I move: "That the Bill be now read a Second Time."
I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald, and thank her most sincerely for taking the Bill this evening. As she can probably appreciate, this means a lot to me because it is an issue about which I feel strongly.
While much online abuse targeted at teenagers, politicians and so on has been well documented in the past, in recent days focus has returned to the issue with Meath footballer Paddy O’Rourke being threatened and told, “don’t think I won’t knife you, brother” on Twitter. The Minister will agree that this is appalling abuse for any well intentioned sportsman to endure, but it does not stop there. I remember back in January 2013 reading a headline in an evening newspaper, which stated “cyber bullies claimed lives of five teens” Five children is five too many and having a legislative vacuum in this area is nothing short of a failure on the part of legislators.
So many people have contacted me about their own specific experiences online, for instance teenagers telling me they have self-harmed as a result of online abuse, or college students telling me about the vitriolic posts directed at them because they are student leaders. I have had people with disabilities itemise the horrendous abuse they sustain continually because of their conditions. A grown adult contacted me recently who had made a mistake and was subject to a very public campaign of ridicule.
While much is great about our online world and most people engage in it very positively, others' experiences tell me there is an element of our online community which wants to drag people into a bottomless pit of negativity, smother them with abusive and threatening messages and keep them in their sewer.
Technology is advancing at such an alarming rate that, as a Facebook and Twitter user, I am obsolete in terms of my tools of social media engagement. I first became aware of all the other apps on the market last year following a survey I carried out with Deputy Derek Nolan in schools in County Galway. This was my first experience of the ills of online interaction and, quite frankly, the results were frightening. Up to 70% of County Galway students have been or know someone who has been bullied online; a further 85% said cyberbullying is a major issue for young people; 22% admitted to having been subject to online bullying; and up to 50% know someone who has been cyberbullied. A majority of 80% did not think that enough was being done to tackle this issue.
As an Oireachtas Member, I felt an onus to do something about these statistics because they are a hell of a lot more than just statistics. It is very much real life. I started by contacting social media companies and calling on them to show some corporate social responsibility. I believe they have shirked their legal and moral responsibilities completely when it comes to providing a duty of care to their users. While I accept that the onus is on social media users not to behave in an abusive manner, we need to expect more of these multi-billion euro companies and ensure we have uniform application of the very same standards demanded of our print and broadcast media.
I wrote to Ask.fm, a website well known in this country for plausibly all the wrong reasons, asking it to advertise anti-bullying and suicide prevention numbers on its website for free in order that children in need would have ready access to supports. It has failed, refused or neglected to do so thus far. I wrote to Twitter and Facebook as a result of the inordinate number of messages I received from people who have been subjected to online abuse and I asked them how many complaints they have received in the past year; the average length of time it takes to investigate a complaint; and how many complaints they have referred to the Garda authorities. To date they have either failed, refused or neglected to provide me with this information. Social media companies have demonstrated to me that they will not step up to the plate and, despite the favourable tax rate they enjoy in Ireland, they clearly think they are entitled to cherry pick which laws they want to abide by.
The reality of the situation is that adults and children alike the length and breadth of the country have been exposed to sustained and sometimes orchestrated campaigns of abuse online. Their mental health and well-being suffer and they have no recourse. All of this has been allowed fester as a consequence of the lack of clear legislation in this area. That is why I am particularly pleased to put this legislation before the House. I strongly felt that based on the outcome of my survey and the victims of cyber abuse who contacted me doing nothing was not an option. We need to put down a marker. I began with a blank canvas; this Bill is very much a starting point. It is up to each Member of the Houses of the Oireachtas to add, amend and delete as they see fit. I am asking everyone in the Chamber to embrace and support my efforts because it is too big an issue to play political football with. It probably affects most households in the country. I am delighted this issue is now in the political consciousness after a long time in the public consciousness. Before I go into the sections of the Bill, I thank my Seanad colleagues, Senators Ivana Bacik and John Whelan, for supporting my endeavours and for signing the Bill which I will now explain to the House.
As previously stated, the purpose of the Bill is to protect against and mitigate harm caused to individuals by all or any digital communications and to provide such individuals with a means of redress for any such offending behaviours directed at them. Section 1 refers to the name of the proposed Act: Harmful and Malicious Electronic Communications Bill 2015. Section 2 provides definitions of “electronic communications”, “explicit content” and “shares”.
Part 2 of the Bill encompasses section 3(1) which provides that a person who, without lawful authority or reasonable excuse, intentionally or recklessly shares a harmful electronic communication shall be guilty of an offence. The words “without lawful authority or reasonable excuse” provide an out for people who might have lawful authority to use certain words and descriptions, for instance Ultimate Fighting Championship, UFC, fighters who might use that kind of language as a competitive tactic. “Shares” denotes the breadth of ways in which the communication can be disseminated and is preferable to the word "sends".
Section 3(2)(a) provides that for the purposes of this section, an electronic communication shall be considered harmful where it incites or encourages another to commit suicide. This provision is self-explanatory and I have included it in the Bill to respond to three high profile suicides of teenagers in recent years. Omitting this provision would have meant that, as legislators, we had learned nothing about protecting our young and most vulnerable online.
Section 3(2)(b), which refers to inciting or encouraging another to cause serious harm to himself or herself, covers all threats and abuse which culminate in serious harm to the person in question.
Section 3(2)(c) protects against the growing phenomenon of revenge pornography. I have included the words "the other" as opposed to "another" so as not to criminalise the use of pornography. Conviction under this section leaves an individual open to a fine not exceeding €5,000, a term of 12 months in prison or both. The level of penalty will be at the discretion of a judge who will decide if mitigating factors apply after considering all the circumstances of the alleged offence.
Section 4(1) provides that a person who, without lawful excuse, persistently shares malicious communications regarding another shall be guilty of an offence. This subsection refers to the persistent sharing of malicious communications which means that there must be more than one instance of cyber abuse.
Section 4(2) provides that for the purposes of this section, an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to another person. For instance, being drunk or stating that someone else was using one's telephone or computer may still be deemed reckless, particularly where the offence requires that the behaviour be persistent. Both offences under section 4 require the victim, namely, the person being "the other", to give evidence of harm. This is preferable to the use of the word "another" in respect of this offence as this would result in private communications about a third party being criminalised if brought to the attention of An Garda Síochána. Again, on conviction, a defendant would be subject to the jurisdiction of the District Court and he or she would be open to a fine not exceeding €5,000, a term of 12 months in prison or both.
Part 3 refers to jurisdiction and procedure. This is most important as it provides some scope for a judge to depart from the penalties provided for in sections 3 and 4. This will be especially important for children as it means they will not be criminalised, even in cases where the defendant has reached the age of criminal responsibility.
Section 5(1) refers to a number of reliefs available to the court. This gives the court leeway to put a stop to the offending behaviour, even in instances where proofs may not be satisfied. Paragraphs (a), (b) and (c) are self-explanatory and the benefits of the relevant provisions obvious. Subsections (5) and (6) provide that an accused who may not have been found guilty of an offence under sections 3 or 4 may be subject to an ancillary order which, if broken, would constitute an offence.
These are the parameters of the Bill. Prior to its enactment, it is vital that an awareness and education campaign is rolled out nationally and a specialised unit of An Garda Síochána is trained to deal with issues that may be forthcoming.
This is an important Bill which has the potential, in time, to become seminal legislation. By enacting it, we will join countries such as New Zealand and the United Kingdom and certain US states which have enacted similar legislation. These first world countries and modern democracies are leaders in international best practice in this area.
The purpose of the Bill is not to curb freedom of speech and the Constitution, the highest law in the land, already provides freedom of speech safeguards. As a qualified barrister with almost ten years experience, I fully understand this. As someone who also speaks her mind inside and outside the Chamber, I fully support freedom of speech and depend daily on this basic principle. The purpose of the Bill is to curb abuse and threats in our online world. It is an Internet safety Bill which is designed to protect children who may cry when they look at their computer screen, whose esteem is damaged and who have become withdrawn and no longer want to go to school. It is also about their parents who feel powerless to help and protect them and the need to restore decency to our online debates and engagement. Who could possibly be against that? For these reasons, I commend it to the House.