The Law Reform Commission has recently published its Report on Harmful Communications and Digital Safety. The Report forms part of the Commission’s Fourth Programme of Law Reform and contains 32 recommendations for reform. The Report includes a draft Harmful Communications and Digital Safety Bill intended to implement these reforms.
The Report notes that the revolution in telecoms and digital media has brought enormous positive benefits, because it has facilitated a new form of online and digital consumer society and also allowed us to participate on a national and international level in civic society and in public discourse generally.
It goes on to cover the fact that this however has given rise to some negative issues including the intentional victim-shaming of individuals sometimes referred to as “revenge porn”, intimidating and threatening online messages directed at private persons and public figures and a new type of voyeurism, sometimes referred to as “upskirting”.
It also references the fact that there have been many instances of online and digital harassment and stalking.
The press release/announcement includes details of proposed criminal law reforms – the enactment of 2 new criminal offences to deal with posting online of intimate images without consent:
- The first is to deal with the intentional victim-shaming behaviour of posting intimate images without consent, often done after a relationship has broken down (so-called “revenge porn”)
- The second new offence also deals with posting intimate photos or videos and is to deal with a new type of voyeurism, often called “upskirting” or “down-blousing.
The Report recommends reforms of the existing offence of harassment, to ensure that it includes online activity such as posting fake social media profiles; and that there should be a separate ofence of stalking, which is really an aggravated form of harassment and reform of the existing offence of sending threatening and intimidating messages, again to ensure that it fully captures the most serious types of online intimidation.
It is recommending that there is a statutory Digital Safety Commissioner, modelled on comparable offices in Australia and New Zealand to promote digital safety, including an important educational role to promote positive digital citizenship among children and young people, in conjunction with the Ombudsman for Children and all the education partners.
The Report recommends that the Digital Safety Commissioner’s role would also include publication of a statutory Code of Practice on Digital Safety. This would build on the current non-statutory take down procedures and standards already developed by the online and digital sector, including social media sites. The Code would set out nationally agreed standards on the details of an efficient take-down procedure.
Under the proposed statutory system, individuals would initially apply directly to a social media site to have harmful material removed in accordance with agreed time-lines: this is similar to the statutory system in place in Australia. If a social media site did not comply with the standards in the Code of Practice, the individual could then appeal to the Digital Safety Commissioner, who could direct a social media site to comply with the standards in the Code. If a social media site did not comply with the Digital Safety Commissioner’s direction, the Commissioner could apply to the Circuit Court for a court order requiring compliance.
There are a number of other recommendations that you can read in the release about the report.
One particular area that concerns me as a parent (a minor in my own family has been impacted by online harrassment which did not lead to prosecution of those involved) is that there is a proposal that there is no prosecution for the offences discussed in the Report against children under the age of 17 except by or with the consent of the Director of Public Prosecutions. They state that this reflects the Commission’s view that, in the case of children and young people, the criminal justice process should be seen as a last resort and only after other responses, such as education or suitable diversion programmes, have been applied.
The reality is that education about online reputation and communications is currently failing to protect our young people. Further more, the law enforcement officers that are called into preliminary investigations are not sufficiently educated in relation to how digital communications and social media works. The young people who are bullying, harassing and even getting involved in grooming other youngsters are running rings around the authorities.
It is not clear what the next step is in relation to the report. Clearly there are many knowledgeable minds that have been involved in the development of the paper and even a consultation group of young people contributed to the report as you can see from the appendix. But I have to wonder if the experience of parents, guardians and young people and will it actually provide sufficient protection for our young people online?