The Law Reform Commission has today published its long-awaited (pdf) a Report on Harmful Communications and Digital Safety (pdf). It contains 32 recommendations for reform, and includes a draft Harmful Communications and Digital Safety Bill to implement them. In my view, the most important recommendation is the proposal to establish a statutory Digital Safety Commissioner, modelled on comparable offices in Australia and New Zealand. The Commissioner’s function would be to promote digital safety, including an important educational role to promote positive digital citizenship among children and young people. The Commissioner’s role would also include publication of a statutory Code of Practice on Digital Safety, to set out nationally agreed standards on the details of an efficient take-down procedure. As the Law Reform Commission explains:

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.

The Commission also recommends two new criminal offences, and reforms of existing offences. The new offences relate to publication of intimate images without consent (revenge porn (section 4 below), upskirting and down-blousing (section 5 below)). The reforms relate to the existing offences of harassment, and of sending threatening and intimidating messages, in both cases to ensure that the relevant offences fully capture the most serious types of online harassment, stalking and intimidation. Reflecting a campaign that is gaining increasing momentum in the UK, the Commission also recommends that, in any prosecution for these offences, the privacy of the victim should be protected (but her or she should also be able to waive his or her anonymity). The details of the new offences in the draft Bill are as follows:

Distributing intimate image without consent, or threatening to do so, with intent to cause harm
4(1) A person commits an offence where he or she, without lawful authority or reasonable excuse and in the circumstances referred to in subsection (2), by any means of communication distributes or publishes an intimate image of another person (in this section referred to as the other person) without the consent of the other person, or threatens to do so.

(2) The circumstances are that the person who distributes or publishes the intimate material, or who threatens to do so, does so where—
(a) he or she, by his or her act or acts intentionally or recklessly seriously interferes with the other person’s peace and privacy or causes alarm, distress or harm to the other person, and
(b) his or her act or acts is or are such that a reasonable person would realise that the act or acts would seriously interfere with the other person’s peace and privacy or cause alarm, distress or harm to the other person. …

Taking or distributing intimate image without consent
5(1) A person commits an offence where he or she, without lawful authority or reasonable excuse and in the circumstances referred to in subsection (2), by any means of communication takes, or distributes or publishes an intimate image of another person (in this section referred to as the other person) without the consent of the other person.

(2) The circumstances are that the person who takes, or distributes or publishes the intimate material does so where he or she, by his or her acts seriously interferes with the other person’s peace and privacy or causes alarm, distress or harm to the other person. …

Read more, elsewhere

Revenge porn could be made criminal offence under proposal Commissioner could direct social media sites to comply and take down harmful material, by Colm Keena in the Irish Times [This is an important story; but I’m not sure about the appropriateness of the image with it though]

Law Reform Commission report: Issues of concern Commission notes Cyberbullying, catfishing, hate speech and pornography in document, by Colm Keena in the Irish Times

A sensible balance to protect against abuse The Law Reform Commission has a strong record of proposing practical solutions where there is a legal vacuum. These new proposals strike a sensible balance. Editorial in the Irish Independent

Tough new laws proposed to tackle revenge porn, harassment and cyber stalkers by Shane Phelan in the Irish Independent

In the sexting era, policing bad behaviour is tough While all of this may help, a lot more is needed. … Technology will always be ahead of the law. So too will our evolving behaviour. We can’t expect legal rules to fix human failings. by Adrian Weckler in the Irish Independent

‘There was nothing the guards could do for me’ – victim of revenge porn speaks out, and says today’s Law Reform Commission Report is an “amazing” step towards justice for victims, writes Daire Courtney in the Irish Independent

Up to seven years for cyber crime under new proposals for laws on ‘revenge porn’, welcomed by barrister and cyber crime expert, Pauline Walley, speaking on RTÉ’s Morning Ireland

Report recommends that ‘revenge porn’ and ‘upskirting’ are made criminal offences The Law Reform Commission also said that anonymous abuse and online stalking should be included as forms of harassment. on TheJournal.ie

New measures proposed to criminalise revenge porn, stalking and ‘upskirting’ Legal experts call for legislation to tackle unauthorised online posting of explicit images, on Newstalk

New laws to combat online abuse such as cyberbullying and revenge porn New criminal offences and a powerful oversight agency are being recommended to combat online abuse, such as cyberbullying and revenge porn, by Cormac O’Keeffe in the Irish Examiner

A digital safety czar and new laws could tackle ‘revenge porn’ and online stalking, by Raymond Byrne (Law Reform Commissioner) in the Irish Independent:

Our report aims to encourage education and empowerment about positive and safe digital citizenship, while also recognising that the digital media revolution has brought negative aspects such as cyberbullying, harassment and stalking.

… A big challenge is how we should deal with these harmful communications, and our report follows well-accepted principles, especially the need to achieve a balance between relevant rights – such as freedom of expression on the one hand, and the right to privacy on the other. Therefore, our report has recommended that we should approach this on three different levels. First, through education: to create user empowerment and to foster safe and positive digital citizenship. Secondly, through statutory oversight: where education and related responses are ineffective and the law needs to be employed, a system of statutory oversight should be used because it can be a more suitable and proportionate response than using the criminal law. Thirdly, criminal law can play a part, but only in respect of the most serious, harmful communications.

Finally, in a series of tweets, beginning with this one, TJ McIntyre makes a lot of good points. I’ll repeat two here. First:

… some provisions are surprising and worrying. In particular it proposes a censorship system where a non-court body can order takedown of material without the poster having a right to be heard, on the basis that the material is “harmful” (not further defined). … It would certainly contravene the ECHR on procedural grounds alone.

Second, returning to my post yesterday in which I discussed a recent High Court decision directing Facebook to provide the plaintiff with any details which it holds relating to the identities and location of the person or persons who operate the page on which the posts to which the plaintiff objected had been posted, the Commission made some recommendations in this regard:

3.112 The Commission recommends that the jurisdiction to grant Norwich Pharmacal orders be placed on a statutory basis and that both the High Court and the Circuit Court should be empowered to make such an Order.

3.113 The Commission recommends that a one-step procedure be adopted for such orders whereby only one application would be required which would apply, in the online context, to the website and the telecoms company.

3.114 The Commission recommends that the person alleged to have posted the harmful communications should be given the opportunity of appearing and making representations to the court before the court makes a Norwich Pharmacal order.

Picking up on the third element of the recommendation, TJ comments mordantly:

On [the] plus side, [the] report recommends [that] users be heard before being identified (only 10 years after my recommendation) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1397125