997 stay on the statue books?

Deputy Helen McEntee:

Yes.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Is it the intention that it would stay indefinitely or until this Bill is enacted?

Deputy Helen McEntee:

I believe it is to stay indefinitely.

Question put and agreed to.

NEW SECTIONS

Deputy Helen McEntee:

I move amendment No. 45:

In page 10, after line 9, to insert the following: “Amendment of Schedule to Bail Act 1997

16. The Schedule to the Bail Act 1997 is amended by the insertion of the following paragraph after paragraph 41:
“Offence under the Harassment, Harmful Communications and Related Offences Act 2020

42. An offence under section 4 of the Harassment, Harmful Communications and Related Offences Act 2020.”.”.

This amendment is linked to amendments Nos. 15 and 26, which seek to amend the "intimate image" offence provided for in the Bill. This amendment intends to provide for the application of the provisions of the Bail Act 1997, with respect to the offence of distributing or publishing an intimate image without consent and with intent to cause harm, by including the offence in the Schedule of that Act. It is standard with anything where there is a penalty of more than five years that it would be connected.

Amendment agreed to.

Deputy Helen McEntee:

I move amendment No. 46:

In page 10, after line 9, to insert the following: “Amendment of section 10 of Non-Fatal Offences against the Person Act 1997

17.Section 10 of the Non-Fatal Offences against the Person Act 1997 is amended by—
(a ) in subsection (1), the substitution of “communicating with or about him or her” for “communicating with him or her”,

(b) in subsection (3), the substitution of “communicate by any means with or about the other person” for “communicate by any means with the other person”, and

(c) the substitution of the following subsection for subsection (6):
“(6) A person guilty of an offence under this section shall be liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment to a fine or a term of imprisonment not exceeding 10 years, or both.”.”.

Amendment agreed to.

Deputy Helen McEntee:

I move amendment No. 47:

In page 10, after line 9, to insert the following: “Amendment of section 40 of Domestic Violence Act 2018

18.Section 40(5) of the Domestic Violence Act 2018 is amended by—
(a) the insertion, in the definition of “relevant offence”, of the following paragraph after paragraph (a):
“(aa) an offence under section 4 or 5 of the Harassment, Harmful Communications and Related Offences Act 2020,”,
and
(b) in paragraph (g), the substitution of “in paragraph (a), (aa), (b), (c), (d), (e) or (f)”for “paragraphs (a) to (f)”.”.

Amendment agreed to.

Deputy Helen McEntee:

I move amendment No. 48:

In page 10, after line 9, to insert the following:

“Short title and commencement
19. (1) This Act may be cited as the Harassment, Harmful Communications and Related Offences Act 2020.

(2) This Act shall come into operation on such day or days as the Minister for Justice may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.”

Deputy Brendan Howlin:

I move amendment No. 1 to amendment No. 48:

In the second line of subsection (1), after "2020", to insert "and may also be referred to as Coco’s Law".

I will move this amendment on Report Stage, so I will not require it to be pushed today. I hope the Minister will consider further taking the step of calling it "Coco's Law".

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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Of course. The Deputy may return with that amendment depending on those discussions.

Amendment to amendment, by leave, withdrawn.

Amendment agreed to.

Deputy Thomas Pringle:

I move amendment No. 49:

In page 10, after line 9, to insert the following: “Review of operation of Act

16. The Minister shall, not later than three years after the commencement of this Act, carry out a review of the operation of this Act.”

This is self-explanatory. It should be good practice to have review sections in legislation, so that after a certain length of time there is an examination of how it is operating. It stands to reason but I think it is not going to be accepted.

Deputy Helen McEntee:

I cannot accept it.

Deputy Thomas Pringle:

I did not expect that the Minister would.

Deputy Helen McEntee:

Sorry, I am happy to accept it. It applies to all legislation.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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The Minister has indicated that she is happy to accept amendment No. 49.

Deputy Thomas Pringle:

Is there a doctor in the House?

Deputy Helen McEntee:

Perhaps we should have started with this amendment.

Amendment agreed to.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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On that happy note, we move on to amendment No. 50.

Deputy Helen McEntee:

I move amendment No. 50:

In page 3, to delete lines 7 to 10 and substitute the following: “An Act to amend the law relating to harassment; to provide for offences relating to the recording, distribution or publication of intimate images and to provide for the anonymity of victims of those offences; to provide for an offence involving the distribution, publication or sending of threatening or grossly offensive communication;and for those and other purposes to amend the Non-Fatal Offences against the Person Act 1997, the Bail Act 1997 and the Domestic Violence Act 2018; and to provide for related matters.”.

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.

Photo of James LawlessJames Lawless (Kildare North, Fianna Fail)
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I thank the Minister and the members of the committee.