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The Harmful and Malicious Electronic Communications Bill 2015 is deeply flawed

electronic communications bill

The Harmful and Malicious Electronic Communications Bill 2015 is an ill-conceived and flawed piece of work, even if the intentions behind it are sincere.

This is its title:

An Act to protect against and mitigate harm caused to individuals by all or any digital communications and to provide such individuals with a means of redress for any such offending behaviours directed at them.

Well and good.  All perfectly laudable on the face of it, until we read the actual text, which defines two offences:

  • Harmful electronic communication.
  • Malicious electronic communications.

Section 3 states as follows:

(1) A person who, without lawful authority or reasonable excuse, intentionally or recklessly shares a harmful electronic communication shall be guilty of an offence.

(2) For the purposes of this section an electronic communication shall be considered harmful where it—

(a) incites or encourages another to commit suicide,

(b) incites or encourages another to cause serious harm to themselves, or

(c) includes explicit content of the other, and it intentionally or recklessly causes alarm, distress or harm to the other.

Section 4 states:

(1) A person who, without lawful excuse, persistently shares malicious electronic communications regarding another shall be guilty of an offence.

(2) For the purposes of this section an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to the other.

Both sections provide for a fine of €5,000 or 12 months in prison or both.

Clearly, nobody could argue with criminalising anyone who encourages another person to commit suicide or cause serious harm to themselves, unless that person happens to be an open and notorious despot, such as Saddam Hussein, Bashar al-Assad or Osama Bin Laden, but there’s the first problem.  However unintentionally, the proposed Bill gives protection to the likes of those who lead ISIS. In theory, anyone calling for their suicide or self-harm is a criminal, even though most of us would be perfectly happy if they did away with themselves.

The big difficulty comes with the sections that criminalise causing alarm or distress to another person by means of electronic communication and the reason for that difficulty is plain.  The definition of alarm and distress doesn’t rest in my hands but in yours.  If you choose to be alarmed or distressed by anything I say on line, I am a criminal.

Thus, for example, if this Bill had been enacted prior to the Marriage Equality referendum, I could now be a criminal simply by saying that I supported same-sex marriage, since so many absolute lunatics expressed alarm and distress at the very thought of anyone suggesting such a thing.

Not only would I be a criminal, but so would the bill’s sponsors, Pat Rabbitte and Lorraine Higgins, both of whom supported marriage equality, to the great distress and alarm of many traditionalists. Not to mention more than one authoritarian ideologue.

Should I be entitled to make a criminal complaint because I’m alarmed or distressed by anything the ridiculous Iona Institute says, or the crazies from Mothers & Fathers Matter?

No I should not.

I find them offensive. I find them alarming. For that matter, I find them repellent, but I do not find them criminal.

If this bill happened to be law today, Lorraine Higgins herself might well be a criminal for sharing photoshopped images of Luke Ming Flanagan on line, but perhaps she wasn’t thinking of herself when she drafted the Bill. Perhaps she was thinking of those faceless internet trolls who aren’t real people.

Pat Rabbitte could be clapped in irons for making sarcastic remarks on line if he knew what the internet was. Luckily for Pat, as a Jurassic politician, his defence is absolute.

But still, that’s the problem with trying to define what is offensive. It places power in the hands of those who would silence us.

We can’t draw up laws based on how sensitive people are to the views of others because, apart from anything else, such a law would probably be found repugnant to Article 40.6.1 of the Constitution: Freedom of Speech. We can’t legislate based on how unstable an individual’s personality is, how badly they desire to be insulted or how deeply disordered they might be.

The thickness of my skin is not a measure of your criminality.

The lack of logic is disappointing for a Bill devised by a qualified barrister like Lorraine.  However well-meaning she  might be in proposing this legislation, the bill deserves to go nowhere until it has been properly thought out so that it no longer offers a veto to every bigot and religious maniac who chooses to be offended in order to silence you and me.

Offence is not given. It is taken.

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Full text here.