The Harassment, Harmful Communications and Related Offences Act 2020: An overview
1 February 2021
The law concerning online harassment in general, and the non-consensual sharing of intimate images via the internet in particular, has been the subject of considerable focus in recent times. News stories concerning the disclosure of intimate photographs of Irish women on the internet without their knowledge or consent have been followed by the recent enactment of the first piece of legislation to deal specifically with such behaviour online – the Harassment, Harmful Communications and Related Offences Act 2020(the “2020 Act”) – which was enacted just before Christmas 2020, and commenced in early February 2021.
Background to the 2020 Act
While they may have been perceived as unsatisfactory and cumbersome, there were criminal remedies available which pre-date the internet age, and these were indeed used to prosecute some of the very crimes now provided for by the 2020 Act. Section 10 of the Non-Fatal Offences Against the Person Act 1997 provided, and continues to provide, for the general offence of harassment. This will be committed by a person who “without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her.” This very provision was very recently used to prosecute a Tralee youth who had been accused of sending offensive communications via Instagram to English footballer Ian Wright.1 It was also used in May 2018 when a man was convicted of the online harassment of RTE television presenter Sharon Ní Bheoláin.2
There was some suggestion around the time of the enactment of this legislation that there had previously been no remedy available in this jurisdiction for victims of image-based abuse or revenge porn. This is simply not correct. It is true to say that there is no tort of harassment in this jurisdiction, and it is an offence which can only be prosecuted through criminal proceedings. That is not to say, however, that there are no civil remedies available to victims of harassment, and such remedies will be discussed separately in a future article.
Furthermore, section 45(3) of the Criminal Law (Sexual Offences) Act 2017 provides that a “person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence.” This provision was recently utilised to charge an American Tourist for the offence of “upskirting” at the Pride Parade in Dublin in the summer of 2019, when he placed his camera under the skirt of a woman attending the march and took a photograph. The man in question received a two-month sentence.
Types of behaviour caught by the 2020 Act
Online harassment takes many forms, some of which are specific to the internet. The classic form of online harassment is that which echoes the behaviour described in section 10 of the 1997 Act, and could be performed by repeatedly texting, emailing and sending social media messages to a victim. This is very often performed in conjunction with more traditional methods of communication, and possibly even physical besetting. Other specific types of harassment include:
Revenge Porn – the non-consensual sharing of content which had previously been consensually shared between people who were in an intimate relationship, with the intention of harassing and humiliating the victim.
Sextortion – the non-consensual sharing of content for the purposes of extorting a financial benefit from the victim by releasing, or threatening to release, the material online.
Trolling – the practice of posting insulting or inflammatory material online about a person, sometimes as a result of something said or done by that person, but often for no specific or discernible reason.
Online identity theft – in one form of online identity theft, a person’s social media account is hacked by someone, who then posts content purporting to come from its rightful owner, usually in an effort to embarrass or humiliate them. This is commonly known as ‘fraping’. Another method of misappropriating someone’s identity does not involve the hacking of an existing account, but rather the creation of a new account. This is known as ‘catfishing’.
Upskirting – the surreptitious taking of photographs of a person’s underwear, most commonly in a public place, with the resultant images often uploaded to the internet.
The main provisions of 2020 Act
The offences created by the Act are contained in sections 2, 3 and 4. Sections 2 and 3 relate to the distribution of images, while section 4 pertains to the distribution of text-based communications.3 An intention to cause harm is required for sections 2 and 4, but intent is not a necessary ingredient for a section 3 offence to be committed. While the mens rea of the section 2 offence includes both intent and recklessness, section 4 makes no reference to recklessness. And while the question of intent requires both a subjective and objective assessment in section 2, the test appears to be entirely subjective under section 4.
Section 2 offence: Section 2 deals with the publication of material without consent, but with intent to cause harm, or recklessness as to whether harm would be caused, as an essential ingredient. The basic offence is described thus:
(1) A person who distributes, publishes or threatens to distribute or publish an intimate image of another person
(a) without that other person’s consent, and
(b) with intent to cause harm to, or being reckless as to whether or not harm is caused to, the other person,
is guilty of an offence.
Under sub-section 2, the test as to whether harm is caused involves both a subjective and objective evaluation; ie. did the perpetrator intend to cause harm, and would a reasonable person believe that harm would be caused? This reflects the mens rea test for harassment under section 10(2) of the Non Fatal Offences Against the Person Act 1997. It appears designed so that “overly-sensitive” victims cannot claim to have been harmed, in circumstances where a person of reasonable fortitude would perhaps have been unaffected by the behaviour in question.The offence will typically be committed when a person shares an image of someone who is known to them, with the intention of causing harm to that person, and is designed to catch the type of behaviour commonly referred to as “revenge porn.” The offence under section 2 carries a maximum sentence of 7 years on indictment.
Section 3 offence: Section 3 deals with the offence of recording an intimate image without consent, though this offence may also be committed by simply distributing or publishing the image). It leaves out, however, the requirement for any intent to cause harm on the part of the perpetrator. A section 3 offence, therefore, is one of strict liability. The offence is described in the following terms:
(1) Subject to subsection (2), a person is guilty of an offence where—
(a) he or she records, distributes or publishes an intimate image of another person without that other person’s consent, and
(b) that recording, distribution or publication, as the case may be, seriously interferes with that other person’s peace and privacy or causes alarm, distress or harm to that other person.
This section is presumably intended to deal with behaviour which is considered less serious than that covered by section 2, typically where there is no previous relationship between the victim and the person taking the image, and would include such offences as the taking of indecent images purely for the benefit of the person taking them. Such behaviour is often conducted in public, and commonly described in terms of “upskirting” or “downblousing”. For an offence to be committed under section 3, the requirement for a reasonable person to believe that harm would be caused is not included, meaning that harm will presumably be assessed purely from the subjective view of the victim. Unlike section 2, this offence may only be tried summarily, and carries a maximum sentence of 12 months.4
Section 4 offence: Section 4 of the Act provides for the offence of distributing or publishing grossly-offensive communications, and provides that:
(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.
This offence can be distinguished from those created by sections 2 and 3 in that it deals purely with “communications”, rather than images. It will, therefore, cover emails, tweets, text messages and blog posts which are designed to harass and cause distress to the victim, but which would previously have had to be prosecuted under section 10 of the 1997 Act.
A significant aspect of this section are that it provides for such communications to be “about” the other person, rather than specifically directed towards them, meaning that harmful material generally uploaded to the internet will fall foul of section 4. Furthermore, there is no requirement of “persistence”, meaning that the publication of a single communication will complete the offence.
It is notable that unlike the section 2 offence, the question of intent in a section 4 offence is dealt with only from the perspective of the offender. Section 4(2) of the 2020 Act does not include the requirement that a reasonable person would believe that the behaviour had caused harm to the victim, which would appear to create a danger that unmeritorious complaints may be advanced, although the threshold of harm required to ground a section 4 offence will, of course, develop over time.
Section 4 offences may be tried summarily or on indictment, with a summary conviction providing for a sentence of up to six months, while a conviction of indictment providing for a maximum sentence of two years.
Section 11 and the offence of “Harassment”: While much of the discussion about the 2020 Act has concerned its provisions in respect of harmful online material, it should be noted that the Act also includes important amendments to the general offence of harassment under section 10 of the 1997 Act. As well as increasing the maximum sentence on indictment from 7 to 10 years, two further issues surrounding the section 10 offence are worthy of consideration.
Firstly, the 1997 Act previously defined harassment as occurring when a perpetrator communicated “with the other person.” This created uncertainty as to whether the offence was committed when the perpetrator uploaded material to the internet, which harassed the victim and was generally viewable by all internet users, but was not technically a direct communication with the victim. This provision is amended by the 2020 Act so that the communication can be “with or about” the other person, which would appear to cure this potential difficulty. The requirement of “persistence” in section 10 of the 1997 Act, however, has been left undisturbed by section 11 of the 2020 Act, presumably on the basis that section 4 of the 2020 Act already allows for the prosecution of single communications.
Both of these perceived issues with the 1997 Act were considered by Charleton J in the recent Supreme Court decision of DPP v Doherty [2020] IESC 45. It is significant that he disagreed that the offence was committed under the 1997 Act only if the communication was specifically directed at the victim, or that persistence required several individual acts to be committed.5 On this basis, it may be likewise held that a single post which remains on the internet for a period of time may also be held to constitute a “persistent interference”, and therefore fall foul of section 10 of the 1997 Act. As a result, it would appear that a perpetrator could potentially be tried for the same offence under section 4 of the 2020 Act, which carries a maximum sentence of two years, and section 10 of the 1997 Act, which carries a maximum sentence of 10 years.
Protection of Privacy: Section 5 of the 2020 Act proposes to safeguard the privacy of the complainant by introducing provisions similar to those contained in section 7 of the Criminal Law (Rape) Act 1981, preventing the publication of the identity of the complainant after a person had been charged with an offence under the Act. This provision provides for an exception to the general requirement under Article 34.1 of the Constitution that justice be administered in public. It will provide comfort to those complainants who may have been deterred from coming forward due to the likelihood of having to publicise the existence of the very material in question. Section 5 makes it an offence to publish any information which would be likely to enable the identification of the victim, and provides for a maximum sentence of three years for any person committing the offence.
Consent of DPP: Section 8 provides that the consent of the DPP shall be required in order to bring proceedings under this Act against anyone under the age of 17, notwithstanding the rule under s.52(4) of the Children Act 2001 that such consent is generally required for children under the age of 14. This is consistent with s.8(3) of the Criminal Law (Sexual Offences Act) 2017, which pertains primarily to the sexual exploitation of children, and reflects the policy of not criminalising the practice of “sexting” which often occurs consensually between teenagers.
Liability of directors and officers of corporate bodies: An interesting provision of the 2020 Act is contained in section 6, which provides for the above liability in circumstances where an offence is committed by a body corporate either with the consent of, or through the “wilful neglect” of, an officer of the body corporate.6Of interest in this section is the question of whether it may be used against an online intermediary which has facilitated the offence being committed, on the basis that they may have “published” the material themselves. While platforms such as Facebook and Twitter have long resisted attempts to label them as publishers of their users’ material, it is conceivable that if they fail to remove material from their platforms which may reasonably be viewed as unlawful, then both the platform itself, and its officers or members, may be prosecuted under this section. It is unlikely, however, that the Statute will be used in this manner, as separate legislation concerning the regulation of social media platforms is planned under the Online Safety and Media Regulation Bill.
Summary
Harmful online content is a fact of modern life. In the pre-digital world, if members of the public wished to have their opinions shared with the outside world, they would ordinarily have to write a letter to a newspaper, or contribute a comment to a radio or television broadcast, all of which would be subject to supervision and editing by the media organisation before it would be published. Social media, however, has allowed for publication of content that it not only instantaneous, but is also unfiltered and uncensored. Everyone can now be a publisher.
The ongoing Covid-19 pandemic has resulted in ever-increasing use of the internet as a means for people to communicate, shop and conduct business, with all social media platforms announcing growing user numbers and, as a result, increased earnings.7 With greater usage, of course, comes more harmful content, with new instances of online harm making the news on a regular basis.
The long-mooted Harassment, Harmful Communications and Related Offences Act 2020 is most welcome, providing as it does some much-needed clarity in this area of law. While the HHRCO Act does not, in reality, create any offences that could not have been prosecuted by previous legislation, its online focus perhaps finally signals an acceptance that legislation born of pre-internet times sits uneasily with the myriad of ways in which harm can now be caused via online platforms.
Ends.
1 https://www.irishtimes.com/news/crime-and-law/courts/district-court/kerry-teen-who-racially-abused-footballer-ian-wright-escapes-conviction-1.4475108
2 https://www.irishtimes.com/news/crime-and-law/courts/circuit-court/man-jailed-for-harassing-rté-newsreader-sharon-n%C3%AD-bheoláin-1.3499064
3 An important difference with the 2017 Bill as initiated is that section. 2 of that Bill had amalgamated the offences of sharing distributing images without consent – typically ‘revenge porn’ – and taking images without consent – typically ‘upskirting’ or ‘downblousing’ – into one provision. Under the 2020 Act, however, there are two separate provisions, which more accurately reflect the LRC’s Bill published in 2016
4 Under section 7 of the 2020 Act, summary proceedings must be instituted within 2 years of the date on which the offence was committed.
5 DPP v Doherty [2020] IESC 45. Charleton J held at par 24 that “Reverting to plain meaning and ordinary usage, communicating with someone means that some information is made common as between the person communicating and the person communicated with. This does not necessarily require the victim to be directly addressed. But according to the submissions on behalf of the accused, this is not enough. Communication is not just sharing information, it is required, on the accused’s argument, to be direct as otherwise it is not the offence of “harassment … by … communicating with” the victim. This would be to introduce a meaning far removed from the statutory intent and the common sense meaning of the words used.”
6 This section is drafted in similar terms to s. 9 of the Criminal Justice (Offences Relating to Information Systems) Act 2017, which updated the law relating to theft, fraud and hacking performed via the internet. While the 2017 Act, however, requires the offence to be committed “for the benefit of a body corporate”, the 2020 Act does not, and simply requires the offence to have been committed.
7 For example, in the last quarter of 2020, Twitter saw its number of active daily users increase by 5 million up to 192 million, leading to a 28% year-on-year increase in advertising revenue. Source: https://www.socialmediatoday.com/news/twitter-posts-record-revenue-result-in-q4-maintains-usage-growth/594824.