Thomas Byrne (Fianna Fail) | Oireachtas source

I am glad to speak on the legislation introduced by Senator Higgins, into which she has put considerable work. That has been based partly on her own experiences, which seem to have been abhorrent and worthy of condemnation. I understand they are the subject of a Garda investigation, which is as it should be. I hope prosecutions will result for some of the people under our existing law. This is a very tricky area because a great deal of harm is being done by cyberbullying. As Senator Bacik outlined, our legislation predates the whole cyber scene and there is no doubt that some laws need to be updated.

We support the Bill in terms of the broad brush. The Bill should pass on Second Stage but we have issues with some of the sections. If the Bill were to reach Committee Stage, there would have to be significant revisions. Section 3 is a good section which deals with inciting or encouraging people to commit suicide. I would draft it slightly differently by making those very specific offences rather than including them as part of the definition of "harmful". It would make for stronger legislation. There is no question that the section is necessary in light of the crisis in relation to suicide and self-harm and the new phenomenon of revenge porn. Certainly, I will be putting down amendments on Committee Stage to improve upon the excellent intentions behind the section and to make it even stronger. I agree wholeheartedly with the aim that is sought.

Section 4 is based on very worthy intentions, but, as I have said to Senator Higgins, it is extremely broad. It goes much further than section 10 of the Non-Fatal Offences Against the Person Act - upon which, I believe, it is based - which includes a proviso whereby the complained-of conduct must be such that a reasonable person would believe it was going to cause alarm, distress or harm to the person concerned. As drafted, however, section 4 of this Bill provides that anything said more than once online or electronically which the other person considers to be alarming, distress-causing or harmful would constitute an offence. There must be serious problems with that. Notwithstanding Senator Higgins's good intentions, one might end up making a provision in law that is much broader than it needs to be. For a start, there should be an exemption for the expression of political views, even though one might not assume it was needed. If someone is expressing political views, a politician should not have any comeback. If it is personalised, in the way some of the dreadful things said to Senator Higgins were, that is a totally different thing and nothing to do with politics. I am not trying to equate those issues. In one of the US statutes that the Senator mentioned, there was an exemption in Maryland for political views. Maryland has attempted to ban the infliction of serious emotional distress, but the ACLU has expressed serious doubts as to its constitutionality under the First Amendment to the US Constitution. Similarly, a statute in Albany in New York State which sought to ban annoying communications was struck down by the Court of Appeals in New York State on First Amendment freedom of speech grounds. It highlights the fact that there is a serious problem to be addressed, which is cyberbullying that is causing harm, upset, suffering and distress, but there is also a serious right that we cherish, and that is the right to free speech.

In some cases, one cannot argue with a right to offend. We all said "Je suis Charlie," which meant that we believed Charlie Hebdohad the right to offend. While that newspaper was not an electronic communication, there is no doubt that it caused distress to the Muslim community. As a believer in a Christian God, it would cause distress to me to see someone's religion treated like that. I am not in any way equating it with what Senator Higgins went through, but it is clear that it caused huge distress to some. Nevertheless, we upheld absolutely the right of the newspaper to say things that were insulting and offensive. I would not have done it myself, and it is unlikely that anyone here would have printed something like that out of respect for the religion of others, but the world said at the time that people who wanted to could do so.

My difficulty with the section is its subjective nature. It seems to depend on what another person considers to be alarming, harmful or a cause of distress. There should be something about what would be considered harmful by a reasonable person or to require that actual harm be caused. Senator Bacik spoke about doubts around section 10 of the Non-Fatal Offences Against the Person Act. I am not criticising her and I have not looked at the report of the Law Reform Commission, but I ask whether there have been difficulties with juries or judges convicting people under section 10 which now have to be addressed.