Seanad debates

Friday, 18 December 2020

Harassment, Harmful Communications and Related Offences Bill 2017: Second Stage


10:00 am

Photo of James BrowneJames Browne (Wexford, Fianna Fail) | Oireachtas source

I am delighted to introduce the Harassment, Harmful Communications and Related Offences Bill to the House today, following its approval by the Dáil yesterday. As Senators will be aware, this Bill is a Private Members' Bill, sponsored by Deputy Brendan Howlin, which was heavily based on recommendations made by the Law Reform Commission in its 2016 Report on Harmful Communications and Digital Safety. The report identified areas of the law in relation to harmful communications online that needed to be strengthened to ensure that people are adequately protected. I thank Deputy Howlin for introducing this important Bill and for working with the Minister for Justice, Deputy McEntee, and me to get it to this point.

I also thank Senators for agreeing to take all Stages of this Bill in the House today. I think we all agree that the issues addressed in the Bill are significant and I welcome the support it has received from across the Oireachtas. I understand and appreciate that Senators would probably have preferred more time to consider the issues involved. However, I think there is an appetite to get this done before the end of the year, and we can all be happy that we will have done work of real value today, when the Bill completes its passage.

The Bill was amended significantly on Committee Stage in the Dáil to reflect the policy aims of the legislation and to strengthen its provisions. As a result of these structural changes, my Department has published a new explanatory memorandum to the Bill on the Oireachtas website. The new memorandum recognises the role of victims in campaigning for a change in the law, particularly Ms Jackie Fox, who tragically lost her daughter Nicole to suicide. I thank Ms Fox for sharing her story and for keeping these issues in the spotlight.

In today's world, more and more of our interactions and communications are taking place online. While this has been a largely positive advancement which enables us to communicate instantly with people anywhere in the world, it can also mean that people who wish to do us harm have a readily accessible platform from which to do so. This Bill will strengthen our response to harm perpetrated online, as well as offline, to ensure that individuals can be punished in a proportionate manner.

Senators will recall the recent leak of intimate images that was reported widely in the media. While I cannot comment on any individual cases, there was obvious concern that the once-off sharing of intimate images without consent is not a criminal offence in Ireland. The Bill addresses this by creating two offences to deal with this behaviour. The first will address the distribution or publication of an intimate image without consent with intent to cause harm to the victim. It will also be an offence to threaten to distribute or publish such an image. The second offence is a strict liability offence to target the recording, distribution or publication of an intimate image without consent, with no requirement to prove an intention to cause harm. These two offences will mean that this type of activity will no longer go unpunished.

The Bill will also deal with other areas of harmful communications by creating a new offence of distributing, publishing or sending a threatening or grossly offensive communication with intent to cause harm and will extend the current offence of harassment to deal with communications about a person, as well as communications to a person. I am confident that these offences will act as a real deterrent and will make people think twice about the type of behaviour they are engaging in online.

It must be acknowledged that while this Bill is a positive development, the criminal law is not the only way to tackle the spread of harmful communications. Education and awareness-raising, particularly among young people, is also crucial to ensuring the Internet is a safer place for all users. The Government's action plan for online safety addresses a number of areas for improvement and work is ongoing to that end.

Turning to the detail of the Bill, I would like to outline its key provisions. Section 1 defines the key terms used in the Bill, the most notable being the term “intimate image”, which is used in the offences created under sections 2 and 3. This definition was subject to much debate in the Dáil and it has been amended, taking account of some of the concerns raised by Deputies.It does not require that the person was the subject of the original image, so long as they are represented in the image in some way. The term "harm" is defined as including psychological harm. This is extremely important, as much of the impact of the offences in the Bill will be psychological. The word "communication" is not defined. This is to ensure that it does not limit the wide interpretation of this concept to date in the courts.

Section 2 creates a new offence to deal with the publication or distribution of an intimate image without consent with intent to cause harm, or being reckless as to whether harm is caused. The person who distributes or publishes the intimate image must have intended, or been reckless as to whether these acts would seriously interfere with the peace and privacy of the other person or cause the other person harm, alarm or distress. This will be considered in light of whether a reasonable person would think that the behaviour would interfere with the peace and privacy of the other person, or cause him or her harm, alarm or distress. Threatening to distribute or publish such an intimate image is also an offence. The maximum penalties for this offence for conviction on indictment are up to seven years' imprisonment and-or an unlimited fine.

Section 3 is the second offence to be introduced in relation to intimate images. It provides for an offence of recording, distributing or publishing an intimate image without consent. This is a strict liability offence, as the person who records, distributes or publishes an intimate image without consent does not need to have a requisite intention to cause harm. It will be sufficient that the taking, recording or distribution of the intimate image seriously interfered with the other person's peace and privacy or caused him or her harm, alarm or distress. This is aimed at voyeuristic behaviour where an individual may not even know the victim. The maximum penalty for this offence on summary conviction is 12 months' imprisonment and-or a €5,000 fine. Senators will appreciate that strict liability offences do not attract the same penalties as those where there is a clear intention to cause harm.

The Law Reform Commission, in its 2016 report, recognised the harmful effect that one single message may have on the person who receives it. While we have strong laws in respect of persistent communication, there should be an offence to tackle once-off harmful messages through the use of any platform. Therefore, section 4 provides for an offence of distributing, publishing or sending a threatening or grossly offensive communication. This offence applies to all forms of messages or communications. It will be an offence to send a threatening or grossly offensive message where the person who is sending the message or communication intends to cause harm to the person who is the recipient of the message. This offence is intended to deal with the most harmful forms or messages and communications, both online and offline, where there is a clear intent to cause harm. This offence is narrow in scope to ensure there is no undue interference in freedom of speech and to avoid criminalising adverse comment, for example. The maximum penalties for this offence for conviction on indictment are two years' imprisonment and-or an unlimited fine.

Section 5 provides for the anonymity of victims of an offence under sections 2 or 3 of the Bill, that is, the two offences that deal with the recording, distribution or publication of intimate images without consent. Section 5(1) creates an offence where any person distributes or publishes any information that may lead to the identification of the victim of the offences.

Under section 5(2), a judge may, if it is in the interests of justice to do so, direct that certain information may be published or broadcast in such manner and subject to such conditions, if any, as he or she specifies in the direction. I brought forward an amendment to this section on Report Stage yesterday to make it an explicit requirement on a judge to take into account the views of the victim in such a direction. It shall be an offence if any person publishes or broadcasts any information in contravention of a direction under section 5(2).

The maximum penalties for conviction on indictment for an offence under this section are up to three years' imprisonment and-or an unlimited fine. It shall be a defence for a person to prove that he or she was not aware that the material published or broadcast was material that was subject to the provisions of this section or a direction under this section.

Section 6 provides for the liability of corporate bodies as well as officers and directors of corporate bodies in respect of the offences under the Bill.

Section 7 relates to summary prosecutions. There is normally a six-month time limit for the bringing of summary proceedings under the Petty Sessions (Ireland) Act 1851. This has been extended to two years for summary offences under this Bill to ensure that there is sufficient time for evidence gathering, particularly where mutual legal assistance may be required if data is held outside the State.

Section 8 is an important safeguard in respect of prosecutions against children under the age of 17 years. The consent of the Office of the Director of Public Prosecutions, DPP, must be given prior to proceedings for an offence under the Bill where the alleged offender is under 17 years of age.

Section 9 amends the Schedule to the Bail Act 1997 to include the offence of distributing, publishing, or threatening to distribute or publish, an intimate image without consent with intent to cause harm, or being reckless as to whether harm is caused, under section 2 of this Bill. This will mean that a member of An Garda Síochána may make an objection to bail under the 1997 Act in the case of a person who is remanded in custody for an offence under section 2 of this Bill.

Section 10 amends the Non-Fatal Offences against the Person Act 1997 to strengthen the offence of harassment under that Act. The amendment will provide that harassment may be as a result of persistent communication with a person but also persistent communication about a person, sometimes referred to as indirect harassment. The maximum penalty for harassment has been increased from seven years' imprisonment to ten years' imprisonment to reflect the serious nature of harassment and the wide range of behaviours it represents.

Section 11 amends section 40 of the Domestic Violence Act 2018 to include the offences at sections 2 and 3 of the Bill as "relevant offences" for the purposes of that section. Section 40 provides that where a "relevant offence" is committed against a "relevant person", it shall be an aggravating factor for the purposes of sentencing for that offence. This means that it will be an aggravating factor for the purposes of sentencing a person for an offence under section 2 or section 3 of the Bill if that person is the spouse or civil partner of the victim, or is, or was, in an intimate relationship with the victim.

Section 12 provides that a review of the operation of the Act must be carried out within three years of the date from which it was commenced.

Section 13 provides for the Short Title and commencement of the Act and is a standard provision.

We can all agree that this Short Bill represents a big step forward in terms of harassment and harmful communications, and I am hopeful that the support in the Dáil for the Bill will be echoed in this Chamber. The Minister for Justice, Deputy McEntee, and I are both strongly supportive of this Bill. Deputy Howlin made the point yesterday that this is an evolving area and it is an issue that we are likely to have to come back to in the not too distant future, to address new technologies and trends in online activity. I could not agree more on this point. That being said, I am looking forward to a good debate on this measure here today and I commend the Bill to the House.


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