The Law Reform Commission (LRC) has published its Report on Harmful Communications and Digital Safety, which contains 32 recommendations for reform including a draft Harmful Communications and Digital Safety Bill intended to implement these reforms.
The backdrop to the Report is a new online world that, along with digital freedom, has brought some negative developments. These include engaging in online communications that can cause significant harm to others, such as by posting online intimate images without consent, the intentional victim-shaming of individuals and other forms of voyeurism that involve gross breaches of the right to privacy. In addition, there have also been many instances of online and digital harassment and stalking, which also mirror to some extent the pre-digital versions of these harmful behaviours. The Report contains recommendations to reform both the criminal law – which already addresses some, but not all, of these harmful communications – as well a new statutory national oversight system that would promote and support positive digital safety.
The Report recommends the enactment of two new criminal offences to deal with the 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, otherwise known as ‘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 ‘up-skirting’ or ‘down-blousing’.
The Report also 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 offence of stalking, which is seen as an aggravated form of harassment. The Report further proposes 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.
The LRC emphasises the need to establish a statutory Digital Safety Commissioner, modelled on comparable offices in Australia and New Zealand. The Commissioner’s general function would be to promote digital safety, including an important educational role to encourage 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.
Click here for the LRC’s full list of recommendations in its Report on Harmful Communications and Digital Safety.