The long-awaited Harassment, Harmful Communications and Related Offences Act 2020 (“the Act”) commenced on 10 February 2021. The Act introduces some significant changes, including creating two separate image-based criminal offences and one of offensive communication. It also broadens the scope of the existing offence of harassment. The changes under the Act are welcome. Prior to its commencement there was virtually no criminal liability under Irish law for persons sharing or publishing intimate images of another person without consent.
The Act gives effect to proposals made by the Law Reform Commission in their 2016 Report on Harmful Communications and Digital Safety. That Report identified negative aspects which have come with the revolution in digital media, including the increase in intimidating and threatening online messages and intentional victim-shaming of individuals. In recent years, continued pressure on the Irish Government to tackle image-based sex abuse has come from different sources, including a number of high-profile cases reported in news media, online petitions to criminalise acts of “revenge-porn”, and petitioning by victims or their families.
Intentional or Reckless Image-Based Offence
The first new image-based offence, under Section 2 of the Act, deals with the intentional victim-shaming behaviour of posting “intimate images” without consent. A definition of what constitutes an “intimate image” can be found here and includes a video or digital representation. It provides 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. The offending person must have intended or have been reckless as to whether the acts would seriously interfere with the peace and privacy of the other person or cause the other person harm (including psychological harm), alarm or distress. The maximum penalties for this offence for conviction on indictment are up to 7 years’ imprisonment and/or an unlimited fine.
Strict Liability Image-Based Offence
The second new image-based offence, under Section 3 of the Act, also deals with posting intimate images but this is a strict liability offence. This means, a person who records, distributes or publishes an intimate image of another person without consent does not need to have had the intention to cause harm. By way of example, this means even an act of sharing an “intimate image” of another person, by forwarding a multimedia message to a group of friends or posting on a social media platform could constitute an offence under Section 3 of the Act, irrespective of whether harm was intended. The maximum penalty for this offence on summary conviction is 12 months’ imprisonment and/or a €5,000 fine.
The Act also provides anonymity for alleged victims of the above offences, and any person who publishes or broadcasts information likely to enable the identification of the alleged victim, is also guilty of an offence.
This new offence, under Section 4 of the Act, 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. 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 to cause harm, will be guilty of an offence. This includes once-off acts. This is another welcome change, in a culture where it is becoming commonplace to see offensive messages and communications circulated on social media platforms by so-called “trolls” or “keyboard warriors”. The maximum penalties for this offence for conviction on indictment are 2 years’ imprisonment and/or an unlimited fine.
Broadening the scope of Harassment
In addition to the other changes, the offence of harassment under the Non-Fatal Offences against the Person Act 1997 has been amended to deal with persistent communications “about” a person. The offence of harassment already applied to direct harassment of a person “by any means” but not indirect harassment of a person. The offence did not clearly address other forms of online harassment about a person, such as posting fake social media profiles. The Act has now clarified that communications “with or about” a person will now be captured under scope of Harassment. In addition to this, the maximum penalty for that offence is increased from 7 to 10 years’ imprisonment.
Liability of Directors and Officers
Body corporates should be aware Section 6 of the Act provides for the liability of a body 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 may be liable to conviction under the Act.
The changes under the Act are welcome and fill a number of gaps by providing a legal framework to tackle a toxic social media culture of posting or sharing harmful content where no repercussions previously existed. It is hoped the Act will significantly change this culture of image-based sexual abuse and cyberbullying and encourage those to think twice before pressing the “send” button.
For further information on any of the issues raised above, please contact Laura O'Farrell, Solicitor in our Commercial and Business team.Back to Full News
Share this article:
About the Author
Laura is a solicitor in the Commercial & Business team at Hayes Solicitors. She practices in commercial litigation and dispute resolution and acts for a variety of companies, financial institutions, State bodies and individuals in contract law cases, enforcement and recovery actions and general commercial litigation matters. Laura also provides advice on a wide range of commercial and business law matters and regulatory requirements including data protection law and reviewing and drafting commercial contracts.