Seanad Éireann díospóireacht -
Thursday, 22 Feb 2007

Vol. 186 No. 6

Communications Regulation (Amendment) Bill 2007: Report and Final Stages (Resumed).

Debate resumed on amendment No. 5:

In page 49, between lines 19 and 20, to insert the following:

"(2) In this section a message sent by electronic mail or text message is deemed to be sent by telephone.".

—(Senators Ryan, O'Meara, McDowell,

Tuffy, McCarthy.)

Mr. Ryan

If an individual uses a landline telephone and commits an act as I have listed, it is an offence. If an individual sends an offensive or abusive text message or an electronic mail, it is not an offence. The amendment proposes that the section deems an electronic mail or text message as having been sent by telephone.

On Committee Stage, the Minister of State stated he did not intend to deal with this as it would be going outside the scope of the Bill. That is not the case. How could it be outside the scope of a broad-ranging Bill, dealing with offensive telecommunications, to claim certain forms of telecommunication message are offensive and prohibited by law? Claiming it is outside the scope of the Bill is an excuse by the Minister for not dealing with the issue.

The Minister claims the law on harassment covers the point. It does not. Even though harassment is an offence, it is defined as requiring repeated misconduct. This section does not require repeated misconduct but states, "...any person who sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing". It does not state "many". The rest of the section does not conform to the definition of harassment as repeated misconduct. A once-off threatening message by e-mail, for instance, would not constitute harassment as the law stands. The Minister of State referred to child pornography but this would be only a small part of offensive messages.

There is a considerable debate on the use of text messages for bullying and particular chat sites for frightening people. This amendment proposes nothing more than to bring our legislation into line with how people communicate these days. I have been in the House for years attempting to get Ministers to introduce sensible legislation. I demanded that the Internet be defined legally and ultimately it had to be. On copyright legislation, I demanded that computer-generated art be included until eventually it was. The great fact about not being a lawyer is that one has to employ common sense in these matters.

I do not know where the Minister of State got the excuse that this was covered by harassment. Effectively, if one uses one's telephone to offend people or to send an indecent, obscene or menacing message, it is an offence. If one uses text messaging or e-mail to do the same, it is not an offence. Why should it not be an offence? The only possible reason is that somebody conservative in the Minister's office did not and does not want to think about it and, therefore, the amendment will not be accepted. It leaves young people, the primary users of text messages and e-mail, vulnerable to threats of abuse and obscene behaviour by others without a proper legal remedy.

Mr. Norris

I second the amendment.

Senator Ryan has found an important lacuna in the Bill. It is obvious that much bullying goes on by e-mail and text messages. I hope this amendment includes visual images. There is the horrible situation where young women, in particular, have been brutally attacked and it has been recorded on the camera element on a telephone to be then transmitted on boobtube or whatever they call it. This matter needs to be addressed.

Senator Ryan stated it had been indicated to him that his amendment was outside the scope of the Bill. That is absolute rubbish and palpable nonsense.

Mr. Ryan

That is what the Minister of State claimed.

Mr. Norris

It does not matter what the Minister of State claimed, it is still nonsense.

The Cathaoirleach obviously ruled the Minister was wrong on this. However, he made another ruling regarding an amendment of mine which I believe was wrong. Given that Senator Ryan's amendment was allowed, I am astonished my amendment was disallowed. I believe that was wrong and I will write to the Committee on Procedure and Privileges on the matter.

This section deals with the use of telephone instruments and machinery for sending offensive messages. It concerns the relationship between the telephone messenger and the receiver and the nature of those calls. That places a whole area as the proper subject of the Bill. My amendment concerned a common practice used by various agencies, including State agencies. When one telephones them, and after they have delayed one for 15 minutes with their music, announcements and menu of choices, one is informed that the call may be recorded for the purposes of training. My amendment proposed to remove that right. It could not be more directly germane to this section. It is exactly in the same area as Senator Ryan's amendment. I am astonished it was ruled that it was outside the scope of the Bill. I am here to protest about the ruling out of order of my amendment and to ask the Minister of State to examine this. Communications on the part of an individual citizen should not be subject to violation in the commercial interests of companies. This is a principle the Minister of State should sustain. Although I have been improperly denied the opportunity to place this amendment before the House, I ask the Minister of State to reply to this.

Ms Terry

I support Senator Ryan's relevant amendment that reflects modern communications systems. Legislation needs to be kept up to date to reflect modern telecommunication systems available to us. Nearly everyone, particularly young children, possesses a mobile telephone. The Irish are supposedly the greatest users of text messaging in the world. Nearly everyone is capable of sending electronic mails.

I was once the victim of an individual, inadvertently, sending me an e-mail about me that I was not supposed to see.

Mr. Leyden

Was it a positive e-mail?

Ms Terry

No, it was not positive. The sender concerned could be in some difficulty if I were to pursue a case. Such actions must be covered in this legislation. If the Minister of State does not agree to the amendment, what recourse has an individual if he or she receives obscene or abusive text messages or e-mails? Certainly the legislation does not reflect those two modes of communication which are being used extensively. We need to hear from the Minister how an individual can cope with this type of nuisance calling. If he cannot answer that, it means the amendment should be accepted.

Mr. Fitzgerald

I listened very carefully to the points being made by the previous speakers. On the one hand there is a deep and serious validity to what they have said. I would agree with 99% of what I have heard in terms of the abusive content of messages being exchanged and the vulnerability of young and older people to harassment and intimidation and all kinds of illegal, immoral and unacceptable activities. Nevertheless a distinction must be drawn between the purpose of the Bill, which is to deal with the provision of services, and the issue raised by Senators of the content of messages. If messages are criminal in nature, are deemed to be so or are decided to be so by the Houses of the Oireachtas, such issues are appropriate for the Department of Justice, Equality and Law Reform and not for this Department. The intent of the Bill makes that clear. I do not see any role or purpose for it within the context of this Bill. Nevertheless, Senators have raised a valid point and it should be conveyed to the Department of Justice, Equality and Law Reform.

Mr. J. Browne

It is not proposed to accept this amendment. The purpose of amending the Post Office (Amendment) Act 1951 was to increase fines to deter nuisance calls to the emergency call answering service, ECAS. The change proposed by the Senators is a wider offence and I understand from the debate on Tuesday that they are particularly concerned about tackling cyber bullying. The issues were raised again today by the Senators. This type of regulation falls outside the remit of the Bill. The sole intention of this provision is to address nuisance calls to the emergency services. I have listened carefully as did the Minister, Deputy Noel Dempsey, to the points raised by the Senators. The purpose of the Bill is to deal with the regulation of a service. The areas raised by the Senators would be more appropriate to the Department of Justice, Equality and Law Reform.

To respond to Senator Terry, it is an offence under section 10 of the Non-Fatal Offences against the Person Act 1997 to harass a person by use of any means, including by use of a telephone. Therefore, the issue is already dealt with to a certain extent.

Mr. Ryan

It is not.

Mr. J. Browne

I share the concerns raised by Senators about cyber visual bullying, which is a concern with the public. Unfortunately, the Bill deals with the regulation of a service. Many of the issues raised by the Senators to combat the offences raised do not always fall under the remit of our Department and are more appropriate to the Department of Justice, Equality and Law Reform. Certainly I will bring them to the attention of that Department.

Mr. Norris

What about the question I raised about recording calls?

Mr. Ryan

Dealing with Committee or Report Stages of a Bill can be either one of the most worthwhile parts of a Member's time or among the most frustrating. The most frustrating is when one gets nonsense being parroted by Ministers who obviously refuse to engage with the issue. Harassment is defined as multiple activities. The section of the Post Office (Amendment) Act 1951 referred to deals with individual activities. Harassment does not cover what we are talking about. It is appalling to say that only if one receives multiple text messages is there any legislative protection. If somebody telephones me to say my mother is dead, that is an offence under the legislation and correctly so, but if somebody sends me a text message to say my mother is dead, apparently that is a joke, or it is not sufficiently significant that the Government would even temporarily accept the amendment. It could accept it. It is only a redefinition of telephone. I have seen legislation come through the House which defined a crossbow as a firearm for the purposes of legislation.

Please do not tell me about the scope of Bills and so on. The Cathaoirleach has accepted this amendment as coming within the scope of the Bill. What the Attorney General is saying is that he knows better than the Cathaoirleach of Seanad Éireann. If I have to choose between the Attorney General and the Cathaoirleach, I know whom I would choose——

Mr. Norris

It would be on a different basis.

Mr. Ryan

No, it would not.

Mr. Norris

Very good.

Mr. Ryan

I have very little evidence of the Cathaoirleach being wrong as frequently as various Attorneys General have been. We already have a section in place. Harassment is a smokescreen and is misleading. The story is that it is only about the emergency services, which is an important fact, but the section of the Post Office (Amendment) Act 1951, as amended, will read:

Any person who—

(a) sends by telephone any message that is grossly offensive, or is indecent[.]

That has nothing to do with the 999 call-out service. That is about any person who sends anybody a message. I accept that the penalties are being amended but that is what the section is about.

The Government is refusing to redefine a message by telephone to include the two single most widely used forms of communication, e-mail and text messaging, both of which rely on the telecommunications system. These are two forms of abuse carried out through the telecommunications system which are of general concern to people, especially young people, neither of which the Government is prepared to make illegal because somebody somewhere in the depths of the Attorney General's office, who is probably barely aware of the existence of e-mails and so on, decided to leave it out. There is no other reason. It is because somebody who was drafting the Bill did not feel comfortable with the issues of e-mails and text messages that he or she left them out. It is perfectly reasonable to see the same hand behind that and this extraordinary attempt to give the Minister powers by decree to impose fines through the courts of up to €4 million. It is an entirely spurious reason which is being given not to do something simply because they do not want to do it.

Mr. J. Browne

Obviously the Minister did give the matter careful consideration but he has no authority or responsibility for content, whether by telephone or otherwise. This is a matter for the Department of Justice, Equality and Law Reform.

Mr. Ryan

That is not true.

Mr. J. Browne

Legislation is in place already to deal with this issue, as directed by the Department of Justice, Equality and Law Reform.

Mr. Ryan

That is simply not true.

Amendment put and declared lost.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Fitzgerald

I thank the Minister of State for his time and I thank the Minister, Deputy Noel Dempsey. I understand, although I was not present, that despite the disappointment expressed by certain Senators, some amendments were accepted. I reiterate what Senator Kenneally said on Second Stage, namely, that this is a very important Bill, notwithstanding what certain people see as shortcomings and which they have identified today. It will be an effective legislative mechanism, some of which is by regulation, to enable ComReg to deal with a rapidly changing industry where technology literally changes every day.

Ms Terry

On my own behalf and that of Senator Finucane, who has dealt with the Bill and who could not be here this morning, I thank the Minister of State and his staff for the work they have put into this Bill. As was evident today, there are a few areas which could have been improved upon, but, generally, it is a very good Bill that will bring regulation into the market for ComReg to deal with issues as they arise. Anything that strengthens the market is to be welcomed. This work was needed for the market, which is changing by the day. I welcome the Bill and believe it will be very useful.

Mr. Ryan

This legislation contains a considerable amount that is good. I hope ComReg might be able and willing to use the powers it has to defend consumers against fairly powerful and predatory multinationals in particular. However, I again regret that the opportunity to protect our children, in particular from the abuse that can accompany e-mails and text messaging has been abandoned. I find it slightly ironic that a Government that is transfixed by a constitutional amendment to protect our children cannot do the little things that would help to deter those who would bully our children electronically.

Minister of State at the Department of Communications, Marine and Natural Resources (Mr. Browne)

I thank the Senators for their interest in and contributions to the Bill. As Senator Fitzgerald said, some of the amendments that made improvements to the Bill came from Senators. I am sure they will agree that this legislation is vital to the future of the communications sector in Ireland and that its provisions will promote competition in the sector to the benefit of consumers. I also thank officials from our Department for the efficient way in which they worked and their advice and support.

Question put and agreed to.