Seanad Éireann díospóireacht -
Tuesday, 22 Oct 2024

I move: "That the Bill be now read a Second Time."

This Bill seeks to amend the Non-Fatal Offences Against the Person Act 1997 and the Broadcasting Act by inserting, in section 9A, a new offence of catfishing. Catfishing is a relatively new word to our vocabulary but its development coincides with the use of the online space. More and more people are working online, socialising online and operating in the online space. That brings new and inventive ways for people to do bad things. This is about improving the law and updating our legislation to deal with what I consider to be a gap in Irish law.

Catfishing, as we would define it, is where somebody operates or causes to operate a computer, phone or similar device and they purport to be another person by using or imitating that other person's name, voice, signature, photograph or likeness without that person's consent and, importantly, they do so either intentionally or recklessly causing alarm, distress or harm to another person. This could be by interfering with that person's peace and privacy, by causing a substantial adverse impact on the person's usual day-to-day activities, or both. It is my proposal that the legislation carry with it, on summary conviction, a fine and up to 12 months in prison and, on conviction on indictment, up to five years in prison.

People might ask how catfishing is not illegal already. If someone does not set out to benefit in some way or defraud somebody, it is difficult to find recourse through the law for something like this. I was prompted to develop and draft this Bill, with the assistance of the Office of Parliamentary Legal Advisers, OPLA, on foot of some of the work done last year in two areas. One was the work done by the two Johnnies. People may remember their podcast on the topic. One of the two ended up engaging with a person online named "Cora" and it turned out, after multiple back-and-forth messages and arrangements to meet up and what-not, that the person did not exist. The two Johnnies did a whole podcast on this. I was enthralled listening to it and thought it was fascinating. I was amazed by the lengths to which the individual went to dupe somebody into a relationship online using somebody else's image. That is one side of it because there are two victims to this crime.

The second aspect is the person whose identity has been used to set up the fake profile, which brings me to the work of Ellen Coyne in the Irish Independent who profiled a 29-year-old woman called Aoibhin. As an actor, we can appreciate that Aoibhin's image is very important to her work, profession and reputation. Multiple profiles were set up using her image and address across multiple dating websites, causing her huge distress, emotional stress and anxiety at the time. She found very little recourse with the platforms and unfortunately, even though we know social media companies and these online platforms have a duty of care and a moral obligation to do the right thing, unless they are legally obliged to act, they often turn a blind eye or just do not bother.

Aoibhin found it very difficult to deal with the platforms in question and get her image removed. She also found, when she went to the Garda, that there was very little recourse because, at a stretch, could it be considered defamation? If the information posted is factual, it cannot be defamation as it is real information. It would be difficult, therefore, to bring forward a case under defamation proceedings. Equally, would the harassment section in the Non-Fatal Offences Against the Person Act be sufficient? My understanding is the Department of Justice might argue that it is sufficient, but I remind the Department that a similar argument was used when I first brought the stalking amendment Bill to this House. I was told the Bill was not needed, we did not need a stand-alone offence of stalking and the harassment section under the Non-Fatal Offences Against the Person Act was perfectly sufficiently. Yet, when we roll forward a few months, there was a change of heart in the Department of Justice when it acknowledged there was merit in having a stand-alone offence and the harassment section was not sufficient. I believe the same argument applies here. We know the importance of having a stand-alone offence. Name it and call it what it is because straight away because, as we can imagine, someone in Aoibhin's circumstances can go to the Garda and say "I am the victim of this crime, and here it is in black and white set out as a stand-alone offence."

Similarly, it is much easier to explain yourself to the Garda if you can point to a very clear offence for what is exactly happening to you. I do not believe the current harassment legislation is sufficient or fit for purpose. When we think about the online space, it is only in the past ten to 15 years that we are spending more and more time online and social media platforms are part and parcel of daily life, particularly for young people, who are socialising and meeting partners online. Similarly, dating websites and dating apps are a fairly recent phenomenon. Therefore, it makes sense that Irish law is not up to date and there is a gap in Irish law. That is why it is important to address it, not to fumble around in the dark and wonder if any of the old laws kind of fit this new offence. Let us be modern and progressive in our approach, let us update the laws properly and let us cater for what is a relatively new happening online.

I personally know of a number of people who have had this happen to them, where they have found fake profiles using their image and personal details online on different platforms. People behind those profiles used them to engage and speak to other people, purporting to be somebody they are not. One may ask what the motivation behind this is. There is not always a financial motivation or an intent to defraud. Sometimes, it is just malice. Sometimes, somebody is doing it just for the fun of it. Perhaps they think it is funny or just have a little bit too much time on their hands. However, whatever the reason, we know it is happening. We know that people’s identity and images are being used without their consent to set up fake profiles and engage with people online.

I listened to the “The 2 Johnnies” podcast. For anyone who has not listened to the story around Cora and what happened, they kind of made light of it towards the end, which could have a devastating impact on somebody else who perhaps did not see the funny side of it or was not able to come out the other end and just chalk it up to experience. If you believe you have entered into a relationship with somebody online, and all of the emotion that goes with that, it can be devastating to find out that none of it was real and it was some sort of a game on the other side or somebody was having a little bit of fun or doing it just for the kicks. It is important to acknowledge the impact on somebody’s well-being and their mental health, and the stress and anxiety that can come with that, as well as the shame and embarrassment. I think there will be many cases of this where people may feel they cannot come forward and report it because they may feel they would be ridiculed. However, what I say to that is we know it has become far more common.

We know there are deficiencies in the law and there is a gap there now. I do not say that by way of criticism. I do not think it warrants criticising because it is explainable. It is explainable as to why that gap is there, because this is a new phenomenon. There are still many people who have not heard the term “catfishing” and are still learning what that means. I have been explaining it to a few people today on foot of the Bill. I think people understand the concept but perhaps have not heard the terminology yet. Other jurisdictions across the world have tried in some way to deal with this, so we are not the first. It is important we move on this, particularly for younger people. There have been many conversations in recent times about online safety. Coimisiún na Meán may have a role to play in this as well. That remains to be seen. It is important that we have a discussion publicly about online safety and how we protect people, and tell people they are not alone, that it has happened to other people as well.

I welcome the Minister of State’s response on this. I hope the response is not that the current harassment legislation is sufficient because, as I said, we have been here before. I urge the Department and the Minister of State to look at this. I am open to working with the Minister of State and the Department on amendments to improve the Bill. That is what legislating is about. This is only the Second Stage debate. I hope I will get broad support for the concept behind the Bill. I am open to working with the Department and the Minister of State on potential amendments to make this Bill more robust and make it the best law we can make it.

There are two angles to this we need to focus on, namely, the person whose information has been taken without his or her consent and the person on the receiving end of the catfishing who has been duped into engaging or into a relationship. It is important we do not make light of that and we acknowledge it can be very upsetting and distressing for somebody. I have heard stories of somebody engaging with a person online for six years, thinking they were a real person. One might ask how they did not think it was a bit unusual that they had never met the person in real life. However, these things happen because people are spending more and more time online and it has become more socially normal to engage with people in that way. We can be very trusting. You do not know what type of a space you would find somebody in. It could be a very vulnerable person who falls victim to this. Equally, as “The 2 Johnnies” put it well, it may not be a vulnerable person. People may be savvy, bright and confident but still it can happen. That is important as well.

I welcome the Minister of State’s response to this. I ask that the Department be open to considering the Bill, as opposed to just looking at old legislation and seeing whether it can fit a square peg into a round hole, because that is often what we do in these cases until we are pushed to a point where it is obvious the laws do not fit. We have an opportunity now to lead, get out ahead on this and be progressive in how we legislate in this area. I think there is a public appetite for politicians and the legislature to do more to regulate and legislate for the online space. This is a great opportunity to do that.

I will hand over to my colleague, Senator O’Loughlin, who is seconding the Bill.

I am happy to second this Bill. I commend Senator Chambers on her work on this. This follows on from her excellent Bill on stalking, which has now become legislation. It is important, as she said, that it is not merely seen as harassment but it is a specific type of behaviour and should be a specific type of offence. When we see the specifics are there, that is what makes good legislation.

Senator Chambers mentioned “The 2 Johnnies” and how they opened up the world of catfishing to many people who may not be interested in legislation or what goes on in this House. It breaks it down so that people understand the difficult situation people can find themselves in and all of the different consequences, be they emotional, psychological or financial. It reminds me that sometimes soap operas on our screens are good for showing what is happening in the world. There was, perhaps last year, an experience of catfishing where one actor pretended he was a woman and caught another guy. He did this on a revenge basis. We could clearly see how difficult a scenario this was for the victim. As Senator Chambers said, there are two victims. There is the victim whose identity has been stolen and the person who has been impacted is another victim.

I should also mention that among our Senators within this Chamber, we had a situation. I only became aware of it when I saw The Sunday Times newspaper article about two weeks ago, where Senator Clifford-Lee spoke about being catfished. Her photograph was put on another profile on a particular type of website. She acted. She went to the Garda straight away. I have spoken to her about it since and the reason she did that also was to encourage other victims in this type of situation to speak out. If your gut does not feel right about something, we need to speak out about it. We need clear legislation such as Senator Chambers outlined. It is an incredible situation when we realise that the legislation we have does not cover this specifically and people can get away with this within the courts.

Sometimes, late at night, when I arrive home from here and I am trying to switch off, I put on television and watch something. There was a programme last week based on fact. It was an Australian woman who was catfished, and she ended up in jail. She ended up completely broke and estranged from her family. It was a shocking situation. It was a film, but based on fact. All of these things are absolutely happening.

We need robust, fit-for-purpose legislation that deals with these fake online personas.

We need that to protect innocent people, both those whose identities and physical features are being used and those who are being scammed. I am honoured to second the motion on the legislation. I will be very happy to see it go to the next Stage.

I welcome and support the Bill. I hope it will be supported unanimously. "Catfishing" is a new term. It is a real issue for a great many people. From anecdotal and newspaper reports, we are all aware of vulnerable people and people who may not be so vulnerable whose money has been taken from them through this process. They believe they have developed a relationship with somebody akin to a romantic relationship or love affair. They give money to somebody to travel to meet them or to assist them in some area. This can result in theft and fraud. Of course, it can also result in great emotional distress for the victim when he or she discovers what has happened. As is rightly pointed out in the section 9A(1)(b), there are two victims here: the person whose identity is stolen and used, and the person at the receiving end. It is a very sinister thing. A person purports to be another person, even taking on a different gender, as has been mentioned. Arising from that, such people extract money, defraud or emotionally distress somebody. They can also destroy a person's reputation or name. This can have implications in many spheres of people's lives. The Bill is a good one in dealing with this issue. There has to be robust fines.

The policing of the Internet and the online space is a new area. We are all well acquainted with defamation law. Those of us who had the privilege of reading a wee bit of law at some time in our lives know that there is very well-developed defamation law in respect of print media. There are provisions as regards slander in normal conversations and libel where words are recorded. There is well-developed legislation in that area but there is not the same for the Internet because it is new uncharted territory. We are working on that area.

Senator O'Loughlin, who is leader of the Irish delegation at the Council of Europe, will be familiar with what I am about to say. I had the privilege of being the rapporteur on a report produced in the council that got a lot of traction. It was on the sexual abuse of young people online through the introduction to pornography, sexual violence and a myriad of other things of these young minds that are not fit to cope with it. No mind should look at these things but those people are particularly vulnerable. Arising from that study, I also found out about another form of fishing on the net, the whole area of inveigling young people into gambling, including illegal gambling. My colleague, Senator Cassells, shares my interest in this area, as does Senator Wall, who has just left us. There is an issue with young people being inveigled - for want of a better term - into online gambling and the whole area of gambling by being given bonus points, credits and wins to get them into various games.

To get back to the essence of this Bill, it is a good development and I congratulate our colleagues, including my colleague to my right, Senator Chambers, on it. As she said, if it has to be amended, so be it. If it has to be further discussed, that is not a problem. It is important to get the legislation on the Statute Book. The concept and principle are good. It is a matter of refining the Bill in legislative terms. We have enough civil servants and legislators to do that effectively.

We are all aware of victims and cases of this happening. We can all picture people who have the potential to be affected. It may be somebody living alone who is vulnerable and lonely at a particularly difficult time in his or her life. Such people may be capable of being lured into this kind of thing. When people are facing certain personal circumstances, they may be lured down this dreadful road, leading to awful issues subsequently. It is therefore important that perpetrators are fined and, as the Bill specifies, imprisoned for up to a year. We need to do whatever it takes to show that we are firm on this and to provide a disincentive to any more of it.

The Bill does not merit much more discussion than that. I hope that it will gain general acceptance and that the Minister and Department will then propose whatever amendments are required, which I hope will also gain general acceptance. It is only a matter of netting these people. It is a worthwhile discussion. Our party expert on catfishing has just arrived in the Chamber. Perhaps he will contribute to the debate. I was only trying to delay proceedings until his expertise could be launched into the debate.

I have come to the Chamber pay tribute to Senator Chambers for bringing forward this Bill. The progressive Bills she has been involved with follow on from real-life issues that impact people, especially younger people. She successfully brought through the stalking Bill and has moved onto this Bill on the practice of catfishing. She spoke about the impact of this practice and the need to recognise it from a criminal point of view. That is very important. I was on the media committee when the online media Bill was being debated and we dealt with several young people who had been victims of different online crimes. It is a sphere and a world that is causing exceptional distress to a great many people. As Senator Chambers said, it leaves people emotionally devastated. Following on from that, victims find it very hard to trust again. This can affect their personal and professional relationships, leading to depression and anxiety.

That is all before we deal with the financial losses that can be involved. The studies that have been carried out have shown these to be very significant. Studies carried out in the US have shown that catfishing scams have among the highest reported losses associated with Internet crimes as a whole. A total of 19,000 Americans reported losing almost $740 million to romance scammers in 2022. Across the water, in the United Kingdom, the National Fraud Intelligence Bureau received more than 8,000 reports of romance fraud in the same financial year, resulting in total losses of more than £92 million. The figures involved in this are very significant. Apart from anything else, including the devastating impact on people's emotional well-being, the financial element of this is highly significant, particularly for teenagers and Gen Z. Research by Snapchat involving more than 6,000 Gen Z teenagers and young people in the UK, France, Germany, Australia and the US who use that platform found that almost two thirds of these users had at least been targeted by catfishers or hackers with a view to obtaining private images. Last week, we had a discussion on media literacy, dealing with our State's defence mechanisms against these things and trying to encourage people, particularly young people, to improve their media literacy. We are already doing a lot of positive promotional work.

We need to see that underlined. Coimisiún na Meán has a huge body of work to do in that respect.

We can do a great deal in terms of positive media literacy. In regard to responses in other jurisdictions, in the UK catfishing is not classified as a criminal offence. However, if the person using a fake profile engages in illegal activities such as financial gain, he or she can be punished by law. In China, God forgive me for using a country such as China as an example, under its cybersecurity law there is a provision that implicates people who allow their websites or communication platforms to be used for fraud and other illegal activities. When I read about that it got me thinking that during the online media Bill that we discussed in this House with the Minister, Deputy Catherine Martin, Senator Malcolm Byrne and I both sought to make an amendment to actually make the directors of platforms in the country, rather than just the entity, personally liable if harm had been caused. We did not get that through at that time. Amazingly, it has become a buzz item for many of our leaders. Something that was ruled out of hand a couple of years ago is now being looked at again. In regard to this, I wanted to come into the Chamber to support my colleague, Senator Chambers. This is an important body of work that is going to resonate. As seen from many of the media reports today, it has resonated among many young people. In that respect it is incumbent on us to give it due regard and debate. I hope the Minister of State will do so.

I welcome the opportunity to respond on this matter on behalf of the Minister for Justice, Deputy McEntee, who unfortunately is not available. I thank Senator Chambers for bringing forward this Bill. The Government will not be opposing it. The Minister looks forward to engaging with Senator Chambers in particular on these issues. I share the deep concerns expressed by the Senator in relation to behaviour and safety on the Internet.

It is undeniable that online services have brought incredible benefits. One only has to look at how important virtual lives were to many of us during the pandemic and how important remote working has been ever since to see that. These benefits have made the world smaller. However, it is also undeniable that the anonymity or sense of anonymity that online communication enables can bring about real-life dangers and harms. From bullying and stalking to fraud, breaches of privacy and disinformation, the list goes on. The reality is that we cannot have the same level of trust that someone is who they say they are. Whether out of personal malice, or for fraud, or simply from a thoughtless lack of regard to the consequences, it is clear that some dishonestly take advantage of the possibility for anonymity and in doing so cause serious distress and harm.

In catfishing, the perpetrator often deceives another person into an online relationship. However, there is usually more than one victim. Senator Chambers and all the other speakers made reference to that too. As well as those who are deceived by the perpetrator’s fake identity, the person whose identity has been stolen is also a victim. With more and more relationships starting online, there is huge value in exploring how we can more effectively protect victims of these behaviours.

New criminal offences can only ever be part of the answer in changing behaviours and acceptable social norms. More broadly, much is being done to mitigate the risks associated with online communications to inform users and encourage responsible practices among service provides. I will outline some of those actions very briefly.

The EU Digital Services Act came into force this year. It regulates intermediaries and platforms and its main goal is to prevent illegal and harmful activities online and to combat the spread of disinformation. It ensures user safety, protects fundamental rights and creates a fair and open online platform environment.

Closer to home, the Online Safety and Media Regulation Act marked a watershed moment in the move from the self-regulation of online providers to an era of accountability and a more joined-up approach to media regulation. It established a new, powerful regulator in Coimisiún na Meán to enforce accountability in the sector. Only this week, as Senators will undoubtedly be aware, Coimisiún na Meán formally adopted its online safety code which sets binding rules for video-sharing platforms to follow in order to reduce the harm they can cause. Those obligations include requirements to restrict certain harmful online content, including cyberbullying, incitements to hatred or violence and racist or xenophobic material. The code will also require those platforms to offer parental controls and content rating systems, as well as to operate effective reporting and complaints mechanisms for their users. Those developments in online regulation are complemented by important new criminal justice measures.

Last year, my colleague, the Minister for Justice, Deputy McEntee, passed the Criminal Justice (Miscellaneous Provisions) Act 2023. That Act significantly amended the existing harassment offence under section 10 of the Non-Fatal Offences Against the Person Act 1997 to cover any and all persistent conduct that causes alarm, distress or harm. An illustrative and non-exhaustive list of possible forms of conduct is provided for, which specifically includes impersonation, disclosure of private information and purporting to act or communicate on behalf of another. In 2020, the Harassment and Harmful Communications Act, "Coco’s Law", provided for specific offences in relation to threatening and offensive communications and circulation of intimate images.

Where the purpose of the impersonation is fraud or theft, that will be an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001. Of course, where impersonation is used for the purposes of a sexual offence, whether online or otherwise, it will be charged as that offence.

I welcome this debate. It is important to assess carefully whether there are any gaps, as Senator Chambers made reference to in her initial comments. It is also important to emphasise that impersonation causing alarm and distress is already a crime. Impersonation with the purpose of defrauding someone is already a crime. Those who are affected by these offences can and should report them to An Garda Síochána. Gardaí investigating these offences have recourse to their full powers. Those who believe they can use anonymity to hurt others with impunity are wrong. They are committing a criminal offence and they can be punished severely. Harassment under section 10 of the 1997 Act carries a maximum penalty of up to ten years' imprisonment. It is a serious offence.

Education and personal caution also play a role. We should make it absolutely clear that there is no excuse whatsoever for people taking someone else’s identity online. It is, as has been well-illustrated tonight, not harmless. It does not matter if the person is not known or nothing malicious is intended. It is simply unacceptable. For the innocent users, simple steps such as doing reverse searches for images that people provide in profiles can weed out fraudsters. Of course, as is always emphasised, we should be extremely wary of any request for money or personal information. There are a wealth of resources available to help to develop safe online habits. Parents are constantly trying to find ways of helping their families to safely navigate online services. Useful guidance is available through Coimisiún na Meán and Citizens Information.

There is, of course, a vital need to balance freedom and responsibility online. Anonymity may be used to protect legitimate interests and to allow self-expression where that might otherwise not be possible. However, there is a very significant difference between maintaining anonymity and appropriating someone else’s identity. How we deploy online regulation and the criminal law more generally raises important questions, and I look forward to hearing Senator Chambers's response to this.

To reiterate, the Government is not opposing this Bill. The Minister, Deputy McEntee, looks forward to engaging with Senator Chambers on these issues.

I thank the Minister of State for delivering the reply on behalf of the Minister for Justice, Deputy McEntee. As I suspected, he suggested that the current harassment legislation is sufficient. I will again make the point, as I did with the stalking Bill.

One of the reasons we finally acknowledged, as a Government, that it was important to have a standalone offence of stalking was that there was evidence from the UK that showed when you have a standalone offence and call it what it is, and where it is very clear, you increase awareness of the crime. That has a twofold impact. It increases reporting of the crime and, very importantly, it increases prosecutions. The same argument holds for this piece of legislation. You could argue that the harassment legislation is sufficient but it is confusing. It is not obvious to someone who is experiencing catfishing. With regard to impersonating a person, I do not think people would be straightaway drawn to the very specific circumstances of catfishing. It is using somebody's information and image online and seeking to enter a relationship with somebody else. It is quite specific in what it is. It has become a recent phenomenon. There is an obvious explanation as to why there is a gap in the law. How could existing legislation deal with that? Existing legislation is more used to traditional methods of interaction among people and is not always geared towards the online space so it makes sense that we have not yet dealt with this.

There is significant merit in having a standalone offence of catfishing because it is a particular type of activity or situation that relates to something quite specific. When we look at the case of Aoibhín, who I mentioned, at the time the Department of Justice was asked for its views on catfishing and it said there was no specific offence at the time. It also said that it is quite obvious if there is a fraud included. That is not what we are looking to cover here. Fraud is catered for. This is a specific offence where somebody impersonates another person intending to enter a relationship or engage with another person online but where there is no financial benefit from it. It is not that they are making money out of it. Again, we may not know the reason they do it. In Aoibhín's case, she still did not know why the person had done this to her. They were creating multiple online profiles. She had approached Tinder to try to get the image taken down but Tinder was not interested because it was not a criminal offence and it had, I suppose, bigger and better things to be getting on with. Similarly, there was no recourse for her through the Garda at the time either. In that interview, she said to Ellen Coyne that she was waiting for someone to sit across from her and start a date that she does not know she is supposed to be on because those profiles were using the address where she was living. When she was out and about in her own community, she was looking over her own shoulder wondering if someone was going to tap her on the shoulder and say, "Hey, I have been engaging with you on X platform" or whatever it might be. It is quite a specific occurrence, and it is becoming more common.

There is an onus on us not to try to fit a square peg into a round hole but to have fit-for-purpose legislation that calls it what is and sets out what it is. Then it would be very easy understandable for people. Our laws are complicated enough as it is. We are not all politicians, legislators or lawyers. For the general public, it is important that our laws make sense and are accessible to people. That is important for the Garda as well. As I said, the argument I have made with previous legislation is there is evidence to show that when you have a standalone offence and call it and name it what it is, it has a very positive impact with regard to improving the criminal justice system and access for victims. It increases reporting and prosecutions, and that is the argument behind this. With regard to trying to squeeze it in under the harassment section that was brought through in 2023, I am obviously very familiar with the miscellaneous provisions Bill because it contained the stalking offence that I brought through this House initially, when the Department at the time told me it was not needed and tried to block it. Now it is in the Bill and I am really glad that it is being legislated for. I hope we do not have a similar type of journey with this Bill, and that it would be considered for the reasons I have outlined. Particularly for younger people who will benefit from this, it will be very easily understandable. It is important that our laws are fit for purpose.

We are behind in legislating for the online space. As I mentioned in my initial contribution, there is a role for Coimisiún na Meán. Of course, there is a role at a European level because the online space does not know borders and we have to work with other members states as well. We also have to take responsibility in the Oireachtas and legislate where we see a gap in the law. On that basis, I am pleased the Government is not opposing the Bill. That leaves space to bring it through and I am glad to have had the opportunity to have the debate and to create more awareness around the issue. I hope I have made some persuasive arguments as to why the Bill has merit.