Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I acknowledge the contribution of Deputy Brendan Howlin and thank him and his colleagues for bringing this Bill before the House for consideration. I believe all Members will agree that the Bill is broadly similar to legislation being drafted in my Department, which has been the subject matter of discussion in the House. I will be the first to admit the process is taking somewhat longer than I would have wished.

I welcome the opportunity to have this debate. This Bill in the name of Deputy Howlin and his colleagues is timely and appropriate. In that regard, it will not be opposed by the Government at this Stage.

Like many Deputies in the House, I have been appalled at some of the stories emerging in the media in recent weeks. I wish to commend the Garda Síochána for successfully apprehending a vile criminal. I acknowledge the concerns that have been expressed inside the House and outside it in the broader community about Internet safety, particularly in the context of that recent case. I acknowledge, of course, that the Internet has changed our lives in many ways for the better. It is important that we state unequivocally that there are negative aspects and that we cannot ignore acting on these.

These are issues with which Governments across the world are grappling. Important work is under way in the EU Commission, led by Commissioner Jourova, whom I had the opportunity of meeting to discuss these issues, among others, late last year. Ultimately, we need to ensure is that we achieve a balance between the right to privacy of an individual on the one hand and the right to freedom of expression. That is the challenge. We have an essential role to play as lawmakers, and so too do the Internet companies, parents and schools. I wish to invite the Internet companies to participate actively in the debate. I acknowledge that they have a leadership responsibility in this issue and they must involve themselves by way of full active engagement in the matter of Internet standards and Internet safety.

In recent days there has been a debate centred on the darker aspects of the Internet and social media, the access children have to the Internet and the activities of criminals on the Internet, in particular where vulnerable children are targets. Some of these issues are relevant to the Bill and some are separate issues. The offences in this Bill may be distinguished from offences such as grooming which are already on the Statute Book. I want to advert to the Chid Trafficking and Pornography Act 1998, as amended by the Criminal Law (Sexual Offences) Act 2017, which contains a number of new offences to combat the exploitation of children.

There are a number of initiatives under way across government to promote Internet safety, in particular where children are concerned. My own Department operates the Office for Internet Safety, OIS, which provides information and guidance, including a series of booklets aimed at parents with information on various aspects of Internet safety, including filtering, using social networking sites and cyberbullying. If members of the public becomes aware of activity that might be regarded as bullying activity on the Internet, which they suspect may be Illegal, they can report it confidentially to hotline.iewhich is operated by the Internet Service Providers Association of Ireland with oversight by the OIS in my Department.

My colleague, the Minister, Deputy Naughten, who will speak later in this debate, is examining proposals for the creation of a digital safety commissioner, as referred to by Deputy Howlin. This area is complex and multifaceted and involves a number of Government Departments. Work is under way in Government to introduce a clearer policy framework to better inform the public and, of course, this House on the structures and laws in place. An open policy forum on digital safety will take place in March to involve the views of stakeholders. In the meantime, I am working with the Ministers, Deputies Naughten, Zappone and Bruton, to develop a more unified whole-of-government policy across this issue and this legislation plays an important role in that regard.

Turning to the Bill itself, it is broadly based on many of the recommendations made by the Law Reform Commission, LRC, in its 2018 report on harmful communications and digital safety. The LRC report is a significant piece of work in the area of online harm, and the changes that are needed to ensure our laws and system are equipped to deal with this growing problem. I commend the LRC for producing this valuable piece of work.

While I am entirely in support of the intention and spirit behind this Private Member's Bill, I must point out that there are certain drafting issues in the Bill as published last May. Initial observations by officials in my Department, as well as the Office of the Attorney General, indicate that a significant number of amendments would be required to get the Bill to a point where it could be safely enacted. I will briefly mention some of my key concerns, but I want to acknowledge the base this Bill is and will have in terms of further engagement.

Section 4 of the Bill appears to be an amalgam of the LRC's approach to the offence of distributing intimate images. The LRC proposes two new offences. The first is distributing an intimate image with Intent to cause harm. This would include behaviours commonly referred to as "revenge porn". The second is the taking or distributing of an intimate image without the consent of the other person. This targets behaviour such as "upskirting" or "downblousing" and does not include the element of intent to cause harm but rather it is an offence in the strict liability code.

It would appear that the penalty structure set out in section 4(1) of the Bill is intended to accommodate the behaviours envisaged in sections 4 and 5 of the LRC proposals as outlined above. I have concerns there may be procedural difficulties with the prosecution of this offence. However, we can deal with these issues on Committee Stage. Section 4(3) provides for an aggravating factor for the purpose of sentencing where the complainant has certain disability such as to restrict his or her capacity to guard against harm. From a policy point of view, clarification should be sought as to why this provision is considered appropriate or necessary. The vulnerability of a particular victim is a factor which a court normally takes into account in sentencing an offender. It is also queried as to why it is limited to this section of the Bill and not others, possibly suggesting that vulnerability linked to disability would not be an aggravating factor for other offences in the Bill.

Section 4(4) provides that an offence under this section is a sexual offence for the purpose of the Sex Offenders Act 2001. Given the range of behaviours that can be covered under section 4 of these proposals, it would appear to me that less serious adolescent behaviour could result in a young person being subject to the Sex Offenders Act, which might not always be appropriate. Section 7 provides for jurisdictional matters. Pursuant to Article 29.8 of the Constitution, Ireland may only exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law. As this Bill attempts to provide for jurisdiction for offences committed outside the State regardless of whether the perpetrator is a citizen or resident of Ireland, this may raise constitutional issues unless Deputy Howlin can provide some basis in international law for this provision.

These are my initial comments on the Bill. I will write to the Deputy Howlin setting out my full list of concerns. In principle, I believe our intentions are broadly similar and that is why I do not intend to oppose the Bill at this Stage. I wish to assure Deputy Howlin of constructive engagement in this matter with both myself and my Department. As the Bill deals with serious criminal offences, I am sure the Deputy will agree it must be carefully constructed, and constructed in a most accurate way so as to avoid constitutional or any adverse consequential issues that might not appear immediately apparent or obvious. I refer also to issues of interpretation or conflicts with other legislation in the criminal justice area.

I acknowledge the importance of this debate and of the legislation before us. There is much more work to be done in this area before the Bill can proceed further. I am sure Deputy Howlin will reflect on these issues and I thank him for bringing forward the legislation. I agree with Deputy Jan O'Sullivan's comments not only on the importance of the legislation but also on a certain urgency involved having regard to apparent vacuums in the law.

I wish to acknowledge what we are debating. We can bring the matter on to the next Stage and in the spirit in which the Bill was tabled by Deputy Howlin, I wish to assure members of his party of constructive engagement with my Department and Government. We will also be monitoring and indeed actively engaging in the work of other ministerial colleagues, in particular, the Minister, Deputy Naughten. There will be a role for the Minister for Children and Youth Affairs, Deputy Zappone, and for the Minister for Education and Skills, Deputy Bruton. However, from a criminal justice point of view, I am happy to accept the spirt of this Bill. There are some issues regarding the letter that we can deal with in due course.

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