Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Second Stage
I indicate my complete support for the campaign brought to public attention by Jackie Fox on the part of her daughter, Nicole. I commend Deputy Howlin and his colleagues in the Labour Party on introducing legislation to deal with this matter.
What Senator Rónán Mullen has just said is true. We should not be in a position that we are pushing this through without adequate time to fine-tune it or work out what the small detail actually means. It is a pity that three years after Deputy Howlin introduced this as a Private Member's Bill in Dáil Éireann, we find ourselves, as described here, having to choose between coming back in Christmas week or dealing properly with the amendments to this legislation, which many have submitted. It is not befitting of Seanad Éireann, as a revising Chamber, to be cornered in this way. I fully accept the moral force of getting something done within three years of its introduction and I do not need to be lectured on that by anybody, but I also feel that we should never put ourselves in the position that Dáil Éireann passes something yesterday and it is plonked on our table today, with myriad well-intentioned amendments to it put down. We all know they count for nothing and that any criticism of its text is going to be bulldozed out of the way. Although it is said, to excuse that, that there will be other opportunities to correct, tweak or improve it, we are still left in the position that this Bill should not be considered in such hurried circumstances.
I noted that Senator Mullen had problems with sections 2 and 3. I have a problem with section 4. If one reads it, section 4 makes it an offence to send by any means any grossly offensive communication to another person, with intent to "cause harm". In this context, "harm" includes causing "distress to the other person". This means that sending any letter to any person if, objectively, it is likely to cause that person distress - nothing to do with sex or privacy, just distress - is now to be criminalised. I believe that this is an excessive overreach for what is undoubtedly well-intentioned legislation. The sending of a letter to somebody with grossly offensive material, which I presume is grossly offensive to the person who receives it as such, for example, sending religious comment to a person of the Islamic faith, is an offence if it causes that person distress. This is not something we should just lightly enter into. A judgment was handed down by the Court of Appeal in London recently where the majority said "Freedom only to speak inoffensively is not worth having", which is an interesting quote. I wonder if section 4 of this Bill is too widely cast and I ask the Minister of State to contemplate that point.
Another problem with section 4 is the penalty provided, which is two years' imprisonment. This is in contrast with seven years provided for in section 2. One of the consequences of not thinking this through is that the capacity of the Garda to arrest, search, seize property, and interview people they suspect of having committed an offence under section 4 disappears, because under the Criminal Justice Act 1984 and the categorisation of offences, a serious offence is one that carries a five-year penalty. This is a second point that needs to be brought in.
The last thing I want to say, and I would love to have said a lot more but I do not want to hog time, is about the fundamental moral hypocrisy of the age as described by Dr. Mary Aiken in The Cyber Effect. I launched that book, I read it, and it is a great book.There is a fundamental moral hypocrisy about an entire generation that values privacy so heavily in one way and then demands blanket anonymity in others. Why do people not have to stand over their own opinions? We are not all Wikipedia people. There are occasions where, if someone wants to bring into the public domain his or her views on an individual, a thought, a process or an entire section of society or if he or she wants to be offensive to their beliefs, he or she should at least have to stand up and name himself or herself.
One of the problems goes back to the Pirate Party in Sweden and the idea that youngsters should be encouraged to steal copyrighted music without remunerating the bands or the composers involved. It was considered wrong in some sense to make them accountable. We have a moral vacuum which tries to span an absolute desire for privacy with an absolute desire for anonymity and the two do not work together. I write articles in The Irish Times. It always amuses me that the newspaper publishes letters to the editor in which people profoundly disagree or agree with what it prints and their names appear at the bottom. The same newspaper has online commentary which is done through pseudonyms and I am sorry to say that some of them are Sinn Féin trolls.