Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I wish to raise a matter. The Minister of State referred to the importance of the Constitution's freedom of speech provisions and the protection of same. I have a concern about the way section 4 is phrased in that it is overly broad. This matter was raised on Second Stage. The section reads:
(1) A person who— (a) by any means—...and
(ii) sends any threatening or grossly offensive communication to another person,
(b) with intent by so distributing, publishing or sending to cause harm, is guilty of an offence.
Harm is defined in subsection (2) as where "a person intends to cause harm where he or she, by his or her acts, intentionally seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person." I can think of a number of examples where, in an entirely lawful way, a person might write a letter or send a communication that qualifies under subparagraph (1)(a)(ii) as being threatening and also satisfies the requirement of harm under paragraph (1)(b), being that it causes alarm. The first one that springs to mind is legal proceedings. Another might be a summons to court, a speeding fine or a warning notice from a local authority. Those are official communications, but what about, from neighbour to neighbour, notifying of an encroachment onto the property of one or, in terms of farming, livestock gets from one field into another and one farmer sends what could be described as a "threatening" letter to another, which is 100% designed to cause alarm and thereby achieve results? There is a notion of comparing that scenario to the reality of what we mean by this Bill in terms of the serious intent of individuals to infringe upon people's enjoyment of life, mental health and so on, but the two are not related.
Perhaps there is something I do not see, but I am concerned at the manner in which subsection (1) is drafted and the definition of "harm" in subsection (2). A perfectly reasonable and lawful, albeit unpleasant, communication between two individuals would satisfy the requirements of the section to commit an offence, which would carry with it, on indictment, a penalty of up to two years in prison. In light of the freedom of speech provisions that the Minister of State mentioned, I identify that there is a possible difficulty in this regard.
Something that the Bill probably does not do, particularly in section 4, is differentiate between the intentional action of an individual to cause gross offence and attack someone by means of an electronic or other communication and a person who might take offence in a particular way. These are two different scenarios. If the section does not distinguish between them, it creates an offence in respect of one that is unreasonable and disproportionate.