knowledge 1 March 2021 |

Content Regulation Update for Online Intermediaries: The Harassment, Harmful Communications and Related Offences Act

Background

Prior to the introduction of the HHCA, persons sharing or publishing intimate images without the subject’s consent could not be held criminally liable under Irish law, except under limited child protection legislation.  Following recommendations in the Law Reform Commission Report on Harmful Communications and Digital Safety (2016),¹ the HHCA has now introduced fines and custodial sentences for the non-consensual recording, distribution or publication of “intimate images” of another person and related offences. 

Sharing of Intimate Images

It is now an offence under Irish law for a person to record, distribute or publish an intimate image of another person without that other person’s consent.  Any person found guilty of this offence is liable to receive a fine and/or a maximum sentence of up to 12 months in prison (section 3).  This is a strict liability offence and the person (or body corporate) does not need to have intended to cause harm.  It is sufficient that the recording, distribution or publication of the intimate image has seriously interfered with the other person’s peace and privacy or caused them harm, alarm or distress.  The Act also makes it clear that the concept of “harm” includes psychological harm.

Where the intimate image is published, distributed or there is a threat to do so without consent and with intent to cause harm (or with recklessness as to whether harm is caused), the perpetrator may receive a fine and/or up to 7 years in prison (section 2).  For the purposes of the Act, a person intends to cause harm who “intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person” where a “reasonable person” would realise that their acts would have such an effect. 

The definition of “intimate image” encompasses “any visual representation (including any accompanying sound or document)” relating to a person, made by any means “including any photographic, film, video or digital representation” of the intimate nature described in section 1. 

Significantly, the publication or broadcasting of any information likely to lead to the identification of victims or alleged victims of these new offences, in circumstances where the perpetrator has been charged under the Act, is also an offence punishable by a fine and/or a maximum sentence of up to 12 months in prison (section 5). 

Threatening and Grossly Offensive Communications

In addition to tackling the sharing of intimate images, the HHCA addresses threatening or grossly offensive communications.  The HHCA makes it an offence to distribute, publish or send any threatening or grossly offensive communication about or to another person, with intent to cause harm.  Those found guilty of this offence are liable to receive a fine and/or a maximum sentence of up to 2 years in prison (section 4).  This offence applies to all types of communications, both online and offline and, unlike the offence of harassment (discussed below), it criminalises the sending of a once-off threatening or grossly offensive message intended to cause harm. 

The HHCA does not define what constitutes a “grossly offensive” communication. 

A similar UK provision, which criminalises inter alia sending an electronic communication which is “indecent or grossly offensive”, has been interpreted by the UK’s Crown Prosecution Service to cover communications which are more than “offensive shocking or disturbing” or “satirical, iconoclastic or rude comment”, or “the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it”.² It remains to be seen whether the Irish courts will be influenced by the UK’s approach or if they will interpret a wider range of communications under the HHCA as “grossly offensive”.   

 “Harassment” definition widened

In addition to the new offences outlined above, the HHCA extends the scope of harassment under section 10 of the Non-Fatal Offences Against the Person Act 1997 to include indirect communications ‘about’ someone.  Until now, to constitute harassment in Irish law the communications had to be ‘with’ the relevant person.  This amendment is consistent with the recent Supreme Court decision in DPP v Doherty³ which held that communications which are not directly addressed or sent to the subject of those communications but which are manifestly for the victim’s eyes, could constitute harassment under Irish law. 

Implications of these new offences

It has become commonplace to see offensive and often fairly brutal commentary directed at individuals on social media, particularly women in the public eye.  Anyone now engaging in that type of behaviour faces a potential criminal prosecution, although the question of what constitutes a grossly offensive communication will fall to be assessed by the courts on the facts of any given case.  It remains to be seen how the balance will be struck in practice and social media platforms are likely to be central to the operation of this new regime to regulate hate speech. 

Also contributed to by Sean Kehoe.