Harassment, Harmful Communications and Related Offences Bill 2017 (AKA Coco's Law)
First Stage: 16 May 2017
Oireachtas Link: https://www.oireachtas.ie/en/bills/bill/2017/63/?highlight%5B0%5D=harassment&highlight%5B1%5D=harmful&highlight%5B2%5D=communications&highlight%5B3%5D=related&highlight%5B4%5D=offences&highlight%5B5%5D=bill
Bill entitled an Act to amend the law relating to harassment; to provide for offences relating to the recording, distribution or publication of intimate images and to provide for the anonymity of victims of those offences; to provide for an offence involving the distribution, publication or sending of threatening or grossly offensive communication; and for those and other purposes to amend the Non-Fatal Offences against the Person Act 1997, the Bail Act 1997 and the Domestic Violence Act 2018; and to provide for related matters.
Second Stage: 18/12/2020
I thank my Independent Group colleagues, particularly Senator Craughwell, for swapping their time with the Labour Party Senators. In light of the unusual origins of the Bill, it is appropriate that the Labour Party would have the opportunity to lead for the Opposition on the Bill and I am delighted to do so.
I welcome the Minister of State to the House and I ask him to pass on our words of thanks to the Minister, Deputy McEntee, who has done so much to pilot the Bill through the Houses following its initiation in the Dáil three years ago by my Labour Party colleague, Deputy Howlin. I pay tribute to Deputy Howlin, who led on this issue from the start and initiated the legislation. His enormous contribution to law reform in this area has very fairly been acknowledged by all in the Dáil and in this House also. I am delighted to see that the revised explanatory memorandum published with the Bill this week recognises the role of Deputy Howlin and the fact that the Bill started as an Opposition Bill introduced by the Labour Party but has now been taken up by the Government through a constructive engagement process with Deputy Howlin and has been steered through the Dáil with support from all parties and Independents. I hope it will make similarly smooth progress, albeit with robust debate, in this House.
I also wish to pay tribute to the extraordinary campaigning work of so many whose lives have been so severely affected by the scourge of online abuse, digital bullying and so on. I refer in particular to Jackie Fox, the mother of Nicole Coco Fox Fenlon. Nicole, who was known by the nickname "Coco", tragically took her own life tragically in 2018 at the young age of 21 following years of being subjected to vicious abuse and bullying online. I again thank the Minister of State and the Minister for revising the explanatory memorandum. It states:
The content of this Bill is strongly influenced by persons who have lost their lives because of online abuse, in particular Nicole Fox. The Bill is in recognition of her mother’s determination to honour the memory of her daughter and to strengthen the law so that others can be safer. As a result this Bill can be referred to as Coco’s Law.
That is a really fitting way of marking the enormous contribution made to law reform by Nicole's mother and the other bereaved families who have lost young people to suicide, often as a result of serious online abuse and bullying. Deputy Howlin hosted an incredibly moving event outside Leinster House some months ago which I know a number of colleagues attended and at which we heard directly from Jackie Fox and other parents as to the seriously detrimental effect that online bullying had on their children and teenagers. That brought home to many of those present the very serious nature of this phenomenon and the need for law reform in this area. As I stated, Deputy Howlin pioneered this legislation and had originally introduced the Bill in 2017. Thanks to the galvanising of support from across the House and, indeed, thanks to the support of the Minister, Deputy McEntee, the Bill has been progressed much more swiftly in this Oireachtas term and for that I thank colleagues.
That is why, in the interests of seeing it passed into law now without further delay, we have listed it to be taken through all Stages today. That was by assent of all of us represented at a recent leaders and Whips meeting.
Many NGOs have also engaged very constructively with the process and are anxious to see the Bill become law. Safe Ireland sent us a very powerful email last night asking for the swift passage of this law with no further delay. I pay tribute to Safe Ireland, the Rape Crisis Network and all the other NGOs that have been so actively engaged in respect of the Bill, including the National Women's Council and Women's Aid, which have done great work to support survivors and victims of domestic abuse in recent months. Women's Aid and others are seeking further improvements to the Bill even at this late hour. However, I believe colleagues appreciate that there is an imperative to get the Bill passed in order to ensure that we have, for the first time, a robust legal framework to protect those who are suffering from online abuse and harassment, including the sharing of intimate images we have seen reported in recent months.
Once it is introduced, legislation is subject to amendment. I quote Deputy Howlin, who on this point on Report Stage in the Dáil yesterday stated:
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 ... New technologies will have to be addressed in the future.
The Minister of State referred to this as an evolving Bill, which is right. it provides us with a first robust statutory framework. Clearly, it needs to be built upon, as the Law Reform Commission pointed out in 2016, through the enactment of further legislation to deal with civil remedies relating to online abuse and harassment. That is clearly not being dealt with in this Bill, which is a criminal Bill, as Deputy Howlin pointed out. It will also need to be dealt with through other mechanisms beyond law reform, through, for example, education programmes and the establishment of awareness-raising programmes the Minister of State also mentioned. It will take further legislation to establish, for example, the digital safety commission that the Law Reform Commission called for in 2016.
Our priority today should be to get this Bill passed, but we recognise that further legislation will be required to deal with other aspects of online abuse and harassment. We are also cognisant that the Bill was amended quite extensively on Committee Stage and even on Report Stage in the Dáil. Yesterday, and I believe on Committee Stage, the Minister, Deputy McEntee, indicated that a justice (miscellaneous provisions) Bill will come before the Oireachtas next year and that any issues with this Bill could be addressed via that legislation. We are conscious that there is scope for further evolution of the law in the area, particularly in view of the speed at which technology is changing. Even in the three years since Deputy Howlin first introduced his Bill and the four years since the Law Reform Commission issued its important report on harmful communications and digital safety, we have witnessed extensive technological change and much greater pervasiveness of social media access by much younger teens. I speak as a mother of teenagers. We are all conscious that that has been a feature.
In previous debates, colleagues have mentioned the visible coarsening and degrading of discourse and abuse online that all of us have received as public representatives. In recent weeks just in respect particularly of our citizenship law and the Born Here, Belong Here campaign, I and other Labour representatives have received horrible abuse online. We are all aware of that. That has been a changing landscape which we need to navigate and address in our laws.
As Deputy Howlin has pointed out, this Bill is long overdue, even though we recognise that further evolution will be necessary. Some of the law it seeks to reform is half a century old, including the Post Office (Amendment) Act 1951 relating to communications. Even the much more recent Non-Fatal Offences against the Person Act 1997, which itself was a major consolidating piece of legislation, is now 23 years old and much has changed during that period.
I will speak briefly about the content of the Bill and how it is now coming to us. Essentially it seeks to address two different aspects of online abuse and harassment, first the sharing of intimate images and online sexual abuse we have seen reported on so widely recently. The non-consensual sharing of intimate images of women and girls has caused much alarm in recent months. That aspect of online abuse is dealt with in sections 2 and 3. These sections provide a clear framework for dealing with the more serious aspect, which is the intentional or reckless sharing or distribution of intimate images which carries a maximum penalty of seven years' imprisonment and is provided for in section 2. Because it is a more serious offence, it has a higher threshold to meet for prosecution. Having looked at it extensively, I think it fits within our criminal law framework adequately. Section 3 contains the less serious offence, which is a strict liability offence and does not require proof of intention or recklessness and therefore carries a lesser penalty. However, it also addresses the terrible harm of recording, distributing or publishing an intimate image without intent. That is a clear and robust scheme.
The second aspect of online harassment relates to the online bullying and harassment that does not involve the sharing of intimate images. That is dealt with through two provisions in the Bill. Section 4 creates the new offence of distributing, publishing or sending threatening or grossly offensive communication. This offence carries a penalty of two years' imprisonment. It is a crucial reform which is long overdue because it covers once-off abuse, the sending of a single abusive message which currently no law addresses. Importantly, section 10 updates the existing offence of harassment in section 10 of the 1997 Act. It expands the definition of that so that is not just communicating with somebody, but now crucially also communicating about them - the sort of horrible bullying we see taking place online where people are vilified through posts or messages to others. There is also an increase in the penalty from seven to ten years' imprisonment. That is a good scheme. We have two graded offences under each heading, under the heading of the sharing of intimate images and under the heading of more general online bullying and harassment.
Deputy Howlin spoke about the motivation in introducing the Bill. He said that the Bill is based on a fundamental view that the Internet and use of social media and online space generally is a public space and people who use that public space should be protected there and have their behaviour regulated in the same way that we regulate behaviour in a public street or a public park. Clearly, we must also be mindful of balancing protections against the right of free speech and free communication. We need to recognise the enormous benefits the Internet and social media platforms have brought us, but it is fair that we regulate that space, which is the purpose of the Bill.
The Bill also contains important safeguards such as the provision in section 8 that children can only be prosecuted with the consent of the Director of Public Prosecutions, which is right and proper. We are all mindful of the need to ensure a balancing of the more serious offences and a higher threshold.
We are anxious to have the Bill passed by both Houses before Christmas. We want to give relief, succour and reassurance to the many people, the women and girls, the teens and young adults who have suffered bullying and abuse online, who will continue to suffer from such bullying and who want to see, as their families do, some measure of redress and accountability for the perpetrators. In particular, they want to know that there is a robust legal framework to protect them. This Bill can provide that robust legal framework. On behalf of the Labour Party, I am delighted to speak in support of this legislation which we initiated. I ask colleagues across the House for their support. I thank the Cathaoirleach for the extra time he afforded me for my contribution.
Committee and Remaining Stages: 18/12/2020
I do not propose to speak at length on any amendments but just want to make a point on this group. To follow on from what the Minister of State said at the end of Second Stage, he was right to emphasise that the Bill is not flawed and does not require amendment. That is the view of the Labour Party which initiated this Bill and in the view of my colleague, Deputy Brendan Howlin, who steered through First and Second Stages through the Dáil. Second Stage was taken in the Dáil three years ago. I have his original draft with me. Deputy Howlin and the Labour Party group drew up the legislation on the basis of the report produced by the Law Reform Commission. There had already been extensive deliberation by the Law Reform Commission. The definition of an intimate image that was used in the initial version was then subject to redrafting in consultation with the Office of the Attorney General and the officials in the Department of Justice, whom I thank, and in consultation with Deputy Howlin who is the instigator of the Bill. It is on that basis that the Bill comes before us. I am conscious that Committee Stage was debated in the Dáil on 1 December and that Report Stage was debated yesterday.
There has been a good deal of debate on the definition of an intimate image and those offences are dealt with in sections 2 and 3. Obviously the intimate image definition is central to those offences but not to the later provisions in sections 4 and 10 on the more general points on the new offences of online harassment and abuse. The definition has been debated and has evolved over the course of the parliamentary process. All of us are conscious that it is a difficult area to get the balance right. There is clearly a concern about potential over reach. There is also a concern that we all have about ensuring that we legislate sufficiently to cover all relevant abusive behaviour. We must also be mindful that this Bill cannot do everything. It does not regulate online content more generally. It does not address the civil law aspect which requires a separate legislation. The report by the Law Reform Commission dealt with both criminal and civil aspects. This Bill only deals with the criminal aspects and it does not address other issues around the spread of misinformation by online communication. It does not address hate speech. We know there is separate legislation. Again, it is difficult to strike a balance around that or child sexual abuse imagery about which we already have legislation. I am cognisant of all that when debating these and other amendments.
The Labour Party and Deputy Howlin are happy with the Bill as it stands. As Deputy Howlin said, we recognise this is an evolving area and technology moves on. We are happy that there is a three-year review built into section 12. That should offer reassurance to colleagues and the NGOs which have concerns and which engaged so constructively with all of us. I have already paid tribute to the work of Women's Aid, Safe Ireland and others. With all of that in mind, we are happy to see the definition of intimate image in section 1. We are also happy with the provisions on the offences in sections 2 to 4, inclusive, and 10, and with the safeguards that are built in.
I do not propose to speak on individual amendments or groupings but I have make a general and crucial point about the amendment. We want to see a robust legal framework put in place before Christmas and I think that is what the NGOs want. It is certainly what Jackie Fox wants and what the campaigners who we have dealt with would like to see, and what my colleague, Deputy Howlin, has sought.
Other colleagues have made important points about the role social media platforms should play and the need to ensure there is a stricter regulation of their behaviour, and that they need to be doing more in this area. We are all cognisant of the importance of protecting victims against image-based sexual abuse, and against online bullying and harassment, both of which this Bill seeks to do. The Labour Party is happy with the Bill as it stands.