Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
Section 2 is a relatively measured section, but I still think there are issues in terms of the manner in which it was drafted. I raise the same issues that I did in respect of the definition section, that there may be scope, in particular in subsection 2(a), for example, to overly broadly create an offence.Subsection (2) states:
For the purposes of subsection (1), [which deals with the offence of distributing, publishing or threatening to distribute an intimate image] a person causes harm to another person where—
(a) he or she, by his or her acts, intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person ...".
The small concern I have about it is that it should not be a criminal offence to cause distress or alarm. That could be done in a perfectly lawful way. It is the manner in which it is done that should be criminalised. It is the intention underpinning it that needs to be criminalised. There is definitely an interpretation of that section with reference to the words “intentionally or recklessly” which, arguably, covers that base but I wonder if the absence of a comma there could suggest at a later date that somebody charged with this offence under section 2 could use the wording to bend the way the section was intended. I understand from where Senator Ruane is coming with these amendments but I do not agree with her on this. She said they are small changes but they would make a substantial difference to the way the section would operate. The word "seriously" would be removed from subsection (2)(a) and the word "and" would be changed to the word "or" in subsection (1)(a). That means the offence of distributing, publishing or threatening to distribute or publish an intimate image either without the person’s consent or with the intent to cause harm would be an offence if the amendment were accepted, which would mean doing it without the consent in and of itself would be an offence. I do not have a difficulty with that but I have a difficulty with the maximum sentence for that being seven years imprisonment. That puts it beyond the proportionality measure. I do not have a difficulty with creating an offence of distributing, publishing or threatening to distribute an image without the person’s consent; that is a serious breach of ordinary civil behaviour. We are criminalising it in this section and I have no difficulty with that.
Amendment No. 5 proposes "and" would be changed to "or" and would make doing that without the person’s consent in and of itself an offence. Subsection (3)(b) provides that a person who does that would be liable to seven years imprisonment. I think fault would be found with that by the superior courts in terms of the proportionality of the offence with the penalty that is provided for it. A similar issue arises in respect of amendment No. 7, which proposes changing the word "and" to the word "or". That would create an either-or dichotomy which would allow a prosecutor who was less sensitive to the balancing of these things to create a small offence out of something that in and of itself should be an offence, which I do not dispute, but the person would then be subject to a very substantial penalty. That is the difficulty I have with the amendments, notwithstanding from where the Senator was coming in tabling them.