Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I have great sympathy with the proposal Senator Ruane has put forward. I know she has recognised that there is a certain reality to the proposal being put but the definition of these offences is a very difficult issue to grapple with and is technical, and the notion that one has to cover every eventuality is very difficult because one has to imagine offences that have not even been committed yet or things that we may wish to make into offences. The definition is difficult.
Both section 1 itself, in the definition of intimate image, and amendment No. 1 contain, for example, a reference to something that purports to be a person's genitals, buttocks or anal region and in the case of a female, her breasts. That, in itself is problematic. There is similar terminology used in the Child Trafficking and Pornography Act which deals with child pornography and it has had knock-on effects in terms of the prosecution for offences under these matters that go beyond what the Oireachtas ever intended. The significance of that word "purports" is that if anyone, for example, were to draw a doodle - imagine a child in school drawing a doodle of his or her classmate - that that would constitute such an image. That could be done innocently or maliciously. I know that later sections which deal with the distribution of intimate images specifically provide for the necessity that there would be an element of intent,sequelaeor consequences from that.One of the difficulties I have, both with the proposed amendment and the definition, is that an intimate image is currently defined as follows:
“intimate image”, in relation to a person, means any visual representation (including any accompanying sound or document) made by any means including any photographic, film, video or digital representation- (a) of what is, or purports to be the person’s.
I doubt that the framers of the Bill intended for the definition to be quite as wide. I rely entirely on the prosecutorial discretion of our prosecutory authorities be it the Garda at summary level or the Director of Public Prosecutions, DPP, at the indictable level. I am concerned that if we frame the definition too broadly one will bring into the scope of serious criminal matters people who really should not be there, never intended to be there and never had the intention to commit an offence.
Later, I will talk about section 8 and the prosecution of individuals of a certain age. There is a danger of criminalising children in a way that we never intended to. All parties have discussed the provisions of the Bill on Second Stage. Of course we need to deal with people who genuinely intend to cause harm, are causing harm and even those who are unintentionally causing harm. As the Minister of State said when he wrapped up on Second Stage, the message must go out that this is not acceptable. The passing of this legislation will afford teachers, parents and other people who deal with children in a supervisory capacity the opportunity to say, "Do not do that as you are breaking the law and are liable to prosecution". At the same time, I have great sympathy with what Senator Ruane has put forward but we need to consider not having overly broad definitions that end up criminalising people who we never intended to criminalise.