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.