Lorraine Higgins (Labour) | Oireachtas source

I am delighted this issue is now in the political consciousness after a long time in the public consciousness. Before I go into the sections of the Bill I would like to thank my Seanad colleagues, Senators Ivana Bacik and John Whelan, for supporting my endeavours and for signing the Bill which I will now explain to the House.

As previously stated, the purpose of the Bill is to protect against and mitigate harm caused to individuals by all or any digital communications and to provide such individuals with a means of redress for any such offending behaviours directed at them. Section 1 refers to the name of the proposed Act: Harmful and Malicious Electronic Communications Bill 2015. Section 2 provides definitions of “electronic communications”, “explicit content” and “shares”.

Part 2 of the Bill encompasses Section 3(1), which provides that a person who, without lawful authority or reasonable excuse, intentionally or recklessly shares a harmful electronic communication shall be guilty of an offence. The words “without lawful authority or reasonable excuse” provide an out for people who might have lawful authority to use certain words and descriptions, for instance Ultimate Fighting Championship, UFC, fighters who might use that kind of language as a competitive tactic. “Shares” denotes the breadth of ways in which the communication can be disseminated and is preferable to the word "sends".Section 3(2)(a) provides that for the purposes of this section, an electronic communication shall be considered harmful where it incites or encourages another to commit suicide. This provision is self-explanatory and I have included it in the Bill to respond to three high profile suicides of teenagers in recent years. Omitting this provision would have meant that, as legislators, we had learned nothing about protecting our young and most vulnerable online.

Section 3(2)(b), which refers to inciting or encouraging another to cause serious harm to himself or herself, covers all threats and abuse which culminate in serious harm to the person in question.

Section 3(2)(c) protects against the growing phenomenon of revenge pornography. I have included the words "the other" as opposed to "another" so as not to criminalise the use of pornography. Conviction under this section leaves an individual open to a fine not exceeding €5,000, a term of 12 months in prison or both. The level of penalty will be at the discretion of a judge who will decide if mitigating factors apply after considering all the circumstances of the alleged offence.

Section 4(1) provides that a person who, without lawful excuse, persistently shares malicious communications regarding another shall be guilty of an offence. This subsection refers to the persistent sharing of malicious communications which means there must be more than one instance of cyber abuse.

Section 4(2) provides that for the purposes of this section, an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to another person. For instance, being drunk or stating that someone else was using one's telephone or computer may still be deemed reckless, particularly where the offence requires that the behaviour be persistent. Both offences under section 4 require the victim, namely, the person being "the other", to give evidence of harm. This is preferable to the use of the word "another" in respect of this offence as this would result in private communications about a third party being criminalised if brought to the attention of An Garda Síochána. Again, upon conviction, a defendant would be subject to the jurisdiction of the District Court and he or she would be open to a fine not exceeding €5,000, a term of 12 months in prison or both.

Part 3 refers to jurisdiction and procedure. This is most important as it provides some scope for a judge to depart from the penalties provided for in sections 3 and 4. This will be especially important for children as it means they will not be criminalised, even in cases where the defendant has reached the age of criminal responsibility.

Section 5(1) refers to a number of reliefs available to the court. This gives the court leeway to put a stop to the offending behaviour, even in instances where proofs may not be satisfied. Paragraphs (a)(b) and (c) are self-explanatory and the benefits of the relevant provisions obvious. Subsections (5) and (6) provide that an accused who may not have been found guilty of an offence under sections 3 or 4 may be subject to an ancillary order which, if broken, would constitute an offence.

These are the parameters of the Bill. Prior to its enactment, it is vital that an awareness and education campaign is rolled out nationally and a specialised unit of An Garda Síochána is trained to deal with issues that may be forthcoming.

This is an important Bill which has the potential, in time, to become seminal legislation. By enacting it, we will join countries such as New Zealand and the United Kingdom and certain US states which have enacted similar legislation. These first world countries and modern democracies are leaders in international best practice in this area.

The purpose of the Bill is not to curb freedom of speech and the Constitution, the highest law in the land, already provides freedom of speech safeguards. As a qualified barrister with almost ten years' experience, I fully understand this. As someone who also speaks her mind inside and outside the Chamber, I fully support freedom of speech and depend daily on this basic principle. The purpose of the Bill is to curb abuse and threats in our online world. It is an Internet safety Bill which is designed to protect children who may cry when they look at their computer screen, whose esteem is damaged and who have become withdrawn and no longer want to go to school. It is also about their parents who feel powerless to help and protect them and the need to restore decency to our online debates and engagement. Who could possibly be against that? For these reasons, I commend it to the House.