- [[https://www.oireachtas.ie/en/committees/submissions/20190808-committee-on-justice-and-equality-calls-for-submissions-on-online-harassment-and-harmful-communications/][Call for submissions]]
- [[https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_justice_and_equality/other/2019/2019-08-08_possible-issues-for-address_en.pdf][List of possible issues]]
** Web page (captured [2019-08-24 Sat])
The Committee on Justice and Equality invites written submissions
from stakeholders and interested parties on the issues of online
harassment, harmful communications and related offences.
[[https://www.oireachtas.ie/en/committees/32/justice-and-equality/][Go to the Committee on Justice and Equality]]
A separate document can be obtained at the following [[https://data.oireachtas.ie/ie/oireachtas/committee/dail/32/joint_committee_on_justice_and_equality/other/2019/2019-08-08_possible-issues-for-address_en.pdf][link]] outlining
in detail the list of possible issues the Committee wishes to
address under this broad heading.
In summary, the Committee wishes to examine the nature and extent
of the problems of online ‘cyber bullying’, harassment, stalking,
‘revenge porn’ and other forms of harmful communications;
international best practice for addressing these problems; whether
self-regulation of harmful communications by social media companies
is the best approach; or whether new laws are necessary to cover
such activities, and what forms such laws should take.
The Committee will commence a series of public hearings on these
issues on 2 October 2019, with a view to publishing a report.
*** Closing date
The closing date for receipt of submissions is Friday, 20
September 2019.
*** How to send your submission
Please email an electronic document (PDF/MS Word or equivalent) to
- Sex workers have no means to learn about their potential clients
prior to the client knowing about them: where they could vet
people who made contact with them over these services before
identifying themselves, this is not possible anymore, and
dramatically increases their risk.
- Ironically, one of the negative effects of /FOSTA-SESTA/ is that
it is now much harder for the police to investigate rapes,
assaults and murders of sex workers than before, because a
critical trail of evidence -- the online communications between
offenders and sex-workers -- now can no longer be
laid[fn:FOSTAPolice:https://www.techdirt.com/articles/20180705/01033440176/more-police-admitting-that-fosta-sesta-has-made-it-much-more-difficult-to-catch-pimps-traffickers.shtml]. This
is not least because the websites are no longer there, but because
when they were (e.g. Backpage), they assisted the police
investigating these crimes against sex workers; advertising was
legal back then, and now it's not, the police won't get the help
There is a myriad of reasons for choosing to host one's own
service. Some examples might be:
- Privacy -- until recently many services were careless or
outright abusive users' privacy
- Tracking -- the extent to which organisations, particularly
those whose business models are based on advertising, facilitate
the tracking of internet users as they conduct their business or
personal activities across the internet.
- Autonomy -- to be able to configure ones own service is often a
powerful experience.
- Community -- While some of the global services with household
names offer features go small businesses and community groups
(like footall clubs or debating societies), often the lock-in
and exclusivity involved can make it hard to include everyone
who needs to be involved. Hosting your own services allows you
to set the rules and codes of conduct.
- Experimentation -- just by means of playing with interesting
software projects can people often learn about the tools and
systems they use, and grow their knowledge of the technologies
involved.
- Collaboration -- the softwas that implements self-hosted
services often some under the terms of a Free or Open Source
Software copyright licence, which allows for peope to copy and
improve software, and these improvements often find their back
to the original project for others to benefit.
- Protection -- Governments in countries where civil rights are
not regarded as highly as they are in Ireland very often delight
in the greater ease involved in surveilling their populations
when the record of all that activity is centralised in a single
service.
Very often, as with me, the reason to self-host is a combination
of more than 1 of these reasons.
** CONSDONE How accessible is self-hosting.
In a previous, similar, submission[fn:dccae:Available [[http://www.gibiris.org/eo-blog/posts/2019/04/15_harmful-content-consultation.html][here]] and
[[https://www.dccae.gov.ie/en-ie/communications/consultations/Documents/86/submissions/Eibhear_O_HAnluain.pdf][here]].], I provide an outline of the challenges before someone who
wants to set up their own services. There are few, and they are
small. In summary, the reasons for this are:
- The Internet is mechanism for computers to find each other and
then to share information with each other. The mechanism is
defined in a set of publicly-available documents describing the
relevant protocols.
- Due to the maturity and age of these protocols, software needed
to use them is now abundant and trivially easy to get and install
and run on a computer. Such software is also very easy to develop
for moderately-skilled software engineers.
- Neither the protocols that define, nor the software that
implement the internet regard any computer to be superior or
inferior to any other computer. For this reason, there is no cost
or capacity barrier for someone to cross in order to run an
internet service: if you have the software, and the internet
connection, then you can expose such a service.
Clear examples from the past of how the accessibility of the
internet technologies has benefited the world include the
following:
- The /Linux/ operating system kernel began life in 1991 as a
college project -- Linus Torvalds wanted to write a computer
operating system that was accessible to all. Linux-based
operating systems now form the basis of a significant proportion
** CONSTODO Strand 1 -- National Legislative Proposal
*** CONSTODO Question 1 -- Systems
- The legislation should state in an unequivocal manner that it is
not the role of web services to adjudicate on whether specific
user-uploaded pieces (text, videos, sound recordings, etc.) can
be considered harmful under the legislation. The law should make
it clear that where there is a controversy on this matter, the
courts will make such rulings.
- As regard a system, this submission would support a
notice-counternotice-and-appeal approach. Such an approach
affords the service operator and the accused party an
opportunity to address the complaint before the complained-of
material is taken offline. The following should be incorporated:
1) A notice to a service operator that a user-uploaded piece is
harmful should contain the following information:
- That the notice is being raised under this legislation
(citing section, if relevant).
- That the person raising the notice is the harmed party, or
that the person raising the notice is doing so on behalf,
and at the request, of the harmed party. Where the harmed
party doesn't want to be identified, the notice could be
raised on their behalf by someone else. However, totally
anonymous notifications under this legislation should not
be permitted, as it would not be possible to determine the
good-faith nature of the notice.
- The specific (narrowly tailored) definition of "harmful
content" in the legislation that is being reported.
2) A notice to the user who uploaded the complained-of material
regarding the complaint. This will allow the user to remove
the material, or to challenge the complaint. An opportunity
to challenge a complaint is necessary to forestall invalid
complaints that seek to have information removed that would
not be considered harmful under the legislation.
3) Adequate time periods for both the complainant and the
posting user to respond.
4) Where responses aren't forthcoming...
- ... if the posting user doesn't respond to the initial
complaint, the posting is to be taken down
- ... if the complaining user doesn't respond to the posting
user's response, the posting is left up.
5) Within a reasonable and defined period of time, the service
provider will assess the initial complaint, the
counter-notice, and the complainant's response to the
counter-notice, and will decide whether to take the material
down or to leaving it up, /citing clear reasons for the
decision./
6) Where either party is not happy with the decision, they can
appeal to the regulator, and if the regulator contradicts the
service operator's decision, the service operator must abide
by the regulator's ruling. In its consideration of the
ruling, the regulator must be required to consider the rights
of both parties.
- Responsibilities and obligations of the service provider *must*
relate to the size of the service. For example, it's not
reasonable to ask the service provider to respond within an
amount of time for those services that would not have someone
available within that time. Self-hosters or small,
single-location, operations would not be able to respond within
an hour if the complaint is made at 4am!
- This system should not apply to complaints that a posting violates the service's terms and conditions. If the complaint isn't explicitly made under this legislation, it should not fall within the regulator's remit. *Under no circumstances should merely violating a service's terms and conditions (or "community standards") be considered an offence under this legislation.*
*** CONSTODO Question 2 -- Statutory tests
The service operator should be protected from liability under the
rules if the service can show the following:
- That the initial complaint was responded to appropriately and
within a reasonable amount of time.
- That an appeal was responded to within a reasonable amount of
time.
- That the poster and complainant were each offered an opportunity
to respond
- That the responses, and any appeals, were given due
consideration.
- That the final decision (whether to keep the post up or pull it
down) was well-reasoned, and considered the context in which the
post was made.
- That, where appeals have been made to the regulator, the service
responds to any order from the regulator in a reasonable manner
and within a reasonable amount of time.
*** CONSTODO Question 3 -- Which platforms to be considered in scope
This submission is concerned to ensure that assumptions not be
made that all affected platforms will be large, for-profit
organisations with scores, or hundreds, or thousands of staff
acting as moderators of user-uploads.
The legislation should also not assume that platforms that want to
deal with user uploads *should* be of a particular nature, or
size.
To make either assumption would be to chill lawful interactions
between internet-connected parties, and would further entrench the
larger players on the internet.
*** CONSTODO Question 4 -- Definitions
- Please see my introductory comments on this matter.
- Definitions of "harmful content" must aim to be as narrow as
possible, in order to avoid the potential of the legislation
being used to target political speech.
- In respect of serious cyberbullying, it should be considered
harmful content under the legislation not just when it targets a
child. It should be considered cyberbullying and harmful even if
it is an adult, if the complaint states that s/he is being
harmed or fears harm should the complained-of behaviour
continue.
+ In the event that the target of the cyberbullying is a public
figure, there should be an additional burden on the
complainant to state that the behaviour represents real intent
to cause harm, and is more than people with opposing political
or social views "shooting their mouths off".
** CONSTODO Strand 2 -- Video Sharing Platform Services
*** CONSTODO Question 5 -- What are video-sharing services
This submission is not providing an answer to this question.
*** CONSTODO Question 6 -- Relationship between Regulator and VSPS
This submission is not providing an answer to this question.
*** CONSTODO Question 7 -- Review by Regulator
The regulator should require the following reports to be published
by online services regarding complaints made under this
legislation:
- Number of complaints, broken down by nature of complaint
- Number of complaints that were appealed to the service, broken
down by nature of complaint and basis of appeal
- Number of appeals upheld, broken down by reason for appeal
- Number of appeals rejected, broken down by reason for rejection.
- Number of complaints/appeals that were appealed further to the
regulator.
** CONSTODO Strands 3 & 4 -- Audiovisual Media Services
*** CONSTODO Question 8 -- "Content" rules for television broadcasting and on-demand services
This submission is not providing an answer to this question.
*** CONSTODO Question 9 -- Funding
RTÉ and its subsidiary services should continue to be funded by
the government, either through the licence fee, general taxation
or a mixture of both. RTÉ's editorial independence should be
re-iterated in this law (and strengthened, if required,
specifically to assure independence from the editorial demands of
advertisers). It should be anticipated that RTÉ will eventually
broadcast only over the internet, and that it will be both a
live-streaming service (e.g. providing programming in a manner
similar to it's current broadcast schedule), *and* an on-demand
service.
Funding of services other than RTÉ should only be considered for
services operated by non-profit organisations such as trusts or
charities, and such funding should also come with an assurance of
editorial independence for the recipients.
** CONSTODO Strands 1 & 2 -- European & International Context
*** CONSTODO Question 10 -- Freedoms
- Core to the consideration of the legislation is that everyone
posting to services are presumed to be innocent of an offence,
and their postings should also be presumed *not* to offend the
law.
- Accusations of harm *must* be tested to determine if they are
being made to suppress legal speech. This is particularly true
where the person making the allegation is a public figure, or is
representing a public figure.
- Where a service applies -- or is required to apply -- sanctions
on users who repeatedly post harmful information, similar
sanctions should also be applied to users who repeatedly make
*false* accusations under the law.
*** CONSTODO Question 11 -- Limited liability
Any regulatory system that makes service providers liable for what
their *users* say on those services will result in one or a
combination of the following effects:
1) Service will stop permitting users to make postings.
2) Where the value of a service is wholly, or in part, that it
allows its users to post to it, the service may have to shut
down.
3) Services will be sued or prosecuted for the actions of its
users *regardless* of the effort and good faith they put in to
"moderating" what is posted on their service -- a concept that
is borderline ludicrous in the off-line world. This would be
analogous to a car manufacturer being liable for the
consequences of car occupants not wearing their seat-belts.
There must be clarity in the regulations that a service is
protected as long as it acts in a good-faith manner to deal with
postings made by users that are determined to have been
illegal. This reflects Ireland's obligations under various trade
agreements to grant safe-harbour protections to internet services.
The regulation must also protect platforms and their users against
bad-faith accusations of harm, particularly from public
figures. If it is easier to use an accusation of "harmful content"
than to claim libel, public figures will use that facility to
suppress information they would like not to be known.
** CONSTODO Strands 1-4 -- Regulatory Structures
*** CONSTODO Question 12 -- Regulatory structure
This submission is not providing an answer to this question.
*** CONSTODO Question 13 -- Funding of regulatory structure
This submission is not providing an answer to this question.
** CONSTODO Strands 1 & 2 -- Sanctions/Powers
*** CONSTODO Question 14 -- Functions and powers
This submission is not providing an answer to this question.
*** CONSTODO Question 15 -- Sanctions
The following should be taken into account when considering
