Harmful Communications

Table of Contents

Intimate Images

An “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;

Distribute or Publish Intimate Image

It is an offence to distribute, publish or threaten to distribute or publish an intimate image without consent with intent to cause harm or being reckless as to whether harm is caused. This consent required is that of the person who is the subject of the image. Harm includes psychological harm.

A person who distributes or publishes the intimate image must have intended, or been reckless as to whether these acts would seriously interfere with the peace and privacy of the other person or cause the other person harm, alarm or distress.

Threatening to distribute or publish such an intimate image is also an offence.

The maximum penalties for this offence for conviction on indictment are up to 7 years’ imprisonment and/or an unlimited fine.

Recording, Distributing or Publishing

There is an an offence of recording, distributing or publishing an intimate image without consent. This is a strict liability offence as the 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. The maximum penalty for this offence on summary conviction is 12 months’ imprisonment and/or a €5,000 fine.

Threatening or grossly offensive communication

It is an offence to distribute, publish or send a threatening or grossly offensive communication. This offence 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.

Anonymity of Victim of Offence

There is 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 these 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.

Prosecutions

The ordinary time limit for bringing summary proceedings is extended for the above offences from 6 months to 2 years for a summary offences.

The Director of Public Prosecutions must consent to proceedings for an offence under this Bill being taken against a child under the age of 17 years.

An Garda Síochána may make an objection to bail in the case of a person who is remanded in custody for the principal offences under the Act.

Aggravating Factors

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.

Civil Restraint Orders

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.

Bail & Sentencing

The 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.