Revenge porn could be made criminal offence under proposal

New criminal offences outlawing the posting online of intimate images without a person's consent have been proposed by the Law Reform Commission.

One would deal with so- called revenge porn, or the intentional posting of intimate images online without a person’s consent, often after a relationship has broken down.

Another proposed law would also focus on the posting of intimate images or video online and target what the commission says is a new form of voyeurism often called “upskirting” or “down-blousing”.

The proposals are contained in a report on harmful communications and digital safety in which the commission also calls for the appointment of a statutory digital safety commissioner.

The commissioner would have the power to direct a social media site to comply with a new statutory code of practice that would dictate the procedure for taking down harmful material. If the site did not comply, the commissioner could apply to the courts.

The commissioner would promote digital safety, including positive digital citizenship among children and young people, working in conjunction with the Ombudsman for Children and the education partners.

Online intimidation

The report also recommends reform of the existing offence of harassment to ensure it includes online activity such as posting fake social media profiles. It says there should be a separate offence of stalking, which it describes as an aggravated form of harassment.

It further recommends reform of the existing offence of sending threatening and intimidating messages to ensure it fully captures the most serious types of online intimidation.

The commission said the legislation recommended in the report should apply to all forms of harmful communication, whether offline or online.

The definition of intimate image should include images where a person’s face is superimposed on the intimate parts of another person’s body.

It also recommends that in the prosecution of any harmful communication offence, the victim’s privacy should be protected unless the person opts to waive this.

The offences proposed would carry, on summary conviction, the maximum penalties of a class A fine, currently a fine not exceeding €5,000, and/or up to 12 months’ imprisonment; and on conviction on indictment, an unlimited fine and/or up to seven years’ imprisonment.

Person under 17

The report recommends that a person under 17 years of age should not be prosecuted other than with the consent of the Director of Public Prosecutions.

It is also proposed that the measures would have extra- territorial reach where feasible, so offences by a person in the State but involving a means of communication outside the State, or where the offence is committed by a person outside the State in relation to a means of communication located in the State, might be covered.

The commission said it was conscious of the important role Ireland played in the digital sector, with many of the leading online and digital multinationals having a presence here. The proposals made, therefore, “could have an impact not only in Ireland but also have some extra-territorial effect outside the State because of the reach of the firms headquartered in Ireland”.

It said ultimately some aspects of harmful communications, such as the extra-territorial scope of criminal and civil law in the area, would be addressed through regional or global agreements.

The Report on Harmful Communications and Digital Safety can be read on the Law Reform Commission's website.