Private Member’s Bill – Harassment, Harmful Communications and Related Offences Bill 2017

 

Second Stage Speech – Dáil Éireann

Wednesday 31 January 2018

 

Speech by Minister for Justice and Equality,

Mr. Charlie Flanagan T.D.

 

 

A Cheann Chomhairle,

 

I would like to thank Deputy Howlin for bringing this Bill before the House today for consideration.

 

The Bill is broadly similar to legislation being drafted within my own Department at present, though I appreciate that process is taking longer than I would have wished.  I welcome the opportunity to have this debate.

 

Like many Deputies in this House, I have been appalled at some of the stories emerging in the media in recent weeks.  I commend the Gardaí for successfully apprehending a vile criminal and I acknowledge the concerns that have been expressed about Internet safety, particularly in the context of that recent case.  While the internet has changed our lives in many ways for the better, we cannot ignore the negative aspects.  These are issues which all Governments are grappling with and, indeed, important work is underway in the EU Commission, led by Commissioner Jourova. Ultimately, achieving a balance between an individual’s right to privacy and the right to freedom of expression is the challenge.  As law makers we have an essential role to play, so too Internet companies, parents, schools, and so forth.

 

In recent days there has been a debate centred on the darker aspects of the Internet, of social media, of the kind of access children have to the Internet, of the activities of criminals on the Internet, in particular, where vulnerable children are targeted.  Some of these issues are relevant to this Bill, some are separate issues. 

 

The offences in this Bill may be distinguished from offences such as grooming which are already on the statute book.  The Child Trafficking and Pornography Act 1998, as amended by the Criminal Law (Sexual Offences) Act 2017, contains a number of new offences to combat the exploitation of children.

 

There are a number of initiatives underway across government to promote Internet safety in particular where children are concerned.  My own Department operates the Office for Internet Safety (OIS) which provides information and guidance, including a series of booklets aimed at parents with information on various aspects of internet safety including filtering, using social networking sites and cyberbullying. If a member of the public becomes aware of bullying activity on the internet which they suspect may be illegal, they can report it confidentially to Hotline.ie which is operated by the Internet Service Providers Association of Ireland with oversight by the Office for Internet Safety (OIS) in my Department.

 

My colleague, Minister Naughten, is examining proposals for the creation of a Digital Safety Commissioner. 

 

As I’ve said this area is complex and multifaceted and involves a number of departments.  Work is underway in Government to introduce a clearer policy framework and to better inform the public and, of course, this House, on the structures and laws in place.  An open policy forum on digital safety will take place in March to involve the views of stakeholders.  In the meantime, I am working with Ministers Naughten, Zappone and Bruton to develop a more unified whole of government policy.

 

Turning to the Bill itself, it is broadly based on many of the recommendations made by the Law Reform Commission (LRC) in their 2016 report on Harmful Communications and Digital Safety. The LRC report is a significant piece of work in the area of online harm, and the changes that are needed to ensure our laws and systems are equipped to deal with this growing problem.  I commend the LRC for producing this valuable piece of work and I note the assistance it received through extensive consultations.  When that report was published my predecessor brought proposals to Cabinet to introduce legislation and, as I’ve said, work is underway.

 

While I am entirely in support of the intention and spirit behind the Deputy’s Private Member’s Bill, I must point out that there are certain drafting issues in this Bill as published last May. Initial observations by officials in my Department as well as the Office of the Attorney General indicate that a significant number of amendments would be required to get this Bill to a point where it could be safely enacted.  I will briefly mention some of my key concerns.

 

Section 4 of the Bill appears to be an amalgam of the LRC’s approach to the offence of distributing intimate images. The LRC proposes two new offences.  The first is distributing an intimate image with intent to cause harm.  This would include behaviours commonly referred to as “revenge porn”. The second is the taking or distributing of an intimate image without the other person’s consent.  This targets behaviour such as “upskirting” or “downblousing” and does not include the element of ‘intent to cause harm’ but rather it is a strict liability offence.

 

It would appear that the penalty structure set out in section 4(1) of the Bill under consideration today is intended to accommodate the behaviours envisaged in sections 4 and 5 of the LRC proposals as outlined above. I would have concerns that that there may be procedural difficulties with the prosecution of this offence at section 4(1), as currently drafted.

 

Subsection (3) of section 4 provides for an aggravating factor for the purpose of sentencing where the complainant has a certain disability such as to restrict his or her capacity to guard against harm.  From a policy point of view, clarification should be sought as to why this provision is considered necessary.   The vulnerability of a particular victim is a factor which a court normally takes into account in sentencing an offender.   It is also queried as to why it is limited to this section of the Bill and not others, possibly suggesting that vulnerability linked to disability would not be an aggravating factor for other offences in the Bill.

 

Subsection (4) of section 4 provides that an offence under this section is a sexual offence for the purpose of the Sex Offenders Act 2001.  Given the range of behaviours that can be covered under section 4 of these proposals, it would appear to me that less serious adolescent behaviour could result in a young person being subject to the Sex Offenders Act, which might not always be appropriate.

 

Section 7 of this Bill provides for jurisdictional matters. Pursuant to Article 29.8 of the Constitution, Ireland may only exercise extra-territorial jurisdiction in accordance with the generally recognised principles of International Law. As this Bill attempts to provide for jurisdiction for offences committed outside the State regardless of whether the perpetrator is a citizen or resident of Ireland, this may raise constitutional issues unless Deputy Howlin can provide some basis in International law for this provision.

 

These are my initial comments on the Bill and I will write to the Deputy setting out my full list of concerns. In principle, I believe our intentions are broadly similar and I do not intend to oppose the Bill at this stage.  As this Bill deals with serious criminal offences, I am sure the Deputy will agree it must be carefully and accurately constructed to avoid constitutional issues, issues with interpretation or conflicts with other legislation.  So I believe there is more work to be done before this Bill proceeds further, and I am sure that Deputy Howlin will reflect on these issues. I thank the Deputy once again for bringing this forward.