Thursday, 17 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
I support Deputy Howlin's amendment because it goes some way to addressing an issue with this section. However, there remains a problem with the section even after this amendment. I would like to hear the Minister of State's response in this regard. It is to do with what constitutes "grossly offensive" communications. The main thrust of the Bill, and the main commentary around it, has rightly focused on image-based sexual abuse. However, nowhere is "grossly offensive" defined in such a way as to limit it to communications of a sexual nature. It is clearly much broader than that.
In fact, this section, as it stands, could have real and damaging implications for freedom of speech because it provides that anyone who sends a "grossly offensive communication" to or about another person with the intent to "cause harm" is guilty of an offence carrying a potential sentence of up to two years in prison. I have two issues with that. First is the fact, as I said, that a "grossly offensive communication" is not defined anywhere in the Bill and is, therefore, left to the interpretation of a judge. Second, "harm" is defined in the Bill to include where a communication "causes alarm". A judge could decide that someone online calling me or any public representative whatever name under the sun has been grossly offensive and alarming and the person could be sent to prison for it. I receive my fair share of abuse on social media. I do not welcome it but I do not think it should be criminalised. I do not think anyone should go to prison just because he or she caused me alarm.
There is a fundamental issue of freedom of speech here, which is already lacking due to our draconian libel laws. I fear that, as drafted, this section of the Bill hands a weapon to the powerful to constrain the freedom of speech of people criticising them. It is the already powerful, not ordinary people or victims of serious abuse, who will have the knowledge and resources to make use of this section. I welcome amendment No. 15 because it improves the section, but in a relatively limited way. I am interested to hear the Minister of State's response and whether this came up on Committee Stage.