Amendments Nos. 1 to 7, inclusive, are related and may be discussed together. Amendment No. 2 is a logical alternative to Uimh. 1. Amendment No. 3 is consequent on amendment No. 1 or amendment No. 2. Amendments Nos. 4 and 5 are physical amendments to amendment No. 3.
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
I move amendment No. 1:
In page 3, between lines 18 and 19, to insert the following:
“ “intimate image” means a visual recording of a person made by any means including a photographic, film or video recording (whether or not the image of the person has been altered in any way)—
(a) (i) of his or her genital organs or anal region or her breasts (whether covered by underwear or bare),
(ii) in which the person is nude, is exposing his or her genital organs or anal region or her breasts,
(iii) in which the person is engaged in sexual activity, or
(iv) any facsimile image or part of an image generated by computer graphics or otherwise, purporting to be the genital organs, buttocks or anal region of the person or in the case of a female, her breasts, or purporting to be the person engaged in sexual activity,
(b) in respect of which, if it was recorded with consent, at the time of the recording and afterwards there were circumstances that gave rise to a reasonable expectation of privacy;”.
“ “consent” means the agreement by choice of a person who has the freedom and capacity to make that choice;”.
This amendment is important and this group of amendments are all related and similar. That shows the relevance of this type of amendment and the need for the Bill to address this issue. This amendment arises from all of the bodies that are interested in this Bill and have been pushing for it to be enacted, such as Rape Crisis Network Ireland. It is something that should be taken on board.
The definition of “intimate image” in section 1(a) above is confined to intimate images of the private body parts of the person himself or herself. It does not include intimate images of the body parts of strangers, which have been electronically superimposed upon non-intimate images without the knowledge or consent of the person whose image has been altered, or deepfaked. Deepfaking is a common and harmful form of image-based sexual violence. This is vitally important because while it may be somebody's face that is on the image but it could be somebody else's body and that is still an abuse and it should be recognised within this legislation. These amendments seek to cater for that.
I know the Minister, Deputy McEntee, said the Bill already covers this. I do not believe it does strongly enough and many of the groups that have an interest in this do not believe it is strong enough either. It is important we strengthen these provisions in the legislation. Once these images have been created, it is hard or even impossible to take them out of circulation. We have to have a chilling effect to stop the creation of these images at the start. If people are aware that they can be prosecuted for creating the images, that might have some impact on them and might go to reducing the volume of the images that are there. I ask that the Minister of State would take on board one or other of the amendments from this group so that this can be taken into account in the Bill.
I am delighted we have got to this stage of the debate on this important legislation. I want to thank the Minister, Deputy McEntee. Unfortunately she cannot be with us but I thank her for her co-operation with me in advancing this legislation to this point.
The net issue in this group of amendments is the definition of "intimate image". We are trying to ensure that the sharing of intimate images without consent is a criminal offence. Apparently that is a frequent occurrence and there is no legal impediment to it. It has been pointed out to us by Rape Crisis Network Ireland and a number of other agencies that the definition we originally put in the Bill does not cover all eventualities. I know we had some discussion on this on Committee Stage. The intimate images referred to in the Bill cover: "the person’s genitals, buttocks or anal region and, in the case of a female, her breasts", as enunciated in the interpretation section of the Bill that was passed on Committee Stage. All of the amendments in this group seek to achieve the same objective.
Deputy Jim O'Callaghan's amendment strikes me as a simple and neat solution. Rather than replacing paragraphs of the Bill, he simply wants to insert a few words in the original definition. Instead of defining an intimate image as I have already mentioned, we should insert before that: "what is, or purports to be" an image of a person's genitals and so on. With Photoshop and the superimposing of images on top of a recognised face, one can equally do significant harm. In my judgment, this would strengthen the Bill and I hope the Minister of State is in a position to accept one of these amendments. The neatest and clearest solution would be Deputy Jim O'Callaghan's proposition in amendment No. 5, to insert "what is, or purports to be" as well as the actual presentation of a person's genitals and so on. In other words, this is a superimposed image of genitalia on top of a recognised person. Unfortunately, that is a practice that apparently does go on and it is something that we should outlaw in this Bill if we can.
I also welcome the swift passage of this Bill and the progress it has made so far. I commend Deputy Howlin on the work he has done in bringing it this far. All of these amendments are basically aimed at the same thing, namely, ensuring that there is no misunderstanding when it comes to the law on how a person can be prosecuted, so that there is no loophole one can get out through. All the amendments in this group deal with that in different ways. As Deputy Howlin said, amendment No. 5 seems to be the simplest measure, except it only suggests that "what is, or purports to be" will be inserted in one place. I am not sure if that will be adequate or if it may need to be inserted somewhere else as well. I suggest that the Minister of State come back to us on that. I hope he will be able to progress this and that he will accept that it is sensible to try to ensure there is no loophole for any person who is setting out with the intention to damage another person. That is what this is all about. We want to ensure that does not happen and that the law covers that.
I want to speak to amendment No. 6 and in favour of the similar amendments, which attempt to fix a real problem with the Bill. I am eager to hear the Minister of State's response to this.
It is very welcome that this Bill is being progressed. It deals with what was until recently referred to as revenge porn. As Women's Aid pointed out, it is not revenge or porn but it is image-based sexual abuse. We know that for too long victims have had no legal recourse against this damaging form of abuse. It is thought to affect one-in-eight users of social media, 90% of them being women, with long-term psychological and personal consequences. Some 80% to 93% of victims suffer: significant emotional distress; feelings of isolation, anger, guilt, paranoia; deterioration in personal relationships; low self-esteem; depression; withdrawal; and even suicide. Those people, overwhelmingly women, who are affected by the abuse of the character that we are trying to address with this amendment, suffer the exact same consequences. The consequence of being part of an image which purports to be a person, with one's face superimposed on someone else's body, has the exact same effect.
The Government dragged its feet on this issue for years. This would not be happening today if it were not for the determined action of women's rights organisations and campaigns and the now almost 81,000 people who have signed Megan Sim's www.change.org petition. It is people power which has forced the establishment to act on this. I ask that the Government would accept one of these amendments to make sure that we deal with this issue when we are passing this Bill.
I thank the Government and Opposition for the timely introduction of this vital legislation. The amendments that I and others have suggested at various Stages of this Bill reflect our engagement with victims and survivor groups who took the very brave step to share their personal experiences.
There is a remaining key issue that needs to be addressed in this law. Deepfaking, that is, making images of fake events, for example, the addition of intimate images of body parts onto photos of a person without the person's knowledge or consent, is a common and very harmful form of image-based sexual abuse. Once online, such images can be impossible to have removed and, although faked, do real harm to victims and their lives. To address this specifically, I have been advised that the Minister of State needs to accept any of amendments Nos. 1, 2, 5 or 6. We are very close to having comprehensive legislation to tackle image-based sexual abuse. Can we please make that final step and add one of the amendments to provide that reassurance to victims?
We have to look at the larger cultural changes as well. Over recent weeks, discussions of image-based sexual abuse have involved forms of victim blaming. The sharing of intimate images without the full consent of the people in them is wrong. It will soon be a crime and it needs to be treated like that socially too. We need a zero-tolerance approach. Will the Minister of State please include some of those amendments, and will he respond to that when he speaks?
I will be brief. We are debating image-based sexual abuse and legislation to combat that. It is about time that this legislation was passed. The legislation needs to be strengthened by the amendments that we are debating today.
This is legislation that has been within the Oireachtas for a period of three years. Successive governments and the political establishment have taken a blasé approach to it. It is the pressure from below - people power - which has put this issue on the agenda in recent weeks. I congratulate all the people who have been part of that push.
We are discussing amendments Nos. 1 to 7, inclusive. The amendments are aimed at closing a loophole. It is a loophole that would allow intimate images to be put out there that have been doctored or photoshopped, for example, where someone's face is part of the image and the rest of the body has been photoshopped. We want to close that loophole.
The amendments would also avoid a situation where someone who was a victim of this type of image-based sexual abuse would have to prove that it was he or she, and the onus of proof would be upon him or her. That would be wrong as well.
We have proposed amendment No. 6. We are not het up on amendment No. 6. If one of the other amendments which was effective was to be accepted by the Government, we would be happy with that. The important point is that this loophole is closed.
It is the strong intention of the Social Democrats to support this Bill. We recognise that this particular Minister of Justice has prioritised the Bill. Certainly, in recent weeks, in light of the leadership that has been demonstrated, in particular, by young women on Twitter who have been impacted by this, there has been some rapidity brought to the legislation and we welcome the swiftness with which this is being carried.
We brought the necessary speed needed to enact this legislation following the discovery of thousands of non-consensual images and videos of Irish women and girls being distributed and shared online earlier in November of this year. Over many years, there has been no legislative protection offered to victims of this crime or punishment to the perpetrators. It is long past time that that ceased.
I recognise that the Bill has been strengthened on Committee Stage in that it now includes the Domestic Violence Act 2018 among the Acts referred to and has a requirement to carry out a review of the operations of the Bill in three years' time. The amendments I and others have put forward are intended to strengthen the protection of the Bill. I thank the work of the Victims Alliance and the Rape Crisis Centre for the tireless work they have done engaging with public representatives to improve the Bill.
The Bill needs to be future-proofed as much as possible to ensure that it keeps up with technology and recognises that technology currently available is being used to create deepfake intimate images. Deepfake intimate images, which are images that appear to be intimate images of the person but are not, cannot be separated out from this Bill as they are just as harmful, just as damaging and equally morally reprehensible. We need to ensure that they are captured in the legislation. As of September 2019, the artificial intelligence, AI, firm Deeptrace found that there were 15,000 deepfake videos online and 96% of these videos were pornographic. The technology is becoming more widely accessible and is used almost exclusively for the creation and non-consensual distribution of pornographic images and videos of women and young girls.
The current wording of the Bill refers to images of the person's genitals, buttocks, anal region or breasts. This, as pointed out by the Rape Crisis Network Ireland, leaves the door open to the defence argument that they are not images of the person's intimate areas that have been altered but are non-intimate images of the person instead, used to create deepfake images which appear to be, but are not, images of the intimate parts of the person's body. That is a huge gap in the legislation.
A wide variety of amendments have been put forward. This is one of those issues on which we do not have to be divided in terms of our political parties or where we align ourselves on the political spectrum. We can find common ground.
I strongly encourage the Minister of State to accept one of the amendments. We do not mind which one. Let us just strengthen the Bill. What we have brought forward is in consultation with a wide variety of people who have been impacted by this issue and has been strengthened by groups which have committed themselves to altering the law.
Of course, I support this Bill 100%. Anybody with any decent line of respect would. It is unfortunate that it has taken this many years to bring a Bill of this importance before us for approval. We should make sure that no other delay should be put in the way of enacting the Bill.
The showing of such images on the Internet, mainly of women, is outrageous and unacceptable. If it is an adult putting these things up - a male adult putting pictures of a female up like that - a custodial sentence should be considered in this country. We have to stop going easy on people who try to wreck other people's lives. If it is a younger person, we need to look at the education system and how we educate young boys or young children as they grow up to respect and use social media and not use it as a loaded weapon to hurt others. That has been happening for many years in this country, and probably in other countries. We cannot go light-footed in this country anymore in a situation like this.
It hurts people to the bone. I met with women who have been affected by this and their lives destroyed. Most of these people to whom it has happened must realise that today's news could be tomorrow's fish and chips paper wrapping and try and move on from these shocking events that have been inflicted on them.
We, as a State, have neglected them. We need to be strong enough to apologise to such people who have been violated. As I said, the sentences that will follow in the justice system must be appropriate to the actions of those who think they can find an easy way to hurt others in such a horrible, horrific and nasty way. If there is a strong message sent with strong sentencing when these people face the courts, it will send shock waves throughout the country and show that we are leading the way in protecting people, in this situation, mainly women, who need to be protected.
I am delighted to get this opportunity to speak on this. As I said, we need to focus strongly on our education system. Our young people are growing up. At ever younger ages they are using the Internet and social media. The adults have let their own children and young people down with the carry-on that we have witnessed and heard over recent weeks. It is probably going on for quite a period of time. The shock, the horror and the hurt it has caused are unnatural.
I have sincere sympathy for any woman who has been caught up in this travesty of justice. The Rural Independent Group will leave no stone unturned in the protection of these women and their rights. We will make sure that we support in the Dáil every protection that can be given to these people. We will show to rest of this country that this island will not tolerate this kind of nonsense.
I thank the Minister of State and Deputy Howlin for all their work on this Bill.
I, like many others, have spoken with Safe Ireland, the Rape Crisis Network and all the other groups involved in helping us refine and develop this legislation brought forward by Deputy Howlin. He really pushed it through and I congratulate him on it.
I hope the Minister of State will be able to accept one of these amendments regarding deepfaking. It is wonderful to have such cross-party support on this. Deputy Michael Collins is right that today's image in a newspaper will be tomorrow's fish and chips wrapper. The trouble and risk with Internet-based images is that they never go away. Seeing oneself in that situation, even if it is taken down at a later stage, can be deeply traumatising. This is new technology that is going to continue to evolve. The deepfaking issue is a real one. It would be wonderful if the Minister of State was able to accept one of these amendments.
I too want to thank Deputy Howlin, one of the longest serving and widely experienced Members, for the effort he has put in to progress this legislation. I also thank the Minister for Justice and the Minister of State, Deputy James Browne.
This came to light in a big way. It was under the surface obviously for a long time. This undercurrent has been out there for a long time. That happens with the evolution of technology. Technology is a wonderful thing. The education system, all of us as parents, Members and laypeople need to be more aware of what can be done with this technology and the long-lasting damage that can happen as a result.
I compliment all the Deputies and groups who put down amendments. I hope the Minister of State will see fit to accept some of them. We must deal with this but it is not going to be easy. I am not saying this legislation will stamp it out because there are sick and vile people who would contemplate using such images, taken in privacy with consent but, due to some dispute or whatever, share them among a few or many. Such a breach of trust in an adult relationship is damaging and dangerous. Recently thousands of such images appeared on social media. We get bombarded with so much stuff on social media that some things can be accepted as normal when they are not. We need to deal effectively with this.
I salute Chief Superintendent Derek Smart in Tipperary for the new unit he has set up in Thurles to deal with sexual crimes in every division. I really am pleased it was oversubscribed by members of An Garda Síochána who are ready, willing and able to take up the cudgels to deal with such crime. It was badly needed. Things have evolved and changed. Members of An Garda Síochána, no more than anyone else, were not equipped or trained to deal with this type of crime. The technology had passed us out. The Garda now has a new unit with specialist training. It took from badly needed resources elsewhere but this issue has to be put front and centre. The value we put on our children, our young girls, mainly, and our boys as well, could not be more important. Mol an óige agus tiocfaidh sí. The harmful content and harassment is sickening.
We had our joint policing committee, JPC, meeting last week at which a councillor asked how we advise a parent or a young person affected by this issue. They can go to any Garda station and will be put straight in touch with the unit in question. It is important because there is a stigma involved. We have seen what went on in the past, the horrible events in families and institutions.
I hope this legislation will be robust enough that people will not be able to circumvent it or find loopholes in it. Like Deputy Michael Collins said, custodial sentences should be used in these cases. I am concerned because this morning Deputy Naughten raised an issue about the sexual crimes register not being effective or policed enough with only one check a week. Is that legislation robust enough to deal with the people we are trying to take off our streets, get off our Internet, stop interfering with our lives and stop making money out of harmful content?
I am friendly with a principal in a large school. He has told me that everyone blames the schools and puts more work on them. He is right. The view often is that no matter what happens, the school should deal with it. The schools, however, have so many complex issues to deal with. They do great work and I salute the teachers and the boards of management. It has to be a holistic evaluation from the cradle to grave. Young people need to be aware and educated. Parents and guardians have a significant role and responsibility which is important.
I am certainly aware of girls who get involved in what they think are frivolous activities. Then, before they know it, it is way out of control and they are offered money by sugar daddies or whatever. There are huge issues. One would think it is so simplistic but it is so complex as well. The Rural Independent Group is supporting this 100%. I look forward to the Bill's passage and enactment, as well as the Garda being resourced. It has the units but these must be resourced for it to be totally on top of its game.
I thank the gardaí in Tipperary and elsewhere who looked to join the new sexual crime units. I wish them much success.
Like others, I welcome this Bill.
The consensus in the House is we need to do more. These amendments strengthen the Bill. They certainly do not undermine or weaken it and the Minister of State needs to look clearly at them.
The IT changes over the past two decades have made it much easier for such communications. As a public representative, I have dealt with some of these cases. I have had parents contacting me, particularly in cases involving children, not so much concerning two adults. It is usually in a school setting and has totally undermined and broken the child it happens to. Some of the cases involved the child's face superimposed on a graphic picture which went around the whole school. It often started in the school but ended up in the community. In some of the cases I know about the Garda was involved. The cases did not really go anywhere, however. There is an impact on the family and the victim. It will live with them for the rest of their days.
The biggest worry that the parents and the victims have is once an image is on the Internet, it is there forever. One tries to remove it but, unfortunately, it cannot be done. That is part of the worry that plays on the mind of the victim and his or her family.
We need to do more to support individuals as well. The Minister of State needs to look at that. We need to train and upskill our schools and the Garda Síochána. There needs to be easier access to counselling.
Years ago, some people would have dismissed this as kids having fun but we know the impact it has had on some children and adults. I appeal to the Minister of State to do more and if he is opposing the amendments he needs to explain clearly why. I do not see how they weaken the Bill. They add to it. As I began by saying, I welcome the Bill and the fact there is consensus in the House that we need to do more. It is a long time coming.
I have tabled amendments Nos. 4, 5 and 7 and I hope they have been drafted in such a way as to not impede passage of this important legislation. It is vital that consent is given to the subject of the image. Safe Ireland is the national social change agency working to end gender-based violence and it made a lengthy submission. Other Members have discussed deepfakes. We have to talk about images taken or created without someone's knowledge or consent. One explanation of sexual deepfakes is that they are made through the use of advanced technology and make it appear as though individuals are in videos or images in which they never took part, as a person in an existing image or video which features sexual content is replaced with someone else's likeness without their consent. The manipulated visual or audio content has a high potential to deceive. It is important that we are clear the subject of the image must give consent. This is about consent. I really feel it is something that would strengthen the Bill.
Since the spark of the #MeToo movement we have rightly become more aware of things we may have passed off or written off as acceptable. Thankfully, we have reached a stage where we know what is wrong and we know we will not stand for it any more. The Bill is hugely important when it comes to sharing intimate images of someone. If people do not have consent they cannot post the image. The act of posting it is a criminal offence. This is why we state it is so important. We must discuss the definition of consent in the Bill because there is a massive difference between images shared between a loving couple and images stolen from a sleeping individual at a party, an intoxicated person or a child who does not know what they are sending out into the ether. It is important we protect children and vulnerable adults as much as any adult of whom an image is taken or created.
Just yesterday, a nine year old told me that his idea of sharing things on the Internet is like pouring water into the river. We never get some of it back. We might get some of it back but not all of it. This is the thing about online images. We might be able to control the lighting and mood but we cannot control what happens once the images leave us and end up online. This is very important and must inform the legislation. We have to make sure. Many amendments have been tabled but, as other speakers have said, it is important to strengthen the Bill.
Images shared between two consenting adults and images later shared online that have been distorted for nefarious intent are vastly different. This is why defining consent in the Bill is important. We must include it or we risk the language being too loose, leaving consent to be defined by someone in a court of law in a "she said, he said, she said" type of conversation. If we place it on a statutory footing it will be defined for all to see and for all to know and form the basis of education in this regard. We have long known the Internet is a wild west without any kind of policing. It is high time we introduced criminal sanctions for bad behaviour online. It should always have been a criminal offence to share intimate images of someone without consent but now it must be the case. The devastation from this type of abuse is absolutely horrific. We have got to be very clear about any definition of consent and intent and note that image-based abuse is abuse of a sexual nature.
I compliment Deputy Howlin. He has been working on the Bill for a long time. This is important and it needs to be done as soon as possible.
I thank Deputy Howlin for sponsoring the Bill and pursuing it. It is extremely important and I commend his work on it. I also thank Members throughout the House for their contributions on the Bill as it has worked its way through the Dáil.
Amendments Nos. 1 to 7 all relate to the definition of an intimate image for the purposes of the offences in sections 2 and 3 of the Bill. There was some discussion of this issue on Committee Stage and I appreciate that Deputies are concerned about the implications of the definition proposed in the Bill. Broadly speaking, two concerns are apparent from the proposed amendments. The first relates to the types of images that would come within the ambit of the definition. The intention behind the amendments is to ensure that images that have been altered or doctored, commonly referred to as deep fakes, fall within its scope. I assure the Deputies that very careful consideration was given to this definition during the drafting. The definition refers to any visual representation by any means. The word "representation" with regard to a person also extends to representation of their intimate body parts, of them being nude or of them being engaged in sexual activity. The definition has been drafted in this manner to ensure the entire spectrum of images is covered, which would include a hand drawn image or a digital image either created or altered using modern forms of technology. However, in light of the very obvious concerns raised by Deputies, I am minded to accept amendment No. 5 to include the words "what is, or purports to be" in the definition to ensure there is no confusion. I hope this will allay the concerns raised on this point.
The second issue relates to consent. The amendments proposed by the Deputies have attempted to include reference to informed consent where a detailed definition of consent modelled on what is used for sexual offences under the Criminal Law (Sexual Offences) Act 2017. I respectfully have to disagree that these amendments are either necessary or appropriate. The word "consent" is a readily understood concept in most of the criminal offences on this Statute Book and appears without definition for this reason. There is a very specific definition of consent for the purposes of certain sexual offences due to the nature of those offences and the fact it is quite often the most contentious issue in a prosecution of that nature. The definition as proposed in amendment No. 7 does not appear to make sense in the context of the offences in the Bill, particularly as it refers to the capture of an image rather than the recording of an image as appears in the offence. For this reason it may be unworkable. Amendments Nos. 1 and 2 would complicate matters further by referring to a reasonable expectation of privacy if an image was taken with the consent of the person. The definition is simpler without this. It would be an offence to distribute or publish without consent and it does not matter whether the person consented to the taking of the image. Further, if the image was taken without consent this would fall within the remit of the offence in section 3.
Amendment No. 4 refers to informed consent, which is not further defined and, as such, adds little to the Bill. The Bill does not contain a definition of consent because including such a definition could lead to a complication of what should be a relatively straightforward issue. I am of the view that the amendments are unnecessary and could cause complications in any prosecution under the Bill. For these reasons I cannot accept them. However, I will accept amendment No. 5.
I welcome the acceptance of amendment No. 5. It is the amendment I recommended from the group. I am concerned that some of the other amendments might add a complication, particularly to the issue of consent. It should not be a matter of being able to contest it by way of a new definition as opposed to the normal understanding of consent. The acceptance of Deputy Jim O'Callaghan's amendment captures the concern of everybody who has spoken about what purports to be an image of somebody, in other words, an altered image or a superimposed image. On Committee Stage, the Minister gave us an undertaking to look at it again, although she was convinced the Bill as drafted already covered that eventuality. It is abundantly clear now that the amended section will cover it and I thank the Minister of State.
I welcome the fact the Minister of State has agreed to accept amendment No. 5. It is very welcome. On the point of consent, I do not think Deputy Murnane O'Connor's amendments work. What we do need are wider public education campaigns on consent. It is vital that older generations as well as young people understand what consent means. It should include mandatory consent, anti-harassment training and policies and complaints procedures in work places and organisations.
The trade unions should have a crucial role to play in that.
The question of objective sex education will come back on the agenda. It is essential that we have objective sex education in our schools. I understand that a new curriculum will be brought forward. In many respects that new curriculum may be relatively progressive, certainly compared with what is taught in the schools today, but if the Government does not - and it seems it will not - take on board the point in our Provision of Objective Sex Education Bill 2018, which came from the report of the former Joint Committee on Education and Skills on sex education, and remove the barrier of religious ethos from the Education Act, all of that can come to nothing because schools can decide not to deliver this curriculum, no matter how good it is, because it conflicts with their religious ethos. That is a fundamental problem we will have to return to in the new year.
I, too, welcome amendment No. 5. It is important that we strengthen this Bill as much as possible. With regard to my own amendment on consent, it is important that we look at education and learn from this. It is important that this Bill is passed by the House as quickly as possible. I thank the Minister of State.
Speaking to the amendment earlier I neglected to mention Deputy Howlin and his help in bringing this Bill forward. I wanted to take the opportunity to state that because the Bill is vitally important and it is a great tribute to the Deputy.
I welcome the fact that the Minister of State is accepting amendment No. 5 as a compromise. That is important. I hope the reasons he has given for rejecting the other amendments will not turn out to be true and that his acceptance of amendment No. 5 will be enough to provide the protections required in the Bill. I welcome that and hope time will tell that he was right.
Amendment, by leave, withdrawn.
Amendments Nos. 2 to 4, inclusive, not moved.
I move amendment No. 5:
In page 3, line 22, after "of" where it firstly occurs to insert "what is, or purports to be".
Amendment agreed to.
Amendments Nos. 6 and 7 not moved.
Amendments Nos. 8 to 12, inclusive, are related and amendments Nos. 9 and 10 are physical alternatives to amendment No. 8. Therefore, amendments Nos. 8 to 12, inclusive, may be discussed together.
I move amendment No. 8:
In page 4, to delete lines 3 and 4 and substitute the following:
“2. (1) Any person who distributes, publishes, transmits, sells, makes available, advertises or threatens to distribute, publish, transmit, sell, make available or advertise an intimate image of another person—”.
The purpose of amendment No. 8 is to strengthen the law on the distribution or publication of any images or making them available. I have just lost my notes on the amendment so I cannot speak further on it. The intention is to increase the definitions that are required within the Bill and to make that workable.
The Irish Council for Civil Liberties has been calling for a law to criminalise images of sexual abuse for years. It must be welcome that there has been a fine scrutiny of this Bill on Committee Stage, and amendments are always welcome to strengthen the Bill. I welcome the Minister of State's acceptance of amendment No. 5 which allows us to stand over the final legislation. It is vitally important that all victims' experiences are taken into account when dealing with this issue. We cannot continue to have a situation where the lack of an effective law criminalising online harassment allows abusers, trolls and stalkers to go unpunished. We must protect victims and we must punish the perpetrators.
I wholeheartedly support the Bill and amendments such as the one put forward by my colleague, Deputy Murnane O'Connor, that add strength and substance to it. To abuse and harass someone online is one of the most odious acts anyone can commit. It says a great deal about the negative attributes of someone's characteristics. I have seen it happen many times at home. I have seen it happen on WhatsApp, Viber and Facebook. It happens in the realms of social media, often hidden behind a cloud of anonymity. Others do not hide behind the cloud of anonymity and are quite out there, so to speak, in what they do. I have received my share of online harassment. As a public representative representing communities and also as a teacher who has taught many children over the years, I know of many people who have been subjected to online harassment. Fortunately for many of us who are at the receiving end, there is a little "mute" or "ignore" button we can press. This means that when we see the banana skins thrown in front of us, we can step over them. There are many people who engage in harassment. There are others who may not be able to escape that net so easily. I pity those who are closer to those who perpetrate this kind of harassment.
This is a timely Bill. It reflects where modern society has gone. There was a time, probably in my father's time but it existed when I was growing up, when a bully was someone who stood up in the school yard and issues got sorted out by going to the teacher. Sometimes, small boys and girls had to settle disputes in their own way in the yard. Online trolling, harassment and abuse, however, has reached a more murky level. People hide behind a cloud of anonymity and think they can treat people in whatever way they choose. When I was teaching up to February of this year, we had a very simple mantra for the children in my class, which was that they should screenshot something, show it to someone and, ultimately, report it. For children, that could be reporting to a teacher or another grown up but for adults it is important that there is also a legislative mechanism whereby they can report online abuse and harassment. If we were walking down the street we would not accept a stranger haranguing, harassing and abusing us so why should we have to take it on WhatsApp, online, etc.?
I am glad the Bill is before the House this evening. I hope that, without further ado, it will get support across the House. In the months and years ahead, the people who are guilty of trolling people online and trying to disrupt people's normal way of life should not have a right to anonymity. Their names should be made public. We should know their identity.
I know of several people who perpetrate this abuse. Some of them might see this on my social media feed later when I put it up. With or without legislation, they need to cease and desist because their actions in a community and among people who are trying to live normal lives can be very damaging. I hope it gets the full support of the House.
I will conclude by wishing a very happy Christmas to the Ceann Comhairle and all the staff in Leinster House who have made the past number of very challenging months as good as they could possibly have been, in particular those staff who come here to the convention centre. Somehow, after a century of Dáil Éireann, they have managed to move all operations from Kildare Street with huge success. I wish each and every one of them a very happy Christmas. I hope 2021 will have many positives in store for all of us.
I thank Deputy Crowe for his contribution and particularly for his kind words. I call Deputy Bríd Smith.
Can the Ceann Comhairle clarify for me the amendments we are dealing with now?
We are dealing with amendments Nos. 8 to 12, inclusive.
The Bill is welcome and the fact that we are attempting to pass it before the end of the year is positive. It is about three years since our society was shocked by the events that led to the death of Dara Quigley. That has to be deeply regretted and we should never see a repeat of it. More recently, there were scandalous events related to a Discord server and what emerged from that. This Bill is being passed and we welcome it. There are a couple of things in the amendments that we are dealing with which I would like to speak to, and I will press any amendments that we have, particularly regarding images being held or stored. It is important that that is included in the Bill, because relationships can come or go, but it is not acceptable for somebody to hold on to images of a private or personal nature with the intent to do something with it.
When one looks at what is going on in Irish society and indeed in other societies, since it is not particular to this country, there is a worrying misogynistic and abusive culture. A recent study from Trinity College and Maynooth University showed how prevalent it is. It shows that approximately 15% of Irish adults have been raped at some point in their life. One in three has experienced some sort of sexual violence. One in five women and one in ten men has been raped. Some 31% of Irish adults experience sexual harassment, unwanted sexual comment or behaviour. It is a deeply embedded part of our society. Although we welcome the legislation, for us to frame the problem solely as a need to criminalise it after which it will go away would be a mistake. If we look at the USA, the amount of legislation on this has not made society there any less misogynistic, dangerous or abusive. If we do not present the problem as simply a need to criminalise this, then we have to look at other social solutions. Tackling these wider societal issues is more of a challenge in the long run, because one cannot just pass legislation to do it.
There needs to be an emphasis on education. As has been said, there is an apparent need for a non-ethos-based sexual education programme, which can deal with issues regarding sexuality and consent. Those of us who worked on the Committee on the Eighth Amendment of the Constitution, dealing with the recommendations from the Citizens' Assembly, will remember well that we recommended that sexual health and relationships education, including on contraception and consent, be provided in schools, colleges, youth clubs and other organisations involved in education, in an impartial and factual manner independent of school ethos. I recently asked about the plans to implement that recommendation and I am not comforted by the answer. It stated that there is a review of relationships and sexuality education, which is the model we have been using, and it repeated that schools have a responsibility to provide this, having regard to the ethos of the school. I am not encouraged by that answer. I think we have to look outside the criminalisation of these issues and at why it is happening in the first place.
Society as a whole needs to recognise how sexual abuse can impact on us. More investment will be needed, not just in education but in organisations that would support people who suffer from this kind of abuse. In 2018, the organisation One in Four had to close its doors to waiting lists for adult survivors of abuse, because it did not have the capacity to deal with the demand on them. The more we begin to uproot this from all aspects of our society, the more we will have a demand for this. It is imperative that the State, the Government and all Departments connected with health, justice and education release those resources and begin to deal with it in wider society as well as passing legislation. No matter what we do here today, it will not end tomorrow. There is a deep-rooted problem here and we begin with our young people and re-educating adults who have a problem with misogyny.
On amendment No. 12 in the names of Deputies Pringle, Joan Collins and Connolly, anybody convicted under this would be on the sexual offenders list. I would have a problem with that. If a 17 year old is convicted under this for abusive images, that person would carry that for the rest of his or her life, regardless of how many changes he or she makes, how he or she moves forward or how regretful he or she is of it. It has significant consequences on where one can live or work. I have a problem with that amendment.
The use of the word "reckless" in amendment No. 11 is open to being too broadly interpreted. I also refer to minors. Are minors acting recklessly or is it part of a culture that needs to be uprooted? I do not agree with all the amendments but I welcome the Bill.
I refer to the Solidarity-PBP amendment No. 10, which would insert the word "holds" after distributes. The point that we want to make here is that in order to step over the line in terms of the law, it should not simply be the case of distributing the image, but if one holds the image with the intent to cause harm, that should be on the wrong side of the law. A practical example would be if someone was involved in blackmail. As I read it, the legislation as currently framed states that one has transgressed the law if one distributes the image, whereas we are saying that if one threatens to distribute the image, for example, in the case of blackmail, then that puts a person on the wrong side of the law. I think that is a progressive amendment and it should be included.
I want to make a brief point on a comment earlier in the debate, when a Deputy referred to girls getting involved in frivolous activities. I do not think that type of point needs to be made in this debate. Women and girls are the victims of what is happening here and sideways swipes of that kind are not called for in this debate, and we should knock that on the head.
No doubt we all get involved in frivolous activities from time to time.
There are a number of amendments here. Most are sensible and try to expand the realm which this legislation will cover. However, we need to be cautious about part of it. I fully respect what Deputy Barry mentioned earlier about holding material and having material in one's possession even if one is not distributing or publishing it. We often come across cases, as have been told to me, where a person receives something without looking for it, and then that person is holding it without requesting it or having any part in it. We need to be cautious about that. Many people receive material which they never asked for. I have certainly come across situations where women have relayed to me that they have received intimate images of people that they never asked for and never wanted, yet the images arrive in their inbox, sometimes multiple times. While they never wanted those images, it would be unfortunate if this legislation put them on the wrong side of the law.
I agree with Deputy Bríd Smith that we need to be careful that we do not criminalise young people for the rest of the lives for something that happened when they were teenagers, often very young teenagers. We need to be careful in that regard because much of this activity happens between teenagers. While we may frown upon it, it happens. That is the reality. We must try to build a society where this culture diminishes, moves to one side or is eliminated. While this is very much about the legal matter, part of this is, of course, about education and developing a much more mature sense of what consent is all about and how people can work to ensure that happens in all aspects of their lives at all ages.
While some of these amendments may be appropriate, we need to be careful around some of them. I am interested in hearing the Minister of State's view on them.
I welcome this important, modern legislation. I thank the Minister for Justice, Deputy McEntee, for prioritising this legislation which will prevent the sharing of intimate images and criminalise online harassment and bullying. There is no doubt this Bill will not just protect people online but will also save lives. Mental health is precious and it is fragile. The impact of online abuse on mental health can be deadly. The anonymity of the Internet breeds hurtful and harmful vitriol which can have long-lasting effects on victims and, in particular, on the mental health of our teenagers and young people.
I thank Jackie Fox for all she has done on this issue. Her work has brought her daughter Nicole's legacy into law - Coco's Law.
People will know this Bill has been a long time in gestation since I introduced it three years ago. Technology has changed as well and so we need to look very carefully at every aspect of it. All of the debate thus far on the Bill has focused on the sharing of intimate images. That element is only one part of the Bill but a very important part, and one that has come into greater focus in recent times because of the terrible harm that is being done by the sharing of intimate images. The other element of the Bill is online bullying and harassment, which, as we have heard, has literally driven young people like Nicole Fox to suicide. It is a really important part of the Bill as well.
I have described the right of people to use social media and the Internet. It is a public space and people should be as protected there as they are in any public space, be that on a street or in a public park. There are no such protections and the most terrible harm is being done to people. For this reason, I have been very anxious to start the process of regulating that environment. This legislation is a significant start, but I am under no illusion that it is only a start. As technology evolves and the outworking of this Bill impacts, we will be back with amendments to it in the future.
The legislation will give reassurance to people who are suffering terribly. Since I first published this legislation and held a press conference on it three years ago, I have been contacted by an unknown number of individuals about their personal experiences. Much of this activity is not visible. As I said, it is not like an assault in a street. It is not visible but the harm can be horrendous.
On this group of amendments, I share Deputy Martin Kenny's view on the notion of holding images. It is something we thought about and was referred to on Committee Stage. The point about blackmail is covered. Blackmail is a criminal offence, separate from anything we do here. Threatening to distribute will be a criminal offence under this legislation. A person can hold images and not distribute them. Under section 2, threatening to distribute an intimate image of another person without his or her consent would be a criminal offence.
I have a reasonably open mind on whether offenders under section 3, which deals with the distribution of intimate images of a person which can cause terrible harm, should be added to the sex offenders register. Simpliciter it looks like a sexual offence. There would be instances where that would be warranted. In terms of it encompassing young people, there is a section in the Bill whereby the prosecution of children, which under the Children Act is anybody under the age of 18, could only happen with the consent of the Director of Public Prosecutions, DPP. That is right and proper. It would be only in serious cases that minors would be prosecuted. Whether there are cases where it might be justified to have such offenders included on the sex offenders register is a matter on which I have no absolute fixed view. I am interested in hearing the Minister of State's view on it.
This group of amendments relates to section 3, which deals with the distribution and publication of intimate images without consent. Amendment No. 8 attempts to include the concept of selling, transmitting, making available or advertising an intimate image without consent. These behaviours are already covered by the concepts of distributing or publishing, with the exception, perhaps, of the notion of making an intimate image available. I am not sure what is intended by it, but it appears to be vague and, as such, is not appropriate for inclusion in a criminal offence. I cannot accept the amendment for that reason.
Amendment No. 9 is technically flawed as it refers not to an intimate image but to content, which is not defined. Furthermore, it does not appear to delete the original wording in section 3(1) and as such would make no sense if accepted.
On amendments Nos. 10 and 11, the Minister outlined on Committee that she does not support the criminalisation of receiving or retention of intimate images in that we have provided for offences, with harsh penalties, where such images are distributed or published or where somebody threatens to do so. It is unclear what "holding" means in this context and it is not defined. I am concerned about the language used in amendment No. 11, in particular the use of the words "through coercion". As rightly pointed out by Deputy Howlin, section 3 covers the threat to distribute where anybody is holding an image and that person is prepared to use it in any unlawful manner. It is not clear whether it is intended that the person who commits the offence is coercing another to distribute or publish the intimate image or if he or she is doing so by reason of having been coerced by another to do so. I think the intention behind the amendment is to criminalise a person for coercing another, not for being coerced. However, this is not clear and could lead to unintended consequences in regard to the behaviour sought to be criminalised. I appreciate the intention but I cannot accept these amendments.
On Committee Stage, the Minister outlined her position in regard to the offences being treated as offences for the purpose of the Sex Offenders Act 2001. The offence is intended to deal with harm caused to a victim and, as the case may be, an intention to cause harm on the part of a defendant. This is distinguishable from other offences on the Statute Book to which the provisions of the 2001 Act apply which are aimed at dealing with the sexual motivations of an offender and of potential future risk to the public. Therefore, I cannot accept amendment No. 12.
In regard to the concerns raised in regard to this group of amendments and other amendments, under section 13 there is a commitment to carry out a review within three years of the operation of the Act. As such, the legislation will be actively under consideration.
Amendment put and declared lost.
Amendments Nos. 9 and 10 not moved.
I move amendment No. 11:
In page 4, between lines 7 and 8, to insert the following:
"(c) intentionally, knowingly, recklessly or through coercion requests, receives or procures any intimate image of a person from a third party without the consent of the person depicted in the image and with the knowledge that the intimate image is being distributed or published without consent of the person,".
Amendment put and declared lost.
Amendment No. 12 not moved.
Amendments Nos. 13 and 14, in the names of Deputies Bríd Smith, Boyd Barrett, Barry, Gino Kenny and Paul Murphy, arise out of committee proceedings and are related.
We will withdraw these amendments on the basis of the previous argumentation.
Amendments Nos. 13 and 14 not moved.
I move amendment No. 15:
In page 4, to delete lines 35 to 38, and in page 5, to delete lines 1 to 7 and substitute the following:
"4. (1) A person is guilty of an offence where he or she, by any means—
(a) distributes or publishes any threatening or grossly offensive communication about another person, or
(b) sends any threatening or grossly offensive communication to another person,
with intent to cause serious interference with the other person’s peace and privacy or to cause alarm or distress to the other person.
(2) For the purposes of subsection (1), a person is presumed to have intended the natural and probable consequences of his or her acts, but this presumption may be rebutted.".
This amendment deals with an issue we discussed on Committee Stage, namely, the question of intent. I was concerned that this would be a difficult point to prosecute and might prove to be an obstacle we did not envisage in the original drafting. I have proposed, as I indicated I would, a phrase from a different offence. The proposed subsection 4(2), as inserted by my amendment No. 15, states: "For the purposes of subsection (1), a person is presumed to have intended the natural and probable consequences of his or her acts, but this presumption may be rebutted." In other words, where somebody is grievously harmed, that natural and probable consequence of a particular action should have been known to the individual who caused the terrible harm.
The advice from our legal adviser is that this provision strengthens the section by addressing the issue of a person being able to defend against doing somebody terrible harm because it was not intended or because the person did not mean to cause, or did not realise he or she was causing, such terrible harm. That would not be an acceptable defence in that it would now be up to the person to rebut the consequences of what he or she did to an individual and there would be a presumption that he or she should have understood the probable consequences of taking that action.
I support Deputy Howlin's amendment because it goes some way to addressing an issue with this section. However, there remains a problem with the section even after this amendment. I would like to hear the Minister of State's response in this regard. It is to do with what constitutes "grossly offensive" communications. The main thrust of the Bill, and the main commentary around it, has rightly focused on image-based sexual abuse. However, nowhere is "grossly offensive" defined in such a way as to limit it to communications of a sexual nature. It is clearly much broader than that.
In fact, this section, as it stands, could have real and damaging implications for freedom of speech because it provides that anyone who sends a "grossly offensive communication" to or about another person with the intent to "cause harm" is guilty of an offence carrying a potential sentence of up to two years in prison. I have two issues with that. First is the fact, as I said, that a "grossly offensive communication" is not defined anywhere in the Bill and is, therefore, left to the interpretation of a judge. Second, "harm" is defined in the Bill to include where a communication "causes alarm". A judge could decide that someone online calling me or any public representative whatever name under the sun has been grossly offensive and alarming and the person could be sent to prison for it. I receive my fair share of abuse on social media. I do not welcome it but I do not think it should be criminalised. I do not think anyone should go to prison just because he or she caused me alarm.
There is a fundamental issue of freedom of speech here, which is already lacking due to our draconian libel laws. I fear that, as drafted, this section of the Bill hands a weapon to the powerful to constrain the freedom of speech of people criticising them. It is the already powerful, not ordinary people or victims of serious abuse, who will have the knowledge and resources to make use of this section. I welcome amendment No. 15 because it improves the section, but in a relatively limited way. I am interested to hear the Minister of State's response and whether this came up on Committee Stage.
I appreciate Deputy Howlin's concern in regard to the issue of intention. Generally speaking, it is the position in criminal matters that intention can be proved by reference to the natural and probable consequences of a person's actions. I would see no harm in including the proposed subsection 4(2), as inserted by amendment No. 15, in the Bill. Unfortunately, the amendment also makes a change to subsection (1). I cannot agree to that change in the structure of the offence, which has been carefully considered. Therefore, I cannot accept the amendment. The matter can be kept under review and if it needs to be amended in future legislation, that certainly can be done. The Minister, Deputy McEntee, has said she will keep an open mind on the matter.
Regarding Deputy Paul Murphy's comments on freedom of speech, I was not in attendance on Committee Stage but my understanding is that this issue was strongly debated. I assure the Deputy that it was also heavily considered during the drafting stage. That is why there is a requirement in the Bill in regard to the intention to cause harm. There is a view that there is sufficient protection there in respect of free speech. I understand there was even a push to have the word "grossly" removed but that would have opened it up widely to all sorts of potential criminal offences. That is the position as I understand it.
I thank the Minister of State for accepting the potential of my proposed subsection (2). I do not know whether it is technically possible to amend my amendment simply to add that subsection to the existing section 4. The Ceann Comhairle might be able to advise whether it is technically possible to do so.
We had a lot of debate on this issue and it goes to the heart of online bullying. Obviously, we do not want to trample in any way on freedom of speech, but one person's freedom of speech is another person's complete harassment to the point of driving people to suicide. Unfortunately, we have very clear and real evidence of that. It is why I believe that the offence as defined in this subsection is required. As I said, the redrafting of the section, as proposed in my amendment, was to deal with the issue of intent and ensure it would not be possible for somebody who has caused extraordinary harm to another individual through the distribution of threatening or abusive materials to escape that by being able to say that the harm done was not intended.
I do not know whether the Ceann Comhairle got technical advice on the amendability of my amendment.
This is going to be interesting. The Deputy can most certainly amend his amendment provided that the intent and nature of the amendment to the amendment is absolutely clear. It might be a good idea, if he is so doing, to read the amendment to the amendment into the record of the House. While he is thinking about that, I will call on Deputy Paul Murphy, who wishes to contribute.
I am not convinced by the Minister of State's explanation in terms of the general point. To give a hypothetical, but a very real hypothetical, I could go onto Twitter now and find someone calling me whatever. In theory, a judge would only have to find that what the person said was "grossly offensive", which, by any literal standard, I am sure it would be, and that it was said with the intention of causing harm. The Minister of State is relying on that to say there is a very high bar. In fact, all the person has to have done, because of how "harm" is defined, is to "cause alarm". All he or she has to do is intend to cause me alarm by calling me whatever.
That is a significant freedom of speech problem. The reality of how it will or could be used, and I am just ringing an alarm bell here for the future, is precisely to criminalise those who are criticising those in power. They should not be using the language they are using or whatever but they certainly should not be criminalised for it. It is very concerning and I hope a constitutional protection for freedom of speech would mean that the judges would not seek to interpret it in such a broad way. However, I fear this is an issue that we are going to have to come back to in the future and amend, to try to defend freedom of speech and not to allow the law to be used in such a way as to criminalise people.
I thank Deputy Murphy. I cannot return to Deputy Howlin after this so we need to deal with this.
I propose to amend my amendment at page 4 and to drop “to delete lines 35 to 38” and add something after the existing section 4. I will read this section, as it stands, for clarity. It reads:
4. (1) A person who—
(a) by any means—
(i) distributes or publishes any threatening or grossly offensive communication about another person, or
(ii) sends any threatening or grossly offensive communication to another person,
and
(b) with intent by so distributing, publishing or sending to cause harm, is guilty of an offence.
(2) For the purposes of subsection (1), 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 suggest I add to subsection (2) of my amendment, which would read: "For the purposes of subsection (1), [which is the subsection I have just read] a person is presumed to have intended the natural and probable consequences of his or her acts, but that this presumption may be rebutted." I hope that is clear to the Clerk.
There is no particular difficulty with Deputy Howlin's intent, but my concern is that if we accept this amendment now, the consideration that may need to be given to it may mean the Bill is not ready for tomorrow. That is my understanding and we do not want any risk to it in these circumstances.
I only wish to be helpful in this process but I understand the Bill could be reprinted tonight and the necessary amendment made in order for it to be ready tomorrow. I am in the hands of both the Minister of State and the Deputy.
It will be printed in any event because of the amendment we have already made.
Yes, that is the case. The Minister of State indicated he was prepared to accept part of it.
I was accepting-----
The Minister of State should probably be careful of what he wishes for.
I accept the intention as opposed to what the Deputy is proposing. My view is that what the Deputy is intending to do is perfectly rational, reasonable and understandable.
Why can we not do it then?
I believe there will be a risk to the Bill tomorrow. I would have to oppose it on the basis that we want the Bill passed tomorrow. We are in an impossible situation because I know that Deputy Howlin wants this Bill passed tomorrow as well. It is a very important Bill to have passed. I have to highlight the risk and I am in the unfortunate position of having to oppose something I think is probably worthy. I do not think it is necessary in the context of the Bill, either way, because the law is very clear as to the consequences.
The Minister of State intends to review this legislation in the near future.
There will be one.
If the issue arises as a problem, it can be addressed at the time of the review.
Absolutely, I said that earlier.
Does Deputy Howlin accepts that situation?
Yes, I do.
I thank Deputy Howlin for his help.
On that basis I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 16:
16. In page 5, between lines 12 and 13, to insert the following:
“Harassment
5. (1) A person who, without lawful authority or reasonable excuse—
(a) intentionally or recklessly—
(i) persistently follows, watches, pesters or besets another person,
(ii) persistently communicates with another person, or
(iii) persistently communicates with a third person about another person,
and
(b) by those acts seriously interferes with the peace and privacy of the other person or causes alarm, distress or harm to the other person, is guilty of the offence of harassment.
(2) A person guilty of harassment is liable—
(a) on summary conviction to a class A fine or to imprisonment for a term not exceeding 12 months or to both, or
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
(3) Where, in proceedings for an offence under this section, the court is satisfied that the defendant by his or her acts both—
(a) intentionally or recklessly seriously interfered with another person’s peace and privacy, and
(b) caused alarm, distress or harm to the other person, the court may take that fact into account as an aggravating factor in determining any sentence to be imposed on the defendant for the offence.
(4) Where, in proceedings for an offence under this section, the court is satisfied that in the course of or for the purposes of committing the offence the defendant—
(a) made use of personal information about the other person, being information that would, in the ordinary course of events, be known only to the other person or
members of the family, or friends, of the other person, or
(b) made use of any electronic device or software in order to monitor, observe, listen to or make a recording of the other person or his or her movements, activities
and communications, without the other person’s knowledge and consent,
the court may take that fact into account as an aggravating factor in determining any sentence to be imposed on the defendant for the offence.”.
On the last amendment, we may be in danger of sacrificing what could be good Bill over just wanting to get it passed before Christmas. I do not think we are doing anybody a service by doing that. Could the Government perhaps commit to coming back in January with this Bill and putting it through then? I am worried about that. I know it is the Minister of State's, probably the Department's and everybody's intention to have a review but in the real world the review will probably not happen which is the sad part about this. That is no reflection on anybody as the Department has a great deal of work on its plate and so forth, and it is certainly seems that after tomorrow, this Bill goes into the distance as far as the Department is concerned. I am a bit worried about that. This is what we are faced with and it is probably a bit of a moot point talking about any of the amendments tonight, although they do need to be put forward and spoken about, in any event.
Amendment No. 16 inserts a new section on harassment in the Bill and it comes from the Rape Crisis Network Ireland, RCNI. It has submitted that in the context of intimate partner violence. The use of monitoring devices, including spyware, is a very common, insidious, often hard to detect and extremely serious form of harassment and abuse. This kind of behaviour should be named and punished as such in our criminal law. The RCNI’s understanding of the Dáil select committee proceedings was that there were fears that the presence of electronic spyware and physical monitoring devices, and the activities evidenced by their presence, may be very difficult to prove and therefore present an additional hurdle to victims. They may be the case on occasion while on other occasions, their existence and activities are easy to prove because unambiguous physical or digital evidence points directly to them. There is no reason there should not be a specific offence ready and waiting to mark the gravity of any spying behaviours which can be proved. That is of vital importance. Accordingly, RCNI recommends that this is retained in this Bill as a stand-alone offence, with a maximum penalty at least as great as that for deliberate or reckless distribution of intimate images without consent.
In some circumstances, it may not be detectable or enforceable but in other circumstances, it will be. I do not think that is enough grounds not to do something, just because some people will get away with it. That is the nature of crime. Some criminals get away with it and some do not but we still have laws.
I too support this amendment. As Deputy Pringle, it is very disturbing and distressing for people to be beset by or have harmful or menacing messages sent to them, or to be harassed all the time in terms of one-way traffic. Legislation needs to deal with this.
As Deputy Pringle said, perhaps we are rushing this Bill. We all wanted it and spoke here a month ago when the crisis hit. Deputy Howlin has been championing this issue for years. Perhaps we might make haste slowly and get it right because we are rushing it. As Deputy Pringle said also, reviews do not always happen in as timely fashion as we would like them. I have seen that to be the case with legislation and it is very seldom it is repealed, properly reviewed or returned for debate. We get one chance at it. This is so serious that perhaps we should go through it line by line because we are dealing with sophisticated criminals who have the money and the wherewithal to challenge legislation. It needs to be robust, effective and transparent and send out a message that this kind of behaviour of following, intimidating or sending messages with spyware is not acceptable. Electronic surveillance is worse and there must be a mechanism to deal with that to ensure there are proper penalties which will act as a deterrent because we need them.
If no amendments are being accepted, because one would have to redraft the Bill, why are we still going through the amendments?
We have already accepted an amendment.
I know but if the Minister of State is not accepting any more on the basis that he has to redraft the Bill, I just do not understand-----
We will come back to the Minister on that point.
I understand this amendment is around the issue of harassment.
We did speak about this on Committee Stage. The consensus was that there are already harassment laws in place and that the conflation of the offence with harassment could cause problems down the line. I would like to hear the view of the Minister of State on that. I believe what is proposed could be difficult. While I fully appreciate where Deputy Pringle is coming from, I believe we need to be very cautious about the issue. In all this, we need to be very careful that we do not have any unintended consequences.
I agree with Deputy Kenny in that we had a detailed discussion on this on Committee Stage. We are aware that the offence is prosecuted and is being prosecuted by the Garda under harassment legislation at present. I agree with the general point on getting the Bill as right as possible. On the previous amendment, the Bills Office has been able to insert additional amendments. A Labour Party Senator could try to submit an amendment tomorrow. On the amendment under consideration, No. 16, the harassment legislation covers the matter. It is already operable.
I just want to make a point on the Bill. The one thing I am very clear on is that there is no end to the amendments we could actually consider. People have been contacting me about this over the years, but also recently. Since there is such an urgent need for legislation in this area, our objective should be to establish a framework. As I said in my opening comments on this, the framework should not be the final word, by any stretch of the imagination. We will be building on it, firstly as we learn how it is operated. New technologies will have to be addressed in the future. I am anxious to have the Bill passed in both Houses before Christmas and assented to by the President so we will give relief to people who are suffering right now and who will suffer over the Christmas break from online bullying, harassment and the sharing of their images. They want to know that there is a robust legal framework to protect them.
I thank the Deputy for those words of wisdom.
The only amendment that would require a potential delay is the amendment to the amendment that Deputy Howlin proposed, as opposed to the published amendments. It is the only one that would cause a particular difficulty. I hope the legislation will proceed to the Seanad tomorrow. Senators will have an opportunity to submit amendments tonight if they believe they are necessary.
With regard to the definition of intent in criminal law, a person is presumed to intend the natural and probable consequences of his or her actions. Therefore, I am not concerned that not including Deputy Howlin's amendment would in any way have an impact on the prosecution of somebody for intent. It is not possible to know somebody's mind. One can never conclusively establish what somebody intended but it is presumed that he or she intends the natural and probable consequences of his or her actions. That is well established within our criminal law. I have practised criminal law for about 12 years so I am very much aware of it. Deputy Howlin may have been trying to add a belt and braces and to offer clarification. That is why I would have had no difficulty accepting the amendment. It simply restates the existing law.
Amendment No. 16, which proposes a new section 5, seeks to include a new offence of harassment in the Bill. I draw the Deputy's attention to section 11 of the Bill, which amends the current offence of harassment contained in section 10 of the Non-Fatal Offences against the Person Act 1997. On Committee Stage, the Minister agreed with the extension of the offence of harassment to include persistent communications with a person rather than simply communications with another person. This is considered completely appropriate in the social media age, and the proposed amendment to the existing harassment offence will retain this idea.
The proposed harassment offence in amendment No. 16 does not include other powers for a court that are currently provided for in subsections (3) to (5) of section 10 of the 1997 Act, providing that a court may impose an order on a defendant compelling him or her not to communicate with or approach the victim. This can be imposed regardless of whether a person has been convicted of the offence of harassment. It is an offence not to comply with such an order. It is considered that these provisions are extremely valuable.
Section 11 of this Bill inserts a new subsection (c) into section 10 to include communications about another person as an element of that offence by simply amending the existing harassment offence, as was agreed on Committee Stage, and the additional orders mentioned in subsections (3) to (5) remain as options for a sentencing judge. This is extremely important as orders can be proposed with or without a conviction. Furthermore, the aggregating factor in regard to the fact that the victim and the defendant are, or were, in an intimate relationship is required, with section 40 of the Domestic Violence Act also having effect. Therefore, I will be opposing amendment No. 16.
Amendment, by leave, withdrawn.
Amendments Nos. 17 and 19 arise out of committee proceedings. They are related and may be discussed together.
I move amendment No. 17:
In page 5, line 14, after “section 2 or 3” to insert “or section 10 of the Non-Fatal Offences against the Person Act 1997”.
As the Ceann Comhairle said, we discussed this issue on Committee Stage. In the original Bill I drafted, to amend the Non-Fatal Offences against the Person Act 1997, I had the harassment elements included in a judge's capacity to preserve the victim's anonymity. I refer to the amendment of section 10 of the 1997 Act. The Minister was of the view that the online harassment elements should not be encompassed in the capacity to keep the victim anonymous so the revised section 5 of the Bill before us preserves anonymity for victims of offences under sections 2 and 3, but not the anonymity of victims under section 10 of the 1997 Act. My two amendments are to reinstate the provision so that a judge, in proceedings, would have the capacity to give a direction that the identity of a victim of harassment should not be made known. I say this mainly because of the experience I have had, since the Bill was originally published, of people who have suffered online harassment. It can be absolutely crushing, literally to the point of suicide. I can say with some certainty that there is a fear that people will not come forward if they feel the harassment they are suffering would be compounded by having their names in the media or otherwise known. I ask the Minister of State to consider allowing the harassment element to be encompassed within the capacity of the court to make a determination that the anonymity of the victim should be preserved in such cases.
Amendments Nos. 17 and 19 propose to extend the anonymity provisions in section 5 of the Bill to the offence of harassment under section 10 of the Non-Fatal Offences against the Person Act 1997. Anonymity and privacy provisions in legislation are an exception to the normal rules in regard to the administration of justice in public guaranteed by the Constitution. Any departure from this must be justifiable. I appreciate that the nature of image-based offences would certainly warrant the protection of privacy considering the intimate nature of the images. I am aware that, in the past, cases involving intimate images have been prosecuted under harassment laws. This is a very sensitive matter. However, as this Bill proposes to introduce distinct offences to deal with the intimate images, it is unlikely that this would be the case in the future. Harassment is a very wide-ranging offence that can be relatively minor or extremely serious, and the protection of privacy may not be justifiable in all cases. This requires careful consideration. I therefore ask Deputy Howlin not to press the amendments. The Minister, Deputy McEntee, has undertaken to consider this matter further in the context of another Bill, which is currently being prepared.
On Committee Stage and subsequently, the Minister indicated that there is a justice (miscellaneous provisions) Bill coming next year and that she will give further consideration to the instances concerned in light of it. There are cases where what I propose is warranted. I am asking not that a determination be automatic but that it be open to the court to make one. I trust the judges in this matter. The judges will be able to determine, on a pleading from a victim's legal counsel, whether it is an appropriate order to make. The judge would make the order.
The section states that it has to be an order in writing. All I am asking is to allow the courts the capacity to make such a determination, not to make it a requirement for the courts to make such a determination. There will be, if you like, a chilling effect on some people pursuing legal proceedings for harassment if they feel that their names will be in the public domain, having already been seriously damaged by online harassment. If the Minister of State indicates to me that this matter will be considered next year, and I accept his bona fides completely, I will withdraw the amendment.
Can the Minister of State clarify that?
I can. The Minister, Deputy McEntee, undertakes to consider this seriously in the context of a Bill that is being prepared at the moment.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 5, between lines 22 and 23, to insert the following:
"(2) The person against whom the offence was committed may at any time, apply to a judge of the Circuit Court, to waive their right to anonymity. The Court may accept this provided the person is of sound mind and not a protected or relevant person or a ward of court and provided also that the Court is of the opinion that it is in the interests of justice for the person to waive their right to anonymity.".
This amendment comes out of committee proceedings and is probably related to the previous group of amendments from Deputy Howlin. It is important to put it on the record. It is about the waiving of anonymity and allowing a person the choice to waive their anonymity. It is about people's agency and regaining control over anything that has been taken from them by the non-consensual sharing of images. If a person waives their anonymity, then they can also name the perpetrator. We must listen to the victims and survivors in these circumstances and bring forward legislation that will empower them.
Rape Crisis Network Ireland, RCNI, has stated that in the light of recent Court of Appeal decisions on the anonymity of adult complainants in sexual cases, it is more important than ever that, wherever possible, complainants are empowered to waive any right they may have to anonymity. Accordingly, RCNI welcomes this proposed amendment and urges that it be restored on Report Stage or thereafter.
I understand that the Minister has said she intends to bring such a proposal forward in other legislation and that speaks to the attempt to rush this Bill through, as has been addressed. She has said she intends to address the matter in another Bill at a later stage. I know that the intentions are there and the legislation has already been drafted, but I would be worried about the potential for this to slip, despite the best will in the world. January might become February or March and that might continue through the year. I would be worried about that because it can happen. There is no doubt that the Department is legislatively demanding, which is understandable. I know the Minister of State is saying that a Bill is being drafted at the moment but the question is whether it will it come forward in January or February, or later in the year. That is the danger and I would be concerned that things would go on the long finger and not be dealt with. We need a firm commitment in terms of the timeframe on this matter.
Unfortunately, I cannot give a specific timeline. I will ask the Minister, Deputy McEntee, to provide a timeline in respect of when the additional legislation is expected to be brought forward in the new year.
Amendment No. 18 proposes the waiving of anonymity of a victim. That is not considered necessary. The Minister indicated on Committee Stage that she is satisfied that the matter can be considered within the interests of justice test, as set out in section 5. The aim of these provisions is to protect the victim from being identified, not the perpetrator, and, as such, the wishes of the victim will be taken into account. However, in light of the concerns raised on Committee Stage, the Minister has introduced amendment No. 20, which will ensure that there is an obligation on a judge to take into account the views of an alleged victim of an offence under section 5. Therefore, I ask the Deputies not to press this amendment.
Amendment, by leave, withdrawn.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 5, lines 24 and 25, to delete “he or she may direct” and substitute “he or she may, having taken into account the views of the alleged victim of the offence, direct”.
As I indicated, I wish to assure Deputies that the views of an alleged victim must be taken into account where a decision to lift the restrictions on publication of matters likely to identify a victim of an offence under section 2 or 3 is concerned. This amendment, therefore, places an obligation on a judge to take account of the views of the alleged victim. I ask Deputies to support this amendment.
Amendment agreed to.
Amendments Nos. 22 and 23 are physical alternatives to amendment No. 21. Amendments Nos. 21 to 23, inclusive, are related and may be discussed together.
I move amendment No. 21:
In page 6, to delete lines 19 to 22 and substitute the following:
“Summary proceedings: no time limit
7. Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted at any time from the date on which the person against whom the offence was committed became aware of the offence.”.
This amendment relates to the time limit on summary proceedings. The Observatory on Violence against Women and the Victims’ Alliance were calling for a change to the two-year summary proceedings sunset clause. The Bill originally said that the Act may be instituted at any time "within 2 years from the date on which the offence was committed" and both the observatory and the Victims’ Alliance want this changed so that the two years would start when the person became aware of the offence, or should reasonably have become aware of the offence. I do not think that there should be any time limit because of the nature of these offences. Such offending material could be around for a long time before the person concerned becomes aware of it. Two years seems a ridiculously short and unacceptable amount of time. What if the person finds out years later that their images have been shared on sites or within groups? I am sure there could be many instances of images being shared without consent or knowledge and that the people in the photos may never know that their privacy has been breached in this way.
It seems unfair to put a time limit on when this Act may be instituted, especially given the hidden corners of the Internet, the boys' club sentiments in some circles and the misogyny displayed the world over. The Minister said on Committee Stage that the limit here is usually six months and that she has increased it to two years, but I think it should be increased further.
Rape Crisis Network Ireland has stated that it welcomes this proposed amendment and has urged that it be accepted. It has stated that in its respectful submission, the proposed removal of the existing two-year time limit would help to bring even more offences under this Bill within the reach of prosecution and, therefore, of accountability for perpetrators. Accordingly, it has welcomed the proposed amendment and has urged that it be accepted. The key thing is to open offenders to prosecution because that will have a cooling and chilling effect. What we want to achieve is for none of these images to be distributed in the first place. The only way we can do that is by having legislation with a strong enough chilling effect.
The nature of the Internet means that it is possible for images to be around for a long time before somebody becomes aware of them. We are not going to be trawling the Internet and looking for offending images. When someone becomes aware of an offence, it might be a long time since the image was circulated. That is why this amendment is necessary.
I support this amendment. We are trying to deal with a serious issue. As Deputy Pringle has alluded to, the relevant images might be years old and, for some reason, they may appear ten years later. One might not know for a number of years that such an image is circulating and one might find out by accident, or whatever way it happens. I am confused as to why we need a sunset clause. The two-year limit seems a small window. The images may be hidden or stored away somewhere and then dusted down and used as intimidation or threats and eventually released. It could take a long time and a lot of damage could be done in the meantime when a victim does not know the images are there or what is in them. It is important that there is not an expiry date for a person to make a complaint or for a prosecution to take place. I would like to hear the Minister of State's explanation on this point.
The issue here is about the date on which the offence was committed and how that is interpreted. We would like to get clarity from the Minister of State in respect of that. Is the offence committed on the date that the picture or the subject of the complaint is published or made available, or is an offence committed each time an image is made available? Could that be constructed as a separate offence? I ask the House to consider a situation in which somebody puts a picture up on a particular website or sends it to the far side of the world. That image may be available in the Far East for a period of time and nobody, including the person whose image it was, would know it was there for a considerable length of time. If that person then discovered it, would the two-year limit apply from the time of the discovery that the image was out there, or from when it was first published or sent?
The issue of the time limit really needs to be dealt with. Time in these circumstances does not in any way limit the damage caused to the person whose image has been abused in this manner.
Before I speak to the amendment, I will respond to the statements made by the Minister of State as to why we could not alter some of the amendments because the Bill needed to be ready tonight for tomorrow. I just checked with some Senators and they received a message from the Bills Office today saying that once the Bill is passed, a new version will be sent to them tonight, depending on the amendments that have been accepted on Report Stage. I do not think we can justify not accepting amendments on the grounds of time restrictions because Senators will receive a written report on the outcome of amendments made following Report Stage. We can still have a proper to and fro debate and if amendments are deemed worthy of acceptance, as I believe Deputy Howlin's was, we should accept them tonight. On that, I apologise to Deputy Howlin for omitting his contribution to the Bill in my previous statement. I know he worked hard on it over the past couple of years.
This amendment is a sensible one in accordance with technology and groups such as WhatsApp groups, where these images may be stored. It might be several years before a person becomes aware their image is being violated, shared and disseminated through different groups. The law has to be in accordance with how technology is evolving so it is important we accept that it might be some time before a person becomes aware that their image has been misused to this extent and that we factor that into the laws as we make them. That is why I hope the Minister of State will accept this amendment.
The Minister, Deputy McEntee, indicated on Committee Stage that she would not support amendments of this nature. I reiterate her views. Section 10(1) of the Petty Sessions (Ireland) Act 1851 provides that summary prosecutions must be initiated within a time limit of six months. The time limits provided for in law for summary offences reflect the fact that an individual should not have a relatively minor offence that is summary in nature hanging over him or her for a disproportionate length of time.
Section 6 extends the time limit for the bringing of a summary prosecution to two years. This is something I support as I appreciate there may be difficulties in investigating offences that may be entirely online, as recognised by the Law Reform Commission. However, I am also mindful that this extension is an exception to the normal rules in relation to criminal prosecutions and should be treated as such. I point out that this particular section will only apply to summary offences under the Bill and not indictable offences, which attract a higher penalty. There is no time limit for the prosecution of indictable offences in Ireland. While I appreciate the intention behind the Deputies' proposals in amendments Nos. 21 to 23, inclusive, I do not believe it is appropriate to extend time for the bringing of summary proceedings beyond a significant extension provided for in the Bill already. This could have the effect of extending the time for summary prosecutions to any point in the future, which would mean it could be treated the same as an indictable offence. This is not desirable in practice and could be considered to interfere with the right to a fair trial, as guaranteed under the Constitution. I, therefore, ask the Deputies not to press the proposed amendments in this session.
On Deputy Kenny's comments, my understanding is that any republication would be a new offence and treated accordingly.
This was discussed on Committee Stage and the Minister was opposed to it. There is a difference which has to be taken on board in the Department. From memory, I think it was discussed on Committee Stage that one single image could exist of a person and that would be seen as a minor offence, whereas more images would be more serious and dealt with at the more serious stage in terms of the Circuit Court and stuff like that. One image can have a huge negative impact and that is the problem. The 1851 Act is probably not appropriate at this stage in relation to this because we are dealing with the Internet, digital images and stuff like that. Images can be around for a long time. It might be only one image and investigators will look at it and say it is only one image so it is not as serious and should be a summary offence rather than indictable offence. Then they will say it is only one image and the timeframe has passed, so it does not matter anyway. However, the impact on the victim will still be as great and that is the main factor that should drive us. For that reason, it is important and should be included in the Bill.
A single image can be treated as a serious and an indictable offence. There is no strict definition to the effect that one image can only be treated as a summary offence. It will be a matter for the judge on the day to take that into consideration.
It might be a matter for the judge but these cases will not even get as far as the judge. That is the problem. Is the Minister of State saying one image will be put forward to the judge in the Circuit Court? I would say that following the investigation, it will not be put forward by the DPP or even by the gardaí to the DPP. They will say it is a single image, it does not matter and it is not an indictable offence.
I can see where the Minister of State is coming from. What is deemed to be a relatively minor offence cannot be hanging over a person who is innocent until proven guilty forever. However, we are dealing with new technology and the storage of an image. I welcome the Minister of State's clarification that one image can be and should be an issue of criminal proceedings. It could be on the other side of the world, as Deputy Pringle said, and one does not know and finds out three, four or six years later. Will a complaint made at that point be regarded as a new complaint or is it gone out of date and one cannot go back? The Minister of State should consider this amendment.
The matter could still come before the court. It is triable, whether summary or indictable. It could come before the court and be dealt with as a indictable matter. However, we cannot blur the line between summary and indictable offences because the distinction is important.
Amendment put and declared lost.
I move amendment No. 22:
In page 6, to delete lines 19 to 22 and substitute the following:
“Summary proceedings: no time limit
7. Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted at any time within two years from the date on which the person against whom the offence was committed became aware of or should reasonably have become aware of the offence.”.
I will press this amendment. I do not accept the Minister of State's explanation. It is our job to enforce the law and strengthen judges. The judge interprets the law but we create it. I do not accept the Minister of State's interpretation and I will press the amendment.
Amendment put and declared lost.
Amendment No. 23 not moved.
I move amendment No. 24:
In page 6, lines 24 and 25, to delete all words from and including “Proceedings” in line 24 down to and including line 25 and substitute the following:
“Notwithstanding section 52(4) of the Children Act 2001, where a child under 17 years of age is charged with an offence under this Act, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.”.
I referred to the need to introduce a technical amendment to section 8 of the Bill following agreement with Deputy Howlin to do so. This amendment would mean that section 8 is aligned with section 252 of the Children Act 2001 in relation to the types of proceedings that may be brought with or without consent of the DPP. Deputy Howlin was anxious to ensure the wording used was similar to what was in the Bill as initiated. I think this amendment achieves that and I, therefore, ask Deputies to support it.
I do not know how many seconds I have, but the general point I was trying to make was about plain English. The Bill as drafted reads, "Proceedings against a person under the age of 17 charged with an offence under this Act shall not be taken except by or with the consent of the Director of Public Prosecutions." This measure is being translated into "Notwithstanding section 52(4) of the Children Act 2001, where a child under 17" and so on. It is better than the original provision, but we should strive for plain English so that, where people read legislation, it is understandable.
Amendment agreed to.
The time permitted for the debate having expired, I am required to put the following question in accordance with the order of the Dáil of 15 December: "That the amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.