Harassment
2020 Legislation
The Harassment, Harmful Communications and Related Offences Act 2020 creates new offences in relation to harassment and harmful communications, both online and offline. The Act provides for two new offences to deal with the recording, distribution or publication of intimate images without consent and provides for the anonymity of victims of those offences.
The Act also provides for an offence involving the distribution, publication or sending of threatening or grossly offensive communications or messages with intent to cause harm without a requirement for persistence.
The offence of harassment was amended to deal with persistent communications about a person. The maximum penalty for that offence is increased from 7 years’ imprisonment to 10 years’ imprisonment to reflect the most serious forms of harassment.
Key Definitions
“Harm” includes psychological harm.
“intimate image”, in relation to a person, means any visual representation (including any accompanying sound or document) made by any means including any photographic, film, video or digital representation
- of the person’s genitals, buttocks or anal region and, in the case of a female, her breasts,
- of the underwear covering the person’s genitals, buttocks or anal region and, in the case of a female, her breasts,
- in which the person is nude, or
- in which the person is engaged in sexual activity;
This definition is important in the context of the two new offences to deal with the taking, distribution or publication of intimate images without consent. The word “representation” is used to ensure that where an image is altered or doctored to represent another individual (including his or her body parts), that this will still fall within the ambit of the offences.
Harassment
The Harassment, Harmful Communications and Related Offences Act 2020 amends the Non-Fatal Offences Against the Person Act 1997 with the intention of strengthening the offence of harassment contained therein. The amendment provides that harassment may be as a result of persistent communication with a person but also persistent communication about a person.
The maximum penalty for harassment has been increased from 7 years’ imprisonment to 10 years’ imprisonment to reflect the serious nature of harassment and the wide range of behaviours it represents.
The Minister for Justice is obliged to carry out a review of the operation of the Act within three years of the commencement.
Intimate Images Offences
A person who distributes, publishes or threatens to distribute or publish an intimate image of another person without that other person’s consent, and 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.
A person causes harm to another person where—
- he or she, by his or her acts, intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person, and
- his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other person’s peace and privacy or cause alarm or distress to the other person.
A person who is guilty of this is liable—
- on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both, or
- on conviction on indictment to a fine or imprisonment for a term not exceeding seven years, or both..
A person is guilty of an offence where—
- he or she records, distributes or publishes an intimate image of another person without that other person’s consent, and
- 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 does not apply to a person who distributes or publishes an intimate image for the purpose of the prevention, investigation or prosecution of this offence.
Offence Issues
A person who is guilty of an offence under this section is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months, or both.
The offence of recording, distributing or publishing an intimate image without consent is a strict liability offence. A person who records, distributes or publishes an intimate image without consent does not need to have a requisite intention to cause harm. It is sufficient that the taking, recording or distribution of the intimate image seriously interfered with the other person’s peace and privacy or caused them harm, alarm or distress.
he offence of distributing, publishing or threatening to distribute or publish an intimate image without consent with intent to cause harm or being reckless as to whether harm is caused is included in the Bail Act Schedule. This means that a member of An Garda Síochána may make an objection to bail under the 1997 Act in the case of a person who is remanded in custody for a the principal offence.
It is an aggravating factor for the purposes of sentencing a person for an offence of distributing, publishing or threatening to distribute or publish an intimate image without consent with intent to cause harm or being reckless as to whether harm is caused and recording, distributing or publishing an intimate image without consent if that person is the spouse or civil partner of the victim, or is or was in an intimate relationship with the victim.
Grossly offensive communication
A person who by any means distributes or publishes any threatening or grossly offensive communication about another person, or) sends any threatening or grossly offensive communication to another person, with intent by so distributing, publishing or sending to cause harm, is guilty of an offence.
A person intends to cause harm where he or she, by his or her acts, intentionally seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person.
The offence of distributing, publishing or sending a threatening or grossly offensive communication applies to any form of message or communication, both online or offline. It criminalises the once-off sending of a threatening or grossly offensive message where the person who is sending the message or communication intends to cause harm to the person who is the recipient of the message.
This offence is intended to deal with the most harmful forms of messages and communications, both online and offline, where there is a clear intent to cause harm. The maximum penalties for this offence for conviction on indictment are 2 years’ imprisonment and/or an unlimited fine.
Offence Issues
There is protections for the anonymity of victims of the offences of distributing, publishing or threatening to distribute or publish an intimate image without consent with intent to cause harm or being reckless as to whether harm is caused and recording, distributing or publishing an intimate image without consent. It is an offence where any person distributes or publishes any information that may lead to the identification of the victim of the offences.
A judge may, if it is in the interests of justice to do so, direct that certain information may be published or broadcast in such manner and subject to such conditions (if any) as he or she specifies in the direction. It shall be an offence if any person publishes or broadcasts any information in contravention of a direction
The maximum penalties for conviction on indictment for an offence under this section are up to 3 years’ imprisonment and/or an unlimited fine. It shall be a defence for a person to prove that he or she was not aware that the material they published or broadcast was material that was subject to the provisions of this section or a direction under this section.
The legislaiton provides for the liability of bodies corporate where an offence under the Act is committed with the consent or connivance of, or to be attributable to any wilful neglect of a director, manager, secretary or other officer of the body corporate. That person, as well as the body corporate will be liable to conviction under the Act.
The ordinary time limit for bringing summary proceedings of 6 months is increased to 2 years for a summary offence under the Act. This is in recognition of the fact that, where online communications are involved, evidence gathering can be time-consuming and such an extension is justified in the circumstances.
The Director of Public Prosecutions must consent to proceedings for an offence under this Act being taken against a child under the age of 17 years.
Civil restraint orders
Section 9 provides for civil restraint orders which provides that the Circuit Court may order, where it is in the interests of justice to do so, that a person shall not communicate with, or approach the place or residence or employment of the applicant.
It is an offence to fail to comply with such an order. The maximum penalty for conviction on indictment for an offence under this section is 2 years’ imprisonment and/or an unlimited fine.