Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I thank Senators for their contributions. Amendment No. 1 relates to the definition of an intimate image for the purposes of the offences at sections 2 and 3. A number of amendments on Report Stage in the Dáil yesterday sought to ensure that this definition included images that have been altered or doctored, commonly referred to as deep fakes. While I outlined to Deputies in the Dáil yesterday that I was confident that the original definition did in fact cover such alterations, I did understand their concerns and the concerns raised by others. Therefore, I accepted an amendment to include the words "what is, or purports to be" into paragraph (a) of the definition, to allay those concerns. On that basis, I will not be supporting this amendment, as I believe the matter has been addressed in the Dáil.
Amendment No. 2 seeks to include the words "makes available" into section 2(1), which would mean that it would be a criminal offence to make an intimate image available. There are some concerns about the definition of what this may be and that perhaps the vagueness of it might give rise to certain difficulties in the prosecution of a criminal offence. The lack of clarity is causing problems so, unfortunately, I will be opposing amendment No. 2.
Regarding amendment No. 3, Senators will note that the recording of an intimate image without consent is provided for in section 3. I appreciate that recording an intimate image without consent is a very serious matter and one which can cause harm to the victim of such an offence. I do not consider that it is as serious as distributing or publishing such an image or threatening to do so. Furthermore, proving an intention to cause harm related to the recording of an image would be quite difficult as this type of behaviour is often done for voyeuristic reasons. I therefore feel that its inclusion in section 3 is more appropriate, given the fact that there is no need to prove an intention to cause harm and there is a more proportionate penalty therein.
Regarding amendment No.4, I outlined my position on the retention of images in the Dáil yesterday. I believe that criminalising the retention of intimate images could give rise to serious unintended consequences and this concern was echoed by other Deputies. There are offences to deal with the distribution and publication of intimate images or threatening to do so, and this is considered appropriate. I cannot accept the amendment to provide for the retention of images, in particular where there are no safeguards put in place in respect of this matter.
Regarding keeping the legislation under review, there is a three-year review built into the system. All Bills are kept under constant review but there is a requirement to complete a report, post-enactment, of all Bills passed by the House. We are going to report after one year and a full review will be carried out after three years. The one-year review has been criticised on the basis that it takes time, especially with criminal offences, for the first offences to work their way through the courts system and if there are issues, perhaps they may not arise after one year. For that reason, a report after one year and then a three-year review are required and that should catch any issues. I do not believe there will be.
The word "representation" was deliberately chosen to cover images ordered by any means. The offences are all based on intent or harm and, therefore, the view was taken that it is not too broad, because one will have to show both an intent to harm and to actually cause harm as well. Sufficient protections have been included on that aspect of the Bill.