HOWLIN SPEECH AT LAUNCH OF HARASSMENT, HARMFUL COMMUNICATIONS AND RELATED OFFENCES BILL 2017

04 April 2017

Speech by Brendan Howlin, T.D., Leader of the Labour Party

At the launch of the Harassment, Harmful Communications and Related Offences Bill 2017

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Good morning,

Martina and Margaret have spoken eloquently about the problems that we are hoping to resolve with this Bill.

It falls to me to briefly set out how we got here, and what exactly the Bill aims to do.

Before I do so, I want to tackle a criticism that I expect will be levelled at us – that we are trying to police the internet when it should be an area free from state intervention.

Now, I just don’t agree with that.

I believe in the power of the state acting for the people.

I believe the state can, and should, nourish, educate, care for, and most of all protect our people.

I believe the internet is a public space.

And I believe that, as with all public spaces, our people deserve protection there.

Some will disagree – some see the internet as a great libertarian or anarchist play space. 

So be it.

Back in 2013, my party college Pat Rabbitte, during his time as Minister for Communications, set up an independent expert Internet Content Governance Advisory Group.

Chaired by Brian O’Neill of DIT, that group was asked to report on a range of issues related to online content, following a growth in public concern over cyberbullying and related matters.

Their report made a series of structural, legislative and administrative recommendations.

Included in those recommendations was a suggestion that the existing offence of sending messages which are grossly offensive, indecent, obscene or menacing should be updated to include new forms of electronic communications.

As the law stands, the offence covers only phone and text (SMS) messages.

That the law in this area hasn’t changed since the invention of the text message is surely enough reason to reflect on whether our laws are up to date.

Last year, the Law Reform Commission report on Harmful Communications and Digital Safety was published.

They confirmed that the criminal law applies to some harmful communications but that there were gaps, in particular in relation to newer forms of communication.

They proposed that the current law, together with new measures to tackle new forms of harmful communications, could be consolidated into a single piece of legislation.

That is the core purpose of this Bill – to consolidate and reform the criminal law concerning harmful communications.

This involves replacing certain provisions of the Post Office (Amendment) Act 1951 relating to electronic communications, and the Non-Fatal Offences against the Person Act 1997 relating to harassment.

The Law Reform Commission report had two parts, the second of which proposed a system of oversight and regulation under a new online regulator, the Digital Safety Commissioner.

However, creating a new statutory agency is outside the remit of a Dáil Private Member’s Bill.

So, this Bill implements the thrust of the Commission’s proposals on criminal law reform.

We produced a draft of this Bill a few months ago – I am very grateful to the NGOs and experts who provided comments and suggestions on the draft Bill.

There are five key features to the Bill we are publishing today.

Firstly, the Bill adopts the broadest possible definition to mean the communication of information by any means.

It will now include the communication of information that is generated, processed, transmitted, received, recorded, stored or displayed by electronic means or in electronic form.

Secondly, the Bill sets out an updated offence of harassment.

Our new version provides that a person who, intentionally or recklessly and without lawful authority or reasonable excuse is guilty of harassment – if they act in any of the following ways to
seriously interfere with the peace and privacy of the victim, or cause the victim alarm, distress or harm.

The actions spelled out are if the person

  • persistently follows, watches, pesters or besets another person, or
  • persistently communicates with another person, or
  • persistently communicates with a third person about another person,

The punishment is a Class A fine or imprisonment for 12 months or, on conviction on indictment, to a fine or 7 years.

Thirdly, in the case of stalking the bill allows for stalking to count as an aggravating factor in sentencing.

In other words, if the defendant’s acts both seriously interfered with the victim’s peace and privacy and caused the victim alarm, distress or harm, the court may take that into account as an aggravating factor.

If the defendant and the victim were in an intimate relationship and, in the course of or for the purposes of committing the offence –

  • the defendant made use of personal information about the
    victim, or
  • the defendant made use of an electronic device or software in order to monitor, observe, listen to or make a recording of the victim or his or her movements, activities and communications, without the victim’s knowledge and consent,

the court may take that fact into account as an aggravating factor.

Fourthly, the Bill creates a new of offence of distributing an intimate image without consent – what is commonly referred to as revenge porn.

A person who takes, distributes or publishes an intimate image of another person without consent, or threatens to do so, and in doing so seriously interferes with the peace and privacy of the other person or causes alarm, distress or harm, is guilty of an offence.

In this case, such a person is liable on summary conviction to a Class A fine or to imprisonment for 6 months or both.

Finally, the Bill deals with prohibited messages.

The Bill provides that a person who distributes or publishes a threatening, false, indecent or obscene message to or about another person is guilty of an offence.

Again, this is limited to situations where the action is taken with intent to cause alarm, distress or harm, or recklessly, or persistently.

This offence is punishable on summary conviction by a Class A fine or imprisonment for 12 months or both and, on conviction on
indictment by an unlimited fine or imprisonment for 7 years, or both.

This replaces section 13 of the Post Office (Amendment) Act 1951.

These are the main provisions of the Bill.

But while I made clear at the outset that we believe these are proposals are proportionate to the dangers posed to our people, we also believe some safeguards are required.

I won’t list all of these, but three are worth noting.

In the case of children, the Bill states that criminal proceedings against someone under the age of 17 may not be taken except by or with the consent of the Director of Public Prosecutions.

None of us are seeking to unfairly punish children here, and this is a measure to make sure that only serious crimes by children are subject to criminal proceedings.

Secondly, as a further protection for victims, the Bill provides for the protection of the identity of victims.

This provision is broadly modelled on reporting restrictions in the Criminal Law (Rape) Act 1981.

And finally, but importantly, the Bill makes it clear that it is not to be interpreted as altering the law so as to prohibit or unduly restrict the exercise of the rights of peaceable assembly or peaceful picketing, or any other constitutional right.

Free speech should remain just that. 

But harassment, stalking, and aggravated online bullying are not expressions of freedom – they are attacks on it.

As you have heard this morning, women are particularly targeted.

Minority groupings are also more likely to be targeted – not because of anything they do, but because of who they are.

We hope this Bill will protect our people – all of our people.

Thank you for coming this morning.

ENDS

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