Stalking

The final report of the Victorian Law Reform Commission's report on stalking states 

 1 This report recommends ways to improve the justice system’s response to non-family violence stalking. 

2 People who experience stalking can be trapped in a frightening situation that is hard to identify and escape. Many do not report it to police, and they may not even realise that stalking is a crime. 

3 If they do report stalking, they may not get the response they need from the justice system. 

4 Getting help through the justice system in court can be a long, frustrating and traumatic experience. 

5 Too often people who stalk do not change their behaviour. They may stalk with no consequence. 

6 The law and justice system must change so that: • People who experience stalking are protected by adequate safety measures. • The justice system responds to the justice needs of victim survivors. • People who stalk are accountable for their behaviour and are given the opportunity to address it. 

Understanding and responding to stalking 

7 Stalking is not well understood. Information about stalking is hard to find, incomplete or not clear enough. 

8 There should be education about stalking for people in the community and those who work in the justice system. 

9 People need to know more about what stalking is, how best to respond to it and the justice and support options available. 

10 For people who work in the justice system, education should include practical information that will help them respond to stalking effectively. 

Supporting people who experience stalking 

11 It can be isolating, all-consuming and frightening to be stalked. People who experience stalking should be well supported. 

12 People who experience stalking need quick, practical and ongoing support which might be different to other victims of crime. For example, those who experience cyberstalking may need tracking software removed from their phones. 

13 Victoria has the foundations of a strong support system. But it needs to be improved to make it accessible and effective for stalking victim survivors. 

14 The Victorian Government should implement recommendations on victim support from recent inquiries. It should remove any barriers to eligibility that victim survivors of stalking face. 

15 It should fund a stream of quick financial assistance to help victim survivors pay for practical things such as home security. 

16 People who experience stalking should be quickly connected with the services that can support them. 

17 Independent advocates should provide victim survivors with ongoing and ‘joined up’ support and information, to help meet their needs and enable them to feel safe. The ever-present nature of stalking makes it the kind of crime that justifies this intensive support. 

The civil response and stalking 

18 The main civil response to non-family violence stalking, the personal safety intervention order (PSIO) system, is under strain. This makes it challenging for all stalking matters to get the attention they need. 

19 The civil response should be more focused than it is now. We recommend developing evidence-informed guidance for identifying and prioritising stalking matters. 

20 The Magistrates’ Court should apply the guidance to identify stalking matters that need a specialised approach. 

21 A specialised approach—which could include a specialist workforce, court infrastructure and supports—would help make the response to stalking more effective, efficient and less traumatic for victim survivors than it is now. 

22 A potential way to implement a specialised approach for non-family violence stalking matters is through the current system of family violence courts. If that is done, these matters should be separate and clearly identified as non-family violence matters. 

23 Mediation should be used for cases that are assessed as not involving stalking or other serious harm. This would free up the civil response to focus on stalking and other serious harm. 

24 People who experience stalking should be treated fairly, be able to present their best evidence and avoid further distress. This means: • expanding the ban on publishing what happens in court, with some exceptions • preventing respondents from personally cross-examining protected witnesses in court, and funding Victoria Legal Aid to conduct the cross-examination • expanding access to legal advice and representation for PSIO applicants. 

25 Respondents, not just applicants, in PSIO matters should have access to legal advice and representation. 

26 Other changes could be made to help the civil response run efficiently and safely: • The recent implementation of online applications for PSIOs should be monitored and evaluated. • The court should be able to choose to make orders even when no one has applied. • Higher courts should rely on material from the lower courts for PSIO appeals. 

27 The response to children in the PSIO system must take into account evidence about their development and try to prevent long-term contact with the justice system. 

28 PSIOs should not be made against children under the age of 14. 

29 Alternative pathways should be available for children aged 14 and over who engage in stalking behaviour. The law should require that these pathways be explored before making a final PSIO against child respondents. 

30 Access to legal advice and representation should be expanded for child applicants and respondents in PSIO matters. Courts should be able to order that a child is legally represented. 

The criminal response and stalking 

31 The criminal justice system is not dealing effectively with stalking. 

32 People who work in the justice system can find the stalking offence hard to understand and apply. Some of them think the offence is hard to investigate and prove. 

33 The stalking offence should be drafted clearly so that it is more easily understood. 

34 Victoria Police should ensure that guidance and training are given to police to strengthen stalking investigations. 

35 Victim survivors are often told to stop using their devices to prevent cyberstalking. ‘Unplugging’ is not the appropriate solution. Victoria Police should improve its capability to respond to cyberstalking. 

36 There is no need for new criminal offences for breaches of PSIOs. 

37 While the police are increasingly responding to breaches, there are still some victim survivors who feel let down by the justice system. Victoria Police should improve how it responds to breaches. If it decides not to file a charge for a breach, it should provide its reasons to the victim survivors. 

38 People who experience stalking should have extra protections in criminal proceedings: • They should have access to alternative arrangements that make it less difficult and less traumatic to give their evidence than it is now. • Court infrastructure and facilities should be designed to protect them. • The accused should be prevented from personally cross-examining protected victims, and Victoria Legal Aid should receive funding to conduct the cross- examination. 

Responding to people who stalk 

39 For too long the response to stalking has focused on what the victim survivor is expected to do to avoid being stalked. The focus should shift to the people who commit the crime. 

40 There is some evidence that therapeutic treatment may reduce the risk of re- offending. 

41 People who stalk need to get the appropriate intervention early to stop their behaviour. But reforms, including early intervention, will only work if there are services in place. 

42 To protect victim survivors and the community there should be a coordinated, system- wide response to stalking behaviour, focusing on early intervention. 

43 The response should deliver accessible and effective treatment and support programs to people who stalk. 

44 If in the future there are strong indicators that compelling people to have treatment is an effective response to stalking in the PSIO system, the Victorian Government should consider introducing court-ordered treatment. 

45 In Australia, Victoria has the highest maximum penalty for the offence of stalking. Changes to sentencing legislation are not needed, but courts should have guidance on sentencing people who stalk. 

Future improvements 

46 Relevant data and research about stalking is urgently needed. The Victorian Government should address gaps in data and research on stalking and the justice system’s response to it. 

47 As the knowledge base on stalking improves, so should the response to stalking.

The resultant recommendations are 

 1. The Victorian Government should: 

a. identify gaps in data and research on non-family violence stalking and the justice system’s response to it 

b. identify shortcomings in existing data and research on non-family violence stalking and the justice system’s response to it 

c. support additional data collection and research to fill these gaps and address these shortcomings 

d. monitor the emerging data and research on non-family violence stalking and the justice system’s response to it 

e. ensure that any emerging data and research gaps are filled and shortcomings addressed. 

2. In ensure that frontline and specialist police improve their capability to identify, investigate and respond to non-family violence cyberstalking. implementing Recommendations 1-9 of the interim report, Victoria Police should 

3. In implementing Recommendation 8 of the interim report, Victoria Police should ensure that referrals are made efficiently to services that provide technical support for non-family violence cyberstalking for victim survivors, as set out in Recommendation 7 of this report. 

4. a. The Victorian Government should resource and support public education about non-family violence stalking and cyberstalking. This education should be based on relevant research. It should include material on: • identifying stalking and how it is a crime • the harms caused by stalking • the different forms stalking can take • how stalking is different from harassment and similar conduct • common stalking myths • how people engaging in stalking can get help to stop what they are doing • how people who experience stalking can respond, including options available through the eSafety Commissioner • the available support options and what to expect from these • the available justice options and what to expect from these.   

5. Public education should: • be ongoing and adequately resourced • be accessible • include strategies and material tailored to reach diverse communities • equip family and friends to respond constructively to disclosures • include a focus on children and young people and be delivered in schools and higher education settings, as well as to the broader community • equip health providers to respond constructively to disclosures. The Victorian Government should provide funding and support to the Judicial College of Victoria, and other agencies if appropriate, to develop and deliver ongoing training, based on relevant research, for judicial officers, judicial registrars, court staff and prosecutors to improve their response to non-family violence stalking and cyberstalking. Education should address: • barriers to accessing the justice system and responding to diverse experiences of stalking • the nature and dynamics of stalking • the effects of trauma from being stalked and how to respond in a trauma-informed way • support and justice options for stalking victim survivors • assessment and referral pathways for people who stalk. 

b. Education for prosecutors should also include the possible adverse effects of negotiating away stalking charges. 

c. Education for judicial officers, judicial registrars and court staff should also include: • identifying stalking behaviour • the impact of personal safety intervention orders on children • how to frame conditions of personal safety intervention orders for cyberstalking • when to order a pre-sentence assessment report. 

6. The Victorian Government should implement the victim support recommendations in the Centre for Innovative Justice Strengthening Victoria’s Victim Support System: Victim Services Review report and recommendations in the Legislative Council Legal and Social Issues Committee Inquiry into Victoria’s Criminal Justice System, especially recommendations 36, 37, 40, 42, 49 and 50. 

7. a. In implementing reforms to victim support, the Victorian Government should ensure that victim survivors of non-family violence stalking receive support that is practical, timely and ongoing. 

b. For victim survivors of non-family violence cyberstalking the Victorian Government should also ensure that the support provided by private technology companies is regulated and safe. 

c. The Victorian Government should ensure that for victim survivors of non-family violence stalking, including cyberstalking: • pathways to early support are developed • any barriers to eligibility are addressed • access to support is improved for underserved groups • guidelines and training are provided to victim support staff on stalking. 

8. The Victorian Government should fund a stream of timely financial assistance so that victim services can administer flexible support packages or brokerage to assist victim survivors of non-family violence stalking, including cyberstalking. This should include financial assistance to implement safety plans. 

9. a. The Victorian Government should consult on and co-design a model of victim support that uses advocates to provide continuous support for people who have experienced non-family violence stalking. These independent advocates should: • provide information about justice options and progress through the justice system • support victim survivors to understand and exercise their rights • assist with planning for their safety when they are experiencing stalking • support their individual needs • liaise with, and advocate for victim survivors to, services and the justice system. 

b. The model of an independent advocate should: • be available as soon as a disclosure of stalking is made and not depend on a person’s engagement with the criminal justice system • include diverse points of referral and access to such support • enable advocates to provide individualised support, including specialised expertise and understanding of working with people from diverse backgrounds • give priority to people who are currently underserved. 

10. The Victorian Government should provide all necessary assistance to the Magistrates’ Court of Victoria to enable the Court to develop evidence-informed guidance for identifying and prioritising non-family violence stalking in personal safety intervention order matters. 

11. The Magistrates’ Court of Victoria should apply the guidance developed in Recommendation 10 to identify non-family violence stalking personal safety intervention order matters that require a specialised approach. The Magistrates’ Court of Victoria should implement a specialised approach to these matters. 

12. The Magistrates’ Court of Victoria should consider the extent to which the specialist family violence courts should be used for non-family violence stalking personal safety intervention order matters, and how the non-family nature of those cases should be differentiated within the current system. 

13. The Victorian Government should resource the Magistrates’ Court of Victoria to implement Recommendation 11. 

14. The Victorian Government should strengthen pathways from the personal safety intervention order system to mediation, in non-stalking matters only, by: 

a. making the Dispute Settlement Centre of Victoria (DSCV) mediation guidelines more available to police, magistrates, judicial registrars and court staff 

b. funding the DSCV police referral program to re-establish referrals directly from police 

c. funding DSCV to increase Dispute Assessment Officer attendance, and ensuring that as many matters as possible and appropriate have access to the personal safety intervention order mediation program, with a focus on enhancing resources for matters in rural and regional Victoria. 

15. In implementing Recommendations 1 and 3 of the interim report, Victoria Police should ensure that appropriate referrals to mediation are made for people who are not victim survivors of stalking. 

16. The Victorian Government should amend section 123 of the Personal Safety Intervention Orders Act 2010 (Vic) to extend the prohibition on publication to matters involving adults. 

17. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169 of the Family Violence Protection Act 2008 (Vic) to provide for judicial discretion to make an order allowing publication when the court reasonably considers that it is: a. in the public interest b. just in the circumstances. 

18. The Victorian Government should include a provision in the Personal Safety Intervention Orders Act 2010 (Vic) to the effect of section 169B of the Family Violence Protection Act 2008 (Vic) to enable victims to consent to publication, with appropriate safeguards. 

19. a. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to provide for a category of ‘protected witnesses’ as in the Family Violence Protection Act 2008 (Vic) that bars respondents from personally cross-examining protected witnesses. 

b. In determining whether to declare a person a ‘protected witness’ for the proceeding the court should consider the following circumstances: • the nature or seriousness of the alleged prohibited behaviour • relationship between the affected person and respondent • the level of fear of the affected person • whether cross-examination could perpetuate stalking • any specific needs of the affected person. 

20. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent provision as in section 71 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented respondents for cross-examination of the protected witness. 

21. The Personal Safety Intervention Orders Act 2010 (Vic) should include an equivalent of section 72 of the Family Violence Protection Act 2008 (Vic) for the court to order Victoria Legal Aid to represent otherwise unrepresented applicants or protected witnesses for cross-examination of the protected witnesses. 

22. Victoria Legal Aid should be funded to provide the legal representation described in Recommendations 20 and 21. 

23. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for applicants and respondents in relation to non-family violence stalking personal safety intervention order matters. 

24. Eligibility for access to legal advice or representation for applicants and respondents in non-family violence stalking personal safety intervention order matters should be determined based on the guidance developed in Recommendation 10. 

25. The Victorian Government should monitor and evaluate the implementation of online applications for personal safety intervention order matters. Findings should inform the use of online applications to ensure it is safe for use in non-family violence stalking matters and does not reduce the capacity of the court to provide an effective response to these matters. 

26. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to allow for interim orders to be made on the court’s own motion as is the case in the Family Violence Protection Act 2008 (Vic). 

27. The Victorian Government should amend the appeals process that applies to personal safety intervention orders to align with the amendments in the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) to de novo appeals from the summary jurisdiction. 

28. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to prevent personal safety intervention orders being made against respondents under the age of 14 years. 

29. a. The Victorian Government should establish and fund an evidence-informed therapeutic program to respond to children engaging in non-family violence stalking behaviour. 

b. A purpose of the program should be to avoid the need for a personal safety intervention order being made against a child respondent. 

c. The Victorian Government should evaluate the effectiveness of the program and improve the program based on the findings of the evaluation. 

30. The Victorian Government should include a legislative presumption against the making of a final personal safety intervention order against child respondents 14 years and over in the Personal Safety Intervention Orders Act 2010 (Vic). PSIOs should only be available against respondents of this age where: 

a. a therapeutic process (such as the one developed under Recommendation 29) has been undertaken but was unsuccessful, or 

b. in cases where the therapeutic process is inappropriate in all the circumstances of the case. 

31. The Victorian Government should amend the Personal Safety Intervention Orders Act 2010 (Vic) to include a provision similar to section 62 of the Family Violence Protection Act 2008 (Vic), empowering the court to order that a child who is neither an applicant nor respondent be legally represented. 

32. The Victorian Government should provide funding to community legal centres, Aboriginal-controlled legal services and Victoria Legal Aid to expand access to legal advice and representation for child applicants and respondents in relation to non- family violence stalking personal safety intervention order matters. 

33. The Victorian Government should amend the stalking offence in section 21A of the Crimes Act 1958 (Vic) to improve its clarity and practical application. The amendments should: 

a. clarify the meaning of the ‘course of conduct’ element based on established case law principles 

b. redraft the offence to create three offences based on intentional, reckless and ‘objective fault’ forms of stalking, with the elements clearly laid out and the different degrees of culpability clearly shown. 

34. In implementing Recommendations 1-4, 6 and 9 of the interim report, Victoria Police should ensure that sufficient guidance and training is given to frontline and specialist police to facilitate strong and effective investigative and evidentiary practices when considering and authorising stalking charges under section 21A of the Crimes Act 1958 (Vic). 

35. The Crime Statistics Agency should conduct a qualitative review to identify reasons for the attrition of the stalking offence in the criminal justice system. The review should examine: 

a. police and prosecution stalking files 

b. judicial reasons for not finding charges are proved in contested hearings in the Magistrates’ Court of Victoria. 

36. a. Victoria Police should review its operational policy and practice material to develop clear guidance for police members to follow when responding to alleged breaches of personal safety intervention orders in relation to victim survivors of non-family violence stalking. 

37. a. Where an alleged breach of a personal safety intervention order has occurred, but upon investigation Victoria Police decides not to file a charge, Victoria Police should provide an explanation for its decision not to charge to the person protected by the order. 

b. Victoria Police should ensure that responses to alleged breaches are timely and capable of meeting the safety needs of victim survivors. 

b. If requested by the protected person, this decision should be provided in writing. 

38. The Victorian Government should implement Recommendations 37, 40 and 41 from the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process report to amend the Criminal Procedure Act 2009 (Vic) to include a ‘protected victim’ category and provide protections in the form of alternative arrangements for giving evidence. 

39. The Victorian Government should introduce measures under the Criminal Procedure Act 2009 (Vic) to allow ‘protected victims’ to give their evidence in the form of a pre- recording. 

40. The Victorian Government should implement Recommendation 43 of the Victorian Law Reform Commission’s The Role of Victims of Crime in the Criminal Trial Process and Recommendation 85 of the Improving the Justice System Response to Sexual Offences reports to strengthen measures to protect victim survivors of stalking attending court. 

41. The Victorian Government should amend Part 8.2, Division 3 of the Criminal Procedure Act 2009 (Vic) so that the Division on cross-examination of protected witnesses applies to a criminal proceeding that relates (wholly or partly) to a charge for stalking. 

42. The Victorian Government should ensure that Victoria Legal Aid is resourced to provide legal representation to unrepresented accused in accordance with section 357(2) of the Criminal Procedure Act 2009 (Vic). 

43. The Victorian Government should develop a coordinated response to non-family violence stalking to deliver accessible and effective treatment and support programs to people who stalk. The coordinated response should involve: 

a. ongoing research on the effectiveness of and ways to improve responses to stalking behaviour 

b. increasing the availability of general treatment and support in the community and justice system 

c. support that is tailored to the person’s individual needs 

d. improving access to and availability of early intervention programs for people who stalk, especially in rural and regional Victoria e. improving access to and availability of prison-based rehabilitation and reintegration programs f. strengthening assessment and referral pathways from police, lawyers and courts. 

44. If there are strong indicators that compelling treatment is an effective response to non-family violence stalking in the personal safety intervention order system, the Victorian Government should consider introducing court-ordered therapeutic orders, as is the case in the Family Violence Protection Act 2008 (Vic). 

45. The Judicial College of Victoria should develop guidance for sentencing breaches of personal safety intervention orders, similar to the guidance that exists for sentencing breaches of family violence intervention orders and family violence safety notices under the Family Violence Protection Act 2008 (Vic).

Sexting

The UK Law Commission report on reforming the criminal law as it relates to intimate image abuse features the following recommendations 

Recommendation 1. 17.1 We recommend that an image which: (1) shows something that a reasonable person would consider to be sexual because of its nature; or (2) taken as a whole, is such that a reasonable person would consider it to be sexual, should be included in the definition of an intimate image. The definition of sexual should be applied only to the person depicted in the image itself, without considering external factors such as where or how the image was shared..  

Recommendation 2. 17.2 We recommend that the Government consider the behaviours of downblousing and taking “creepshots” in public as part of any review into the need for a specific offence of public sexual harassment. 

Recommendation 3. 17.3 We recommend that the definition of nude and partially nude should include female breasts and female breast tissue, which would include the chest area of: (1) trans women, whether they have breast tissue or not, and regardless of whether any breast tissue is the result of hormonal or surgical treatment; (2) women who have undergone a mastectomy; (3) girls who have started puberty and are developing breast tissue; and (4) non-binary people and trans men who have female breast tissue. 

Recommendation 4. 17.4 We recommend that any garment which is being worn as underwear should be treated as underwear for the purpose of an intimate image offence. 

Recommendation 5. 17.5 We recommend that the definition of “nude or partially nude” should include images which show the victim similarly or more exposed than they would be if they were wearing underwear. This includes images that have been altered to appear similarly or more exposed. 

Recommendation 6. 17.6 We recommend that the definition of an intimate image should include nude and partially-nude images, defined as images of all or part of a person’s genitals, buttocks or breasts, whether exposed, covered with underwear or anything being worn as underwear, or where the victim is similarly or more exposed than if they were wearing only underwear.   

Recommendation 7. 17.7 We recommend that the definition of an intimate image should include toileting images, defined as images of a person in the act of defecation or urination, and images of personal care associated with genital or anal discharge, defecation or urination.  

Recommendation 8. 17.8 We recommend that it should be an offence to take or share, without the consent of the person depicted, an image that falls within the definition of “toileting”.  

Recommendation 9. 17.9 We recommend that an intimate image be defined as an image that is sexual, nude, partially nude, or a toileting image. 

Recommendation 10. 17.10 We recommend that the Government consider whether any further offences are necessary to ensure the behaviour of exposing someone to a serious risk of significant harm in the context of an abusive dynamic is appropriately criminalised. 

Recommendation 11. 17.11 We recommend that the Crown Prosecution Service consider including intimate image offences in the list of offences in their guidance on so-called honour-based abuse and forced marriage.  

Recommendation 12. 17.12 We recommend that images that only show something ordinarily seen on a public street should be excluded from intimate image offences, with the exception of intimate images of breastfeeding.  

Recommendation 13. 17.13 We recommend that images where the victim is not readily identifiable should not be excluded from intimate image offences.  

Recommendation 14. 17.14 We recommend that the act of “taking” an image should form a component of our recommended intimate image offences. 17.15 “Taking” should be understood using the ordinary meaning of the term. It should include any means by which a relevant image is produced, including taking a photo or video with a camera whether digital or analogue and using a device to capture a photograph or video, whether using the camera or an app. 17.16 “Taking” an intimate image which is instantaneously modified by software – such as through a filter – should also be included in a “taking” offence.  

Recommendation 15. 17.17 The definition of “taking” an image should only include such behaviour where, but for the acts or omissions of the defendant, the image would not otherwise exist. Paragraph 4.50 

Recommendation 16. 17.18 We recommend that it should be an offence for D to install equipment with the intent of enabling D or another to commit the offence of taking an intimate image without consent. Paragraph 4.88 

Recommendation 17. 17.19 We recommend that the behaviour prohibited by the current voyeurism and “upskirting” offences should be combined in a single taking offence. 

Recommendation 18. 17.20 We recommend that it should be an offence to share an intimate image without consent. 17.21 The definition of sharing should include all behaviours that have directly made the intimate image available to another. This should include physical posting, showing, or displaying, sharing on social media, peer to peer messaging, or making the image available digitally through transferring a file, sending an encrypted file, saving the image at a specific location and enabling someone to access it, sending a link, or other instructions on how to access the file from a place where the sender has stored it. 17.22 The definition of sharing should not include “secondary sharing” in cases where a person D has informed a third person E where to find an image (for example, by sending a link to a website) that another person F has made available there, D has not shared the image itself or otherwise made the image available, and the image was already available to E. 

Recommendation 19. 17.23 We recommend that offences of sharing intimate images without consent should include sharing with the person depicted. 

Recommendation 20. 17.24 We recommend that it should not be a criminal offence simply to “make” an intimate image without the consent of the person depicted. 

Recommendation 21. 17.25 We recommend that sharing offences, including threats to share, should include images that are intimate as a result of altering, and that are created (whether by digital or non-digital means) if the altered or created image appears to be an intimate image of a person. 

Recommendation 22. 17.26 We recommend that it should not be an offence to possess an intimate image without the consent of the person depicted. 17.27 If an offence based on possession of an intimate image without consent were to be introduced, we recommend that this offence should be limited to circumstances of possession where the victim never consented to the possession of the image by the defendant.  

Recommendation 23. 17.28 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent to the taking or sharing; and (b) D does not reasonably believe that V consents. 

Recommendation 24. 17.29 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; and (b) D does so with the intention of causing V humiliation, alarm or distress or with the intention that D or another person will look at the image for the purpose of causing V humiliation, alarm or distress.  

Recommendation 25. 17.30 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; (b) D does not reasonably believe that V consents; and (c) D does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at the image of V.  

Recommendation 26. 17.31 We recommend that the Government consider reviewing the statutory guidance for the offence of controlling or coercive behaviour in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper. 

Recommendation 27. 17.32 We recommend that the Sentencing Council consider reviewing the sentencing guidelines for domestic abuse offences in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper.  

Recommendation 28. 17.33 We recommend that for all additional intent intimate image abuse offences, the magistrates’ court and the Crown Court should be empowered to find the defendant guilty of the base offence in the alternative. 

Recommendation 29. 17.34 We recommend that the base offence should be summary only with a maximum sentence of six months’ imprisonment. 17.35 We recommend that the additional intent and threat offences should be triable either way with a maximum sentence of two or three years’ imprisonment on indictment, or a term not exceeding the general limit in a magistrates’ court on summary conviction. 

Recommendation 30. 17.36 We recommend that the consent provisions in sections 74 to 76 of the Sexual Offences Act 2003 should apply to intimate image offences. Paragraph 8.38 Recommendation 31. 17.37 We recommend that proof of actual harm should not be an element of intimate image offences. 

Recommendation 32. 17.38 We recommend that where a defendant is charged with taking or sharing an intimate image without consent, and: (1) the intimate image was taken in a place to which members of the public had access (whether or not by payment of a fee); and (2) the victim was, or the defendant reasonably believed the victim was, voluntarily engaging in a sexual act or toileting, or was voluntarily nude or partially nude, the prosecution must prove that, in the circumstances as the defendant reasonably believed them to be, the victim had a reasonable expectation of privacy in relation to the taking of the image. 

Recommendation 33. 17.39 We recommend that a victim who is breastfeeding in public or is nude or partially nude in a public or semi-public changing room has a reasonable expectation of privacy in relation to the taking of an intimate image. 

Recommendation 34. 17.40 We recommend that it should not be an offence to share an intimate image without the consent of the person depicted where: (1) the intimate image has, or the defendant reasonably believed that the intimate image has, previously been shared in a place (whether offline or online) to which members of the public had access (whether or not by payment of a fee), and (2) either the person depicted in the image consented to that previous sharing, or the defendant reasonably believed that the person depicted in the image consented to that previous sharing, unless (3) the person depicted subsequently withdrew their consent to the image being publicly available and the defendant knew that they had withdrawn that consent. Paragraph 10.178 

Recommendation 35. 17.41 We recommend that there should be a defence of reasonable excuse available to our recommended base offence which includes: (1) taking or sharing the defendant reasonably believed was necessary for the purposes of preventing, detecting, investigating or prosecuting crime; (2) taking or sharing the defendant reasonably believed was necessary for the purposes of legal or regulatory proceedings; (3) sharing the defendant reasonably believed was necessary for the administration of justice; (4) taking or sharing the defendant reasonably believed was necessary for a genuine medical, scientific or educational purpose; and (5) taking or sharing that was in the public interest. 17.42 We recommend that the defendant should bear the legal burden of proof to establish the defence on the balance of probabilities. 

Recommendation 36. 17.43 We recommend that it should not be an offence: (1) to share an intimate image of a young child if it is of a kind that is ordinarily shared by family and friends; (2) for family and friends to take an intimate image of a young child if it is of a kind that is ordinarily taken by family and friends. The burden should be on the prosecution to prove that this exclusion does not apply in cases where it is relevant.  

Recommendation 37. 17.44 We recommend that it should not be an offence for a person D to take or share an intimate image of a child under 16 (P) in connection with P’s medical care or treatment where: (1) when doing the act, D reasonably believes (a) that P lacks capacity to consent to the taking or sharing; (b) the taking or sharing will be in P’s best interests; and (2) if D does not have parental responsibility for P, someone with parental responsibility for P has given valid consent to the taking or sharing in connection with P’s care or treatment. The prosecution must prove that this exclusion does not apply in relevant cases. Paragraph 11.225 

Recommendation 38. 17.45 We recommend that the same definition of “intimate image” is used for both the offences of sharing and threatening to share an intimate image. 

Recommendation 39. 17.46 We recommend that the offence of threatening to share an intimate image should include implicit and conditional threats. 

Recommendation 40. 17.47 We recommend that the offence of threatening to share an intimate image should include threatening to share an intimate image that does not exist and other circumstances where it is impossible for the defendant to carry out the threat. 

Recommendation 41. 17.48 It should be an offence for D to threaten to share an intimate image of V where: (a) D intends to cause V to fear that the threat will be carried out; or (b) D is reckless as to whether V will fear that the threat will be carried out. 

Recommendation 42. 17.49 We recommend that the Sentencing Council consider whether an intent to control or coerce should be an aggravating factor at sentencing for the offence of threatening to share an intimate image. 

Recommendation 43. 17.50 We recommend that the prosecution should not have to prove that the person depicted did not consent to the act of sharing that is the subject of the threat. 

Recommendation 44. 17.51 We recommend that it should be an offence to threaten to share an intimate image of V, whether the threat is made to V, or to a third party. 

Recommendation 45. 17.52 We recommend that, where a threat is made to a third party, the prosecution should not have to prove that the recipient of the threat did not consent to the act of sharing that is the subject of the threat. 

Recommendation 46. 17.53 We recommend that section 75 of the Sexual Offences Act 2003 be amended so that a threat to share an intimate image made by the defendant or another triggers an evidential presumption that there was no consent to sexual activity and that the defendant had no reasonable belief in consent to sexual activity, provided that if the defendant did not make the threat, they knew that it had been made.  

Recommendation 47. 17.54 We recommend that complainants of the new intimate image offences should have automatic lifetime anonymity. 

Recommendation 48. 17.55 We recommend that complainants of the new intimate image offences should automatically be eligible for special measures at trial. 

Recommendation 49. 17.56 We recommend that restrictions on the cross-examination of complainants of sexual offences should extend to complainants of the new intimate image offences.  

Recommendation 50. 17.57 We recommend that notification requirements should be automatically applied for the offence of taking or sharing an intimate image without consent for the purpose of obtaining sexual gratification when an appropriate seriousness threshold is met. 17.58 This threshold should be met if: (1) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months; (2) in any other case— (a) the victim was under 18, or (b) the offender, in respect of the offence or finding, is or has been— (i) sentenced to a term of imprisonment, (ii) detained in a hospital, or (iii) made the subject of a community sentence of at least 12 months. 

Recommendation 51. 17.59 We recommend that Sexual Harm Prevention Orders should be available for all of our recommended intimate image offences. 

Recommendation 52. 17.60 We recommend that Government consider making available to the courts a power of forfeiture or destruction in respect of intimate images possessed without consent by an offender following the commission of a taking offence. 

Recommendation 53. 17.61 We recommend that the Crown Prosecution Service consider producing prosecutorial guidance specific to children and young people for new intimate image offences. 

Recommendation 54. 17.62 We recommend that the Government consider whether intimate image offences would benefit from specific extra-territorial statutory provision. 

IPND

ACMA has announced that Telstra has yet again disregarded obligations regarding the Integrated Public Number Database (IPND). 

the announcement states that  Telstra has paid an infringement notice of $2.53 million after ACMA found 'large-scale breaches of rules intended to protect the privacy and safety of customers', with almost 50,000 instances where Telstra failed to correctly upload a customer’s choice of an unlisted - or silent - number to the IPND. That failure - regrettably not a one-off, given that ACMA found in 2019 that Telstra had breached the same obligations.

The failure meant 'silent' numbers could be published in public phone directories or be available through online directory services. 

ACMA also found that Telstra failed to provide data to, or failed to update, the IPND for its Belong customers on over 65,000 occasions.

ACMA's Chair said Telstra potentially put people’s safety at risk. 

 When people request a silent number it is often for very important privacy and safety reasons, and we know that the publication of their details can have serious consequences. The IPND is also used by Triple Zero to help locate people in an emergency, for the Emergency Alert Service to warn of emergencies like flood or bushfire, and to assist law enforcement activities. 

The provision of these critical services can be hampered and lives put in danger if data is missing, wrong or out of date. It is alarming that Telstra could get this so wrong on such a large scale.

ACMA notes that 

All telcos are required to upload customer information into the IPND for each service they provide. This includes the telephone number, the customer’s name and address and whether the customer wants their number of be listed or unlisted. Flagging a number as listed or unlisted determines whether a customer’s details are available in public phone directories and directory assistance services. ... In 2018 and 2020 the ACMA took action against a total of 26 telcos for non-compliance with upload rules, including giving remedial directions. Earlier this year the ACMA gave Lycamobile a $600,000 penalty for breaching the rules.

Stalking

The Victorian Law Reform Commission has been tasked with an inquiry into Responses to stalking, harassment and similar conduct, and the related use of Personal Safety Intervention Orders. 

The VLRC states 

 Stalking is a set of behaviours that can cause great harm to victims’ mental and physical health. If not addressed, it can also escalate to include other types of serious offending, more serious offending, including serious violence and—tragically—homicide and suicide. 

Due to technological advancements, types of stalking behaviour have evolved and can be carried out remotely, without physical proximity to the victim. 

The VLRC is asked to review and report on Victoria’s legal responses to stalking, harassment and similar conduct, including the statutory framework for and operation of the Personal Safety Intervention Order (PSIO) system, drawing upon best practice from the family violence system, criminological research and victim support services. The review should identify barriers to current law effectively responding to stalking, harassment and similar conduct, and make recommendations to address these barriers and improve the justice system’s response, with victim safety and wellbeing the paramount consideration. 

Stalking behaviours can occur in both a family violence and non-family violence context. However, while a specialist, cohesive approach to these behaviours has been developed in a family violence context, less attention has been devoted to the non-family violence response. Additional measures may be required to maximise victim safety and wellbeing and perpetrator accountability, and to allow for more effective early interventions in cases of high or escalating risk. The review may consider mechanisms from the family violence context, such as family violence safety notices and the prohibition on crossexamination by the respondent/accused person. New measures responding to stalking in both family violence and non-family violence contexts should also be considered, such as electronic monitoring as a condition of an intervention order, and responses that address technology-facilitated abuse. 

While stalking is committed by people of all genders, the VLRC is requested to note that most perpetrators of stalking are men, and most victims of stalking are women.

The Commission is to consider 

•  the law on stalking, harassment or similar conduct including: o operation of the Personal Safety Intervention Orders Act 2008 (Vic), including

• consideration of how the legislative framework and operation differs from the scheme for Family Violence Safety Notices and Family Violence Intervention Orders under the Family Violence Protection Act 2008 

• how breaches of personal safety intervention orders are treated under the relevant legislation and responded to within the context of those statutory frameworks 

• the existing criminal offences applying to stalking, harassment and similar conduct, including consideration of the scope, elements and adequacy of the offence of stalking in the Crimes Act 1958 and the evidence required to establish the offence 

• how the law could be strengthened to promote and enhance victim safety and wellbeing   

• the interaction between existing laws where the conduct occurs online o ancillary laws of evidence and procedure. 

• • barriers to reporting for victims of stalking 

• • sentencing practices and available sentencing options.   

In conducting the review, the Commission is to have regard to: 

•  the findings of the Royal Commission into Family Violence (2016) and the actions taken by the Victorian Government and justice system in response to the Royal Commission’s recommendations.  
• Reports of the Royal Commission into Victoria’s Mental Health System (2019).

Partner Surveillance

Installing Fear: A Canadian Legal and Policy Analysis of Using, Developing, and Selling Smartphone Spyware and Stalkerware Applications by Cynthia Khoo, Kate Robertson and Ron Deibert comments

 This report provides an in-depth legal and policy analysis of technology-facilitated intimate partner surveillance (IPS) under Canadian law. In particular, the analysis focuses on a growing marketplace of spyware products that exists online and in major software application (app) stores. These apps are designed to facilitate remote surveillance of an individual’s mobile device use with the surveillance often being covert or advertised as such. Despite increasing recognition of the prevalence of technology-enabled intimate partner abuse and harassment, the legality of the creation, sale, and use of consumer-level spyware apps has not yet been closely considered by Canadian courts, legislators, or regulators. 

Spyware and other forms of technology that facilitate IPS are sometimes referred to as stalkerware. In some circumstances, stalkerware technology is used in an intimate relationship to conduct powerfully intrusive covert or coerced surveillance of an intimate or former partner’s mobile device without their knowledge. Once installed, stalkerware apps allow an operator to access an array of intimately personal information about the surveillance target. The apps can enable real-time and remote access to text messages, emails, photos, videos, incoming and outgoing phone calls, GPS location, banking or other account passwords, social media accounts, and more. Stalkerware apps are sometimes used covertly while, in other circumstances, the technology is used openly to intimidate, harass, or extort the surveillance target. 

Hundreds of spyware apps relevant to IPS are available at the consumer level. Research conducted in Canada and internationally suggests that a significant proportion of women who experience intimate partner violence, abuse, and harassment also report experiences with a range of technology-facilitated abuse, including surveillance and abuse that is enabled by the powerful mobile device spyware apps that are the focus of this report. Despite this troubling context, few reported cases involving spyware-enabled IPS have appeared in Canadian courts, and spyware companies, which profit from the sale of these apps, appear to operate in the Canadian marketplace without being hindered by criminal or regulatory law enforcement. 

This report conducts an in-depth analysis of the criminal, regulatory, and civil law consequences of using, creating, selling, or facilitating the sale of stalkerware technology in Canada. The analysis concludes that the creation, use, and sale of spyware apps that enable covert surveillance of mobile devices can potentially violate numerous criminal, civil, privacy, and regulatory laws in Canada. With respect to the criminal law, notably, purchasing and selling spyware that is primarily useful for surreptitiously intercepting private communications (as many of the major consumer-level spyware products do), likely constitute a criminal offence in Canada. These offences expose vendors and operators of spyware products to the risk of criminal law consequences, such as jail. 

Operators of stalkerware are also subject to civil liability if they are found to have perpetrated a tort (wrongful act). Targeted individuals may bring a cause of action (lawsuit) against an operator on legal grounds of: invasion of privacy, public disclosure of private facts, breach of confidence, and intentional infliction of mental suffering (IIMS). We also briefly discuss non-intentional torts and assess the emerging novel tort of harassment as a potential additional response to stalkerware. Our legal analysis found that the act of making and selling—as opposed to using—spyware products likely also runs afoul of both criminal and product liability law with respect to dangerous or defective product design. We also review the applicability of non-binding instruments such as the United Nations Guiding Principles on Business and Human Rights and industry efforts at self-regulation, including ethical codes and internal worker resistance in the technology sector. We consider, briefly, the limited applicability of intellectual property laws to impeding the creation and dissemination of stalkerware. Canadian consumer privacy and data protection law, governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA), and substantially similar provincial legislation, includes several provisions regarding informed consent, notice, and appropriate purposes that would apply to stalkerware businesses and likely render their activities unlawful. We find that PIPEDA includes three potential exceptions, or loopholes, that may allow stalkerware vendors to circumvent accountability. We recommend that the Office of the Privacy Commissioner of Canada or federal and provincial legislators take action to close these potential gaps. 

App stores and web platforms that sell apps to consumers also play a role as intermediaries that can facilitate sales of stalkerware through their platforms. Despite active efforts by companies such as Apple and Google to enforce app developer policies and agreements against such apps, research shows evidence of a continued, albeit decreased, presence and availability of stalkerware on popular app stores. We recommend that all app stores clarify their relevant policies and revise developer terms of agreement regarding user privacy, consent, security, and malicious behaviour to expressly state that such protective policies apply to the individual whose data is being collected, processed, or disclosed by the app in every case, instead of referring simply to a generic ‘user’. The generic term ‘user’ can inappropriately or incorrectly be interpreted as referring to the stalkerware operator rather than the targeted individual. 

Despite the available data about the prevalence of IPS and technology-facilitated abuse and harassment in Canada and its impact on victims and gender equality rights more broadly, there appears to be a significant measurable gap between what the law dictates about such conduct and whether legal remedies are readily available to victims in practice. One complicating factor is that many spyware apps market themselves as, or are genuinely intended as, apps for ostensibly legitimate purposes, such as child and employee monitoring. Such apps are then repurposed into stalkerware for abusive purposes. Similar repurposing occurs with non-spyware apps or built-in phone features such as a GPS tracker, which abusive operators may manipulate or repurpose into stalkerware. We discuss this dual-use nature of spyware technologies, and critique the legitimacy of dual-use spyware even where such technology is used to surveil children or employees. 

The report concludes by recommending a range of measures that relate to public legal education, law reform, heightened investigative and regulatory scrutiny of consumer spyware markets, and enhanced training and resources for law enforcement, regulators, and other justice system participants who are tasked with enforcing Canada’s laws. Given stalkerware’s inherent dangers and invasive capabilities and the documented association between stalkerware apps and intimate partner violence and gender-based abuse, justice system participants and the private technology sector bear a responsibility to establish and reinforce a web of meaningful restraints that address and remedy the harms of stalkerware, both in law and in practice. 

Our purpose in this report is to contribute to greater substantive efforts to address technology-facilitated gender-based abuse in Canada, beginning with the harms and violence that stalkerware enables through its covert or exploitative surveillance of targeted individuals. The critical analysis provided in this report is designed to enhance public understanding of legal remedies, policy considerations, and human rights concerns associated with stalkerware. The report is also designed to provide assistance to policymakers, legal professionals, academics, community workers, and advocates who are trying to support victims or navigate the complex implications of this technology.

Online harms and law reform in Ireland

The Law Reform Commission of Ireland has released its report on Harmful Communications and Digital Safety.

 The Commission comments that its report

arises against the reality that we live in a truly interconnected digital and online world. The revolution in telecoms and digital media in the first two decades of the 21st century means that we can communicate with the world through social media on smart phones and other digital devices at virtually any time. This has brought enormous positive benefits, because it has facilitated a new form of online and digital consumer society and also allowed us to participate on a national and international level in civic society and in public discourse generally. This has greatly expanded the capacity to enjoy freedom of expression and of opinions in this jurisdiction and in comparable States.

This freedom has, however, also brought some negative aspects, including a tendency for some online and digital users to engage in communications that cause significant harm to others, including by posting online intimate images without consent and which involve gross breaches of the right to privacy. Examples include the intentional victim- shaming of individuals (overwhelmingly women) sometimes referred to as “revenge porn” (an unhelpful shorthand because it appears to suggest it is “just porn”). Other negative developments include intimidating and threatening online messages directed at private persons and public figures. New forms of technology have also facilitated a new type of voyeurism, sometimes referred to as “upskirting” and “down blousing” in which intimate images are taken and then posted online. In addition, there have also been many instances of online and digital harassment and stalking, which also mirror to some extent the pre-digital versions of these harmful behaviours.

Harmful communications and digital safety: criminal offences and civil law oversight

This project and Report has identified that the existing criminal law already addresses some of the harmful communications described. Not surprisingly, however, it has also identified some gaps that require reform, notably where new forms of communication have been used in harmful ways that could not have been anticipated previously. The Report therefore proposes that the existing criminal law, together with the proposals intended to deal with the new forms of harmful communications, could usefully be consolidated into a single piece of legislation, reflected in Part 2 of the draft Harmful Communications and Digital Safety Bill in Appendix A of this Report.

In addition, the public consultation carried out by the Commission leading to this Report (including a public seminar in 2015 hosted by the Commission, and a 2 day workshop with young people in 2016 facilitated by the Department of Children and Youth Affairs) has also underlined the need to address harmful communications in a wider context, which would include a system of statutory oversight that promotes and supports positive digital safety.

The Report recommends that this should be done under a proposed Office of the Digital Safety Commissioner of Ireland, modelled on comparable offices in Australia and New Zealand, and which could build on the existing Office of Internet Safety located in the Department of Justice and Equality. The proposed Commissioner would have a general oversight and monitoring role, including functions aimed at promoting online and digital safety generally. In this respect the Commissioner would collaborate with other relevant State bodies such as the Ombudsman for Children in the development, with the Department of Education and Skills and the Department of Children and Youth Affairs, of guidance material for young people and schools on what it means to be a safe and responsible digital citizen.

The proposed Digital Safety Commissioner would also oversee and monitor an efficient and effective “take down” system so that harmful communications can be removed as quickly as possible from, for example, social media sites. This would include the publication of a statutory code of practice on take down procedures and associated national standards, which would build on the current non-statutory take down procedures and standards already developed by the online and digital sector, including social media sites. The proposed statutory model envisages that applications for take down of harmful communications would initially be made to the relevant digital or online service provider, such as a social media site. The Digital Safety Commissioner would become involved by way of appeal if the take down procedure did not operate in accordance with the statutory standards – and the Commissioner would also have a general monitoring and supervisory role, as is the case in the Australia and New Zealand systems. These standard-setting and oversight proposals are reflected in Part 3 of the draft Harmful Communications and Digital Safety Bill in Appendix A of the Report.

The Commission is conscious of the important position that Ireland occupies in the digital sector, including the significant presence in the State of many of the leading online and digital multinational firms. In that context, the proposals made in this Report may have an impact not only in Ireland but also some extra-territorial effect outside the State because of the reach of the firms headquartered in Ireland. In this respect, the Report begins in Chapter 1 by noting the increasing regulation internationally of aspects of online and digital communications. This includes through the Council of Europe and the case law of its European Courts of Human Rights, as well as through the European Union and the case law of its Court of Justice, as well as EU legislation that affects this area.

It may be that, ultimately, some aspects of harmful communications, such as the extra- territorial scope of criminal and civil law in this area, will be addressed through regional or global agreements or conventions. For the present, this Report makes recommendations on extra-territoriality that reflect existing law, both in the criminal law and civil law oversight areas. ...

Guiding Principles in the Report

... Chapter 1 of this Report describes the Commission’s general approach to reform in this area. It discusses how the Commission was guided by key principles, including:

• the wider context within which law reform proposals should be considered, in particular the need to have in place solutions that involve education and empowerment concerning harmful digital and online communications; 

• the need to take account of relevant rights and interests, including to ensure that the law contains an appropriate balance between the right to freedom of expression on the one hand and the right to privacy on the other hand; 

• the principle of technology neutrality, which requires a focus on regulating actions and behaviour rather than simply the means used; and 

• the requirement for a proportionate legal response that recognises the respective roles of criminal law and of civil law and regulatory oversight: namely, that criminal law is used only where activity causes significant harm, and that civil law and regulatory oversight includes an efficient and effective take down procedure and a suitable statutory framework.

The wider context for this Report was fully analysed in the 2014 Report of the Internet Content Governance Advisory Group (ICGAG Report), which examined the general policy setting and governance arrangements needed to address harmful online material. In preparing this Report, the Commission has had the benefit of the discussion in the ICGAG Report of this wider context.

In relation to the need to balance the rights to freedom of expression and privacy, the Report discusses their recognition in the Constitution of Ireland as well as in the European Convention on Human Rights (ECHR) and EU law.

As to technology neutrality, this requires that the form of regulation neither imposes, nor discriminates in favour of, the use of a particular type of technology. However, technology neutrality does not necessarily require the same rules online and offline, but rather that the rules in both contexts achieve the same effect. This may require technology specific laws in certain cases. 

With regard to proportionality, this Report applies the harm principle, which requires that responses based on policy, education and the civil law should be prioritised and that the criminal law should only be employed to deal with serious harm. The Report therefore recommends a three level hierarchy of responses to target harmful digital communications: 

• Education: to create user empowerment and foster safe and positive digital citizenship;   

• Civil law and regulatory oversight: where education and related responses are ineffective and the law needs to be employed, civil law should be favoured as it is less onerous than the criminal law; 

• Criminal law: only the most serious harm should be subject to the criminal law.

This hierarchical approach is particularly important in the context of harmful digital communications because the ease with which individuals can post content online means that much internet communication is spontaneous and impulsive, and thus a vast amount of content is posted every day. A hierarchical approach is also necessary because this type of harmful communication often involves children and young people for whom the criminal justice process should be seen as a last resort and only after other responses, such as education or suitable diversion programmes, have been applied.

Reform of Criminal Law Concerning Harmful Communications

Harassment should include online or digital means of communication, and indirect forms

Chapter 2 of the Report begins with a discussion of whether the harassment offence in section 10 of the Non-Fatal Offences Against the Person Act 1997 should be extended to incorporate a specific reference to harassment by online or digital means of communication.

Section 10 of the 1997 Act already applies to direct harassment of a person “by any means”. However, as the Report describes, while this probably applies to direct online or digital harassment, it does not clearly address other forms of online harassment about a person, such as posting fake social media profiles. The Commission therefore recommends that the harassment offence should be amended to include a specific reference to harassment of or about a person by online or digital means: this would offer important clarification as to the scope of the offence.

The Commission also recommends that section 10 of the Non-Fatal Offences Against the Person Act 1997 should be repealed and replaced with an harassment offence that expressly applies to harassment by all forms of communication including through digital and online communications such as through a social media site or other internet medium. As already noted, the Commission considers that this reformed harassment offence should be included in a single piece of legislation that also includes the other offences discussed in this Report ....

Specific offence of stalking

Stalking is an aggravated form of harassment characterised by repeated, unwanted contact that occurs as a result of fixation or obsession and causes alarm, distress or harm to the victim. This element of intense obsession or fixation, which creates an unwanted intimacy between the stalker and the victim, differentiates stalking from harassment.

The Report discusses developments in Scotland and England and Wales where specific stalking offences were introduced in 2010 and 2012 respectively. The experiences of these jurisdictions strongly suggest that the introduction of specific stalking offences led to an increase in reporting and prosecution of stalking. Specifically naming stalking as an offence also carries great significance for victims of stalking, because of the “hidden” nature of the crime as well as its aggravated nature compared to harassment. The Commission therefore recommends that a specific stalking offence should be enacted.

Need to address once-off harmful communications

The Report also considers whether offences are required to target once-off harmful communications. Section 10 of the Non-Fatal Offences Against the Person Act 1997 is limited to persistent behaviour and thus does not apply to a single act that seriously interferes with a person’s peace and privacy or causes him or her alarm, distress or harm. This gap has become particularly apparent with the advance of digital and online communication, because the internet enables instant communication to large audiences, often anonymously (actual or, in some cases, perceived). These features of the online and digital environment mean that even a single communication has the capacity to interfere seriously with a person’s peace and privacy or cause alarm, distress or harm, particularly as internet communications are also difficult to erase completely.

A number of offences other than the harassment offence can be applied to some forms of harmful once-off behaviour, such as sending threatening messages in section 13 of the Post Office (Amendment) Act 1951, misuse of personal data under the Data Protection Acts 1988 and 2003 or “hacking” under the Criminal Damage Act 1991. However, none of these offences deals comprehensively with, for example, non- consensual distribution of intimate images of adults where this is done on a once-off basis, as opposed to persistently.

The Report examines how other jurisdictions, such as Canada, England and Wales, Scotland and the Australian state of Victoria, have legislated for this type of criminal behaviour. This includes offences designed to target non-consensual distribution of intimate images with intent to cause harm (the victim-shaming offence often called “revenge porn”) and other offences designed to target once-off harmful communications (to address what is often referred to as “upskirting” and “down-blousing”).

One of the most significant challenges when legislating for harmful online behaviour is to ensure that any offences are drafted with sufficient precision so that they are not vulnerable to being found unconstitutional on grounds of vagueness. The Report explores how the vagueness doctrine has been applied in the Irish courts as well as discussing pertinent examples of legislation dealing with harmful internet communications that have been found to be unconstitutionally vague in Ireland and other jurisdictions.

Offence of sending or threatening or indecent messages should apply to online communications

The Commission reiterates the recommendation in the 2014 Report of the Internet Content Governance Advisory Group (ICGAG Report) that the offence of sending threatening or indecent messages, in section 13 of the Post Office (Amendment) Act 1951 (which is currently limited to communication by letter, phone and SMS text), should be extended to apply to online communications. The Report recommends that the section 13 offence should be repealed and replaced with an offence of distributing a threatening, false, indecent or obscene message by any means of communication and with the intent to cause alarm, distress of harm or being reckless as to this.

New offence to address once-off intentional online victim-shaming (“revenge porn”)

The Report recommends that there should be a new offence to target the non- consensual distribution of intimate images, including where this involves a once-off incident. This would deal with the victim-shaming behaviour where a person posts or otherwise distributes intimate images such as photos or videos with the intention of causing another person harm or distress (the so-called “revenge porn” cases). The Commission therefore recommends the enactment of an offence involving the distribution of intimate images without the consent of the person depicted in the image and where there is intent to cause alarm, distress of harm or being reckless as to this.

New offence to address other once-off posting of intimate images without consent (“upskirting”)

In some instances, including in the case of young people, intimate images obtained are shared spontaneously or without considering the impact on the person concerned, or are re-distributed by third parties without consent. These cases may not be capable of being prosecuted under the victim-shaming offence recommended above because the intent to cause alarm, distress or harm element may not be present. The Commission therefore recommends that a separate offence should be introduced to target the non-consensual taking and distribution of intimate images without intent to cause alarm, distress or harm. This would address the so-called “upskirting” and “down-blousing” behaviour, which is a form of voyeurism.

Protecting the privacy of victims

The distribution of intimate images has the potential to cause the persons depicted in such images significant harm in the form of distress, humiliation and shame. The victims of such activity may thus be discouraged to report to the Gardaí and pursue a prosecution for fear of generating more publicity for the images in question. The Commission therefore recommends that in any prosecution for a harmful communications offence provided for in the Report, the privacy of the person in respect of whom the offence is alleged to have been committed should be protected.

Consent of DPP for cases involving persons under 17

The Commission recommends that no prosecution for the offences discussed in the Report may be brought against children under the age of 17 except by or with the consent of the Director of Public Prosecutions. The procedural protection reflects the Commission’s strong view that it would be highly undesirable to criminalise children under the age of 17 years for behaviour undertaken as a result of their inherent immaturity and where there is no intention to cause serious distress. It also reflects one of the Commission’s guiding principles in this Report, that in the case of children and young people, the criminal justice process should be seen as a last resort and only after other responses, such as education or suitable diversion programmes, have been applied.

2 year time limit for summary prosecutions

The Commission recommends that the general 6 month time limit for bringing a summary prosecution (in the District Court), in section 10(4) of the Petty Sessions (Ireland) Act 1851, should not apply. Instead a 2 year time limit should apply for summary prosecution of harmful communications offences. Frequently, these cases require the collection of evidence from websites with servers located outside the jurisdiction. Such content can only be obtained through the use of the Mutual Legal Assistance Treaty procedure, which can take up to 18 months to be completed. This is a significant problem in summary proceedings because the 6 month time limit will have expired before the relevant content has been received and so extending this time limit for harmful communications offences to 2 years would ensure that summary prosecutions for such offences will not be prevented by a restrictive time limit. No specific time limit applies to prosecutions on indictment. 

Jurisdiction and extra-territoriality in criminal law 

In general, criminal jurisdiction is territorial, meaning that it is usually limited to offences committed within the territory of the State. Article 29.8 of the Constitution provides that the State may legislate with extra-territorial effect, which must be done expressly. There are a number of examples where the Oireachtas has expressly provided that offences have extra-territorial effect, including under the Criminal Damage Act 1991 and the Sexual Offences (Jurisdiction) Act 1996. The Report recommends extra-territorial effect should apply to the harmful communications offences discussed in the Report, and that the approach taken in the Criminal Justice (Offences Relating to Information Systems) Bill 2016, which concerns a comparable area, should be adopted. 

This would allow for extra-territorial jurisdiction for harmful communications offences where: (a) a harmful communications offence is committed by a person in the State in relation to a means of communication that is located outside the State, (b) a harmful communications offence is committed by a person outside the State in relation to a means of communication in the State or (c) a harmful communications offence is committed by a person outside the State if the person is an Irish citizen, a person ordinarily resident in the State, an undertaking established under the law of the State, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of the Companies Act 2014 and the offence is an offence under the law of the place where the act was committed.

Penalties on conviction

The Report outlines the current penalties that apply on conviction for offences relating to harmful digital communications and makes recommendations for the penalties that should accompany the offences provided for in the Report.

The Commission considers that the maximum penalties for the harassment offence under section 10 of the Non-Fatal Offences Against the Person Act 1997 are sufficient and provide a suitable upper level for penalties that should apply to the reformed harassment offence and to the other 3 intent-based offences proposed in the Report. The Commission therefore recommends that the intent-based offences in the Report should carry, on summary conviction, 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 7 years imprisonment.

The Commission recommends that the fifth offence dealt with in the Report, of taking or distributing an intimate image without consent (to deal with so-called “upskirting” and “down-blousing”), should be a summary offence only, and that the maximum penalties on conviction under this offence should be a Class A fine and/or up to 6 months imprisonment.

Intersection with hate crime

The Report has also explored the extent to which the current law on hate crime intersects or overlaps with harmful online and digital communications.

The main legislation designed to deal with hate crime is the Prohibition of Incitement to Hatred Act 1989. The 1989 Act prohibits incitement to hatred against a group of persons on account of their “race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.” Incitement includes publication, broadcast and preparation of materials. The 1989 Act is not limited to offline behaviour as it extends to words used, behaviour or material displayed in “any place other than inside a private residence.” However, the 1989 Act has been subject to significant criticism for its perceived inefficacy, illustrated by the limited number of prosecutions that have been taken under it.

Ireland intends to ratify the Council of Europe Convention on Cybercrime, and has been encouraged to ratify the Additional Protocol to the Convention concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems. Ireland is also obliged to implement the 2008 EU Framework Decision on combating racism and xenophobia.

In this respect it is clear that comprehensive reform of hate crime legislation is due to be enacted in the future, and the Commission considers that it would not therefore be appropriate to address separately, in this Report, online hate speech only. Because wide-ranging reform of hate speech is outside of the scope of this project, the Commission recommends that online hate speech should be addressed as part of the general reform of hate crime law.

Digital Safety Oversight, Take Down Procedure and Civil Law

Absence of effective oversight system or civil remedies

Chapter 3 of the Report addresses the need for an oversight system to promote digital safety, including an efficient take down procedure for harmful digital communications.

The chapter begins by describing the existing, non-statutory, content and conduct policies of social media companies and their reporting and takedown processes. The Report then discusses the existing civil remedies that apply in relation to harmful digital communications including the remedies available under the Defamation Act 2009 and remedies for breach of the constitutional right to privacy. The remedies under the Data Protection Acts 1988 and 2003 are also considered as well as the developments that have taken place in EU law on data protection and privacy, including case law of the EU Court of Justice and the 2016 General Data Protection Regulation.

The Report acknowledges that available processes and remedies may not be effective, and that the potential cost, complexity and length of civil proceedings may prevent victims of harmful digital communications from obtaining redress in court. A victim of harmful communications should be able to have a readily accessible and effective take down procedure available to him or her.

(Digital Safety Commissioner would promote internet safety and oversee take down procedures

The Report describes the enactment of New Zealand’s Harmful Digital Communications Act 2015 and Australia’s Enhancing Online Safety for Children Act 2015, which have established statutory bodies to promote online and digital safety and to provide oversight of take down procedures operated by online service providers such as social media sites. 

The Report recommends that an Office of the Digital Safety Commissioner of Ireland should be established on a statutory basis, broadly modelled on the Australian approach. The Digital Safety Commissioner would have functions related to promoting online safety as well as overseeing and monitoring an efficient and effective procedure for takedown of harmful digital communications. 

The Commission considers that the Office of Internet Safety, which was established in the Department of Justice and Equality to take a lead role for internet safety in Ireland, may be a suitable body to take on the role of the Digital Safety Commissioner. The Report notes that this would require decisions by the Government and Oireachtas on the necessary funding and staffing of the Office of the Commissioner, and that these are matters outside the scope of this Commission’s role.

The Commissioner’s educational and promotional roles

The Report recommends that the Digital Safety Commissioner’s functions should include an educational and promotional role concerning digital safety in collaboration with relevant Government Departments and State bodies. In the specific context of internet safety for children and young people, the Report envisages that the Commissioner would liaise with the Ombudsman for Children in the development, with the Department of Education and Skills and the Department of Children and Youth Affairs, of guidance material for young people and schools on what it means to be a safe and responsible digital citizen. It would also include guidance on the use of mediation and restorative processes.

The Commissioner’s oversight and supervision functions

The oversight and supervision functions of the Commissioner would operate in a similar way to the Australian e-Safety Commissioner, requiring digital service undertakings to comply with a statutory code of practice, developed after suitable consultation by the Digital Safety Commissioner. The statutory framework would also include National Digital Safety Standards, which would require the digital service undertaking to have in place a provision prohibiting the posting of harmful digital communications, a complaints scheme whereby users can request free of charge the removal of harmful digital communications, a timeline for responding to complaints and a contact person to engage with the Commissioner.

If the Commissioner were to be satisfied that a digital service undertaking complied with the code of practice and the National Digital Safety Standards, the Commissioner would be empowered to issue a certificate of compliance, which would have the presumptive effect that the digital service undertaking was in compliance with the code and the standards. The Report proposes that the Digital Safety Commissioner should have responsibility for harmful content involving all individuals, adults and children.

Proposed take down procedure

The proposed take down procedure would require a user initially to make his or her complaint directly to the relevant digital service undertaking, such as a social media site. If the content was not taken down in accordance with the time specified in the code of practice, the user could make a complaint to the Commissioner. The Commissioner would then investigate the complaint and if the complaint were to be upheld, the Commissioner would direct the digital service undertaking to remove the specified communication and would revoke the certificate of compliance issued to the provider. If the digital service undertaking were to refuse to comply with the direction of the Commissioner to remove the communication, the Commissioner could apply to the Circuit Court for an order requiring compliance by the undertaking.

Civil restraining orders for harmful communications

Section 10 of the Non-Fatal Offences Against the Person Act 1997, unlike the English and Welsh Protection from Harassment Act 1997, does not allow separate civil proceedings to be brought based on its provisions. However, section 10(3) of the 1997 Act empowers a court to make a restraining order restricting a person from communicating and/or approaching the victim where the person has been convicted of harassment. Section 10(5) of the 1997 Act also allows restraining orders to be made where a person has been acquitted of harassment.

The Report recommends that, in cases involving the harmful communications discussed in this Report, restraining orders should be available without the need to initiate criminal proceedings. This would provide victims with a valuable remedy in cases where criminal proceedings may be unsuitable or undesirable from the perspective of the victim.

Court powers in intended civil proceedings: Norwich Pharmacal orders 

Norwich Pharmacal orders allow for the disclosure of the name and IP address of parties unknown to the plaintiff against whom the plaintiff intends to issue civil proceedings for alleged wrongful conduct.

At present, Norwich Pharmacal orders are not provided for in legislation, and only the High Court can issue them as part of its inherent jurisdiction. This means that the cost of obtaining such orders is high and the remedy is not available to many individuals. The 2014 Report of the Internet Content Governance Advisory Group recommended that the power to make such orders should be placed on a statutory basis and extended to the Circuit Court. The Commission agrees with this recommendation.

Currently, Norwich Pharmacal orders usually involve a two-step mechanism whereby an individual has to first seek an order against the relevant website to disclose user and IP details. Once furnished, these details may lead to data held by a telecoms company, many of whom require a second Norwich Pharmacal order before agreeing to disclosure. The Commission therefore recommends that a one-step procedure be adopted for such orders whereby only one application would be required which would apply to both the relevant website and the telecoms company.

The Commission also recommends that the person alleged to have posted the harmful communication should be given the opportunity of appearing and making representations before the court makes a Norwich Pharmacal order, because at present such orders are granted on an ex parte basis (without notice to the affected party), which may infringe the right to fair procedures and to anonymous speech.

Jurisdiction and extra-territoriality in civil law

The Report also makes recommendations in relation to the extra-territorial role of the proposed Digital Safety Commissioner and in connection with the civil remedies discussed above.

The Report recommends that the territorial scope of these civil aspects of harmful communications should, in general, apply to harmful communications where: (a) such harmful communications affect an Irish citizen or a person ordinarily resident in the State, and (b) the means of communication used in connection with such harmful communications are within the control of an undertaking or company established under the law of the State.

The Commission also recommends that they should have some extra-territorial effect in connection with an Irish citizen or a person ordinarily resident in the State. This should reflect the approach taken in connection with the extra-territorial enforcement of civil proceedings generally, including under the “service out” procedures in the Rules of the Superior Courts 1986. 

The Report therefore recommends that this extra-territorial effect would be where the means of communication used in connection with harmful communications are within the control of an undertaking established under the law of another State but where an Irish court would have jurisdiction to give notice of service outside the State in respect of civil proceedings to which such harmful communications refer.