Thursday, 17 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
I thank Deputy Howlin for sponsoring the Bill and pursuing it. It is extremely important and I commend his work on it. I also thank Members throughout the House for their contributions on the Bill as it has worked its way through the Dáil.
Amendments Nos. 1 to 7 all relate to the definition of an intimate image for the purposes of the offences in sections 2 and 3 of the Bill. There was some discussion of this issue on Committee Stage and I appreciate that Deputies are concerned about the implications of the definition proposed in the Bill. Broadly speaking, two concerns are apparent from the proposed amendments. The first relates to the types of images that would come within the ambit of the definition. The intention behind the amendments is to ensure that images that have been altered or doctored, commonly referred to as deep fakes, fall within its scope. I assure the Deputies that very careful consideration was given to this definition during the drafting. The definition refers to any visual representation by any means. The word "representation" with regard to a person also extends to representation of their intimate body parts, of them being nude or of them being engaged in sexual activity. The definition has been drafted in this manner to ensure the entire spectrum of images is covered, which would include a hand drawn image or a digital image either created or altered using modern forms of technology. However, in light of the very obvious concerns raised by Deputies, I am minded to accept amendment No. 5 to include the words "what is, or purports to be" in the definition to ensure there is no confusion. I hope this will allay the concerns raised on this point.
The second issue relates to consent. The amendments proposed by the Deputies have attempted to include reference to informed consent where a detailed definition of consent modelled on what is used for sexual offences under the Criminal Law (Sexual Offences) Act 2017. I respectfully have to disagree that these amendments are either necessary or appropriate. The word "consent" is a readily understood concept in most of the criminal offences on this Statute Book and appears without definition for this reason. There is a very specific definition of consent for the purposes of certain sexual offences due to the nature of those offences and the fact it is quite often the most contentious issue in a prosecution of that nature. The definition as proposed in amendment No. 7 does not appear to make sense in the context of the offences in the Bill, particularly as it refers to the capture of an image rather than the recording of an image as appears in the offence. For this reason it may be unworkable. Amendments Nos. 1 and 2 would complicate matters further by referring to a reasonable expectation of privacy if an image was taken with the consent of the person. The definition is simpler without this. It would be an offence to distribute or publish without consent and it does not matter whether the person consented to the taking of the image. Further, if the image was taken without consent this would fall within the remit of the offence in section 3.
Amendment No. 4 refers to informed consent, which is not further defined and, as such, adds little to the Bill. The Bill does not contain a definition of consent because including such a definition could lead to a complication of what should be a relatively straightforward issue. I am of the view that the amendments are unnecessary and could cause complications in any prosecution under the Bill. For these reasons I cannot accept them. However, I will accept amendment No. 5.