Brendan Howlin (Wexford, Labour) | Oireachtas source

I believe the Internet is a public space, and I believe that, as with all public spaces, our people deserve to be protected there just as they would utilising a public park or a public roadway. Some will disagree. Some see the Internet as a great libertarian or anarchist play space but the view of the Labour Party is that this space is truly important, is growing in importance and needs to be regulated.

Back in 2013, my party colleague, Pat Rabbitte, during his time as Minister for Communications, Energy and Natural Resources, set up an independent expert Internet content governance advisory group. It was chaired by Brian O'Neill of the Dublin Institute of Technology, DIT, and the group was asked to report on a range of issues related to online content following a growth in public concern over cyberbullying and related matters.

The report of the group made a series of structural, legislative and administrative recommendations. Included in them was a suggestion the existing offence of sending messages that were grossly offensive, indecent, obscene or menacing be updated to include all new forms of electronic communications, including the new platforms that we all use to communicate nowadays. As the law stands, the offence covers only telephone and text or SMS messages. Obviously, that is hopelessly out of line with the normal daily practices of all of us. That the law in this area has not changed since the invention of the text message speaks volumes and is surely reason enough to reflect on whether our law is up to date or in need of urgent refurbishment.

Last year the Law Reform Commission reported on harmful communications and digital safety. It confirmed that the criminal law applied to some harmful communications but that there were significant gaps, in particular in respect of newer forms of communication. It proposed that the current law, together with new measures to tackle new forms of harmful communications, be consolidated into a single easily understood statute. That is the core of the Labour Party Bill which is to consolidate and reform the criminal law on harmful communications. This involves replacing certain provisions of the Post Office (Amendment) Act 1951 relating to electronic communications – the fact that we have not changed the law since 1951 also speaks volumes - and the Non-Fatal Offences Against the Person Act 1997 relating to harassment.

The Law Reform Commission's report was in two parts, the second of which proposed a system of oversight and regulation under a new regulator to be called the digital safety commissioner. I had understood creating a new statutory agency was outside the remit of a Dáil Private Members' Bill, but I gather other colleagues have been more successful in having such measures pass the scrutiny of others and have tabled such proposals. Had I known that, I would have included such provisions in this Bill. If it is passed on Second Stage, we should include the measures on Committee Stage because it is an important component of the suite of recommendations made by the Law Reform Commission. The Bill seeks to implement the thrust of the commission's proposals on the reform of the criminal law in this area. We produced a draft Bill last year. I express my gratitude to the many NGOs and experts who provided comments, suggestions and submissions on it.

The Bill has five key features. First, it adopts the broadest possible definition of "communications" to capture the communication of information by any means. It includes the communication of information generated, processed, transmitted, received, recorded, stored or displayed by electronic means or in any electronic form.

Second, the Bill sets out an updated offence of harassment. Our new version provides that a person who, intentionally or recklessly and without lawful authority or reasonable excuse, engages in harassment will be guilty of an offence if he or she acts in specified ways to seriously interfere with the peace and privacy of a citizen or cause him or her alarm, distress or harm. The actions specified are: if a person persistently follows, watches, pesters or besets another person; persistently communicates with another person, or persistently communicates with a third person about another. The punishment is a class A fine or imprisonment for 12 months or, on conviction on indictment, in the case of a more serious offence, a fine or a maximum term of imprisonment of seven years.

Third, the Bill allows for stalking to count as an aggravating factor in sentencing and to be so regarded by a judge. In other words, if the conduct of the defendant seriously interfered with the victim's peace and privacy and caused him or her alarm, harm or distress, the court may take that fact into account as an aggravating factor. If the defendant and the victim were in an intimate relationship, in the course of which an offence was committed, that is to say, the defendant made use of personal information on the victim or of an electronic device or software to monitor, observe, listen to or make a recording of the victim or his or her movements, activities and communications without his or her knowledge and consent, again the court may take that fact into account as an aggravating factor.

Fourth, the Bill creates a new of offence of distributing an intimate image without consent. This is what is commonly referred to as revenge porn. It occurs where a couple are in an intimate relationship and one of the parties uses intimate photographs and distributes them with the objective of causing harm or damage or hurt to the other. A person who takes, distributes or publishes an intimate image of another without consent, or threatens to do so – I am afraid that is often what arises in many of the cases about which we hear - and in doing so causes serious harm to the peace and privacy of the other or causes him or her alarm, distress or harm is guilty of an offence and liable, on summary conviction, to a class A fine or imprisonment for six months or both.

The Bill deals with prohibited messages. It provides that a person who distributes or publishes a threatening, false, indecent or obscene message to or about another is guilty of an offence. Again, it is limited to situations where the action is taken with intent to cause alarm or distress or recklessly or persistently undertaken. Under our proposal, the offence will be punishable, on summary conviction, by a class A fine or imprisonment for 12 months or both and, on conviction on indictment, by an unlimited fine or imprisonment of up to seven years. The provision will replace section 13 of the Post Office (Amendment) Act 1951.

These are the main provisions in the Bill. I have made it clear that we believe these proposals are proportionate to the real harm caused and danger posed by people who believe they can act with such reckless disregard for the well-being of others. We firmly believe these safeguards are required. I do not intend to list all of the other elements of the Bill, but some are worth noting. In the case of children, the Bill states criminal proceedings against someone under the age of 17 years may not be taken, except with the consent of the Director of Public Prosecutions. This is a safeguard against prosecuting children, although, in some instances, it might be merited. No one is seeking to unfairly punish children. A measure is included to ensure only the most serious of crimes committed by them will be subject to criminal proceedings. As a further protection for victims, the Bill provides for the protection of their identity. This provision has been modelled broadly on reporting restrictions in the Criminal Law (Rape) Act. Importantly, the Bill makes it clear that it cannot be interpreted as altering the law so as to prohibit or restrict the exercise of constitutional rights of assembly, peaceful picketing and so on.

My time is up. I hope Members will address these important issues and that the Bill will be passed.

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