diff --git a/HarmfulCommunications201908.org b/HarmfulCommunications201908.org index 57da886..c568a23 100644 --- a/HarmfulCommunications201908.org +++ b/HarmfulCommunications201908.org @@ -344,23 +344,7 @@ However, prior to addressing these topics, I would like to raise some ambiguities that this wider discussion will encounter. - - The first is the meaning of the term /self-regulation/. If a - measure of self-regulation to address these concerns is - acceptable, then it would be necessary for public-perception - reasons, to be clear on what that means. /Self-regulation/ could - mean either where each service operator manages matters of - harassment and harmful communications according to their own rules - and processes. This is currently how the large service providers - we're most familiar with operate. However, /self-regulation/ may - also refer to regulation by a non-governmental industry-funded - body, following the model of the press council or the advertising - standards authority, where rules and processes are agreed among - the operators as a set of standards, and where decisions of - compliance to these are made by this body. - - In order to avoid this ambiguity, I will use the term - "self-moderation" to refer to the former, and the term - "industry-regulation" for the latter. + - The first is the meaning of the term /self-regulation/. * CONSDONE Self-hosting ** CONSDONE Self-hosting @@ -595,7 +579,7 @@ pop into the heads of individuals, who will realise them with nothing more than a computer connected to the internet. -* CONSTODO Other considerations +* CONSDONE Other considerations While the main focus of this submission is to highlight the potential risk to self-hosters from regulation that neglect to consider the practice, I would like to take the opportunity to @@ -728,7 +712,7 @@ decision as it didn't have time to determine the full context, or because it misinterpreted or misunderstood the context. -** CONSTODO User Behaviour +** CONSDONE User Behaviour Many believe that the way to deal with abusive or harmful material online is to punish the services that host the material. This is reasonable if the material was placed onto the service by those who @@ -763,7 +747,7 @@ there is no attempt to change behaviour, then abusive people will simply work around the controls and continue to abuse. -** CONSTODO Investigation support +** CONSDONE Investigation support In response to the live-streaming of that horrific shooting dead of more than 50 people in New Zealand earlier this year, that country @@ -777,14 +761,30 @@ it might include - to appeal for help in finding someone caught up in the masssacre - Legitimate news reporting of such an event. - - to help investigate the shooting and its circumstances + - to help investigate the shooting and its + circumstances[fn:ForArch:Forensic Architecture, + https://forensic-architecture.org/, is a research group that + investigates alleged abuses of human rights using image and video + records of events. To criminalise the sharing of such imagery and + videos with no regard as to the purpose for the sharing plays + directly into the hands of those who disregard victims' civil + rights.] - training for law enforcement or terrorism- or disaster-response personnel. However, if the law says that no form of sharing is permitted, then none of the entirely legitimate purposes would be possible, and the world would be that bit less safe as a result. -** CONSTODO Encrypted services + + There is a similar consideration for abusive material posted + online. If a communication is deemed to be an offence, care needs + to be taken to ensure that the "removal" of such a communication + (or a set of such communications) is not equivalent of the + destruction of evidence. This is particularly true in the context + that it is now very easy for anyone to forge screen-shots of online + postings. + +** CONSDONE Encrypted services Some believe that if end-to-end encryption services that prevent security services from accessing material were banned or @@ -828,105 +828,264 @@ * CONSTODO Answers to consultation questions The follows are some answers to the questions posed in the call for submissions. -** CONSTODO Definition of communication in legislation - 1. There are currently significant gaps in legislation with regard - to harassment and newer, more modern forms of communication. Is - there a need to expand the definition of ‘communications’ to - include online and digital communications tools such as - WhatsApp, Facebook, Snapchat, etc. when addressing crimes of - bullying or harassment? - - Éibhear comment :: (/Address in introduction/) It is necessary - not to assume that the current services that operate will - be the primary services in 5 or 10 years' time. - 2. What lessons can be learned from models used in other - jurisdictions such as the UK, New Zealand, Australia and other - European countries where legislation is now in place to address - these issues? How do we establish an appropriate model without - compromising free speech? - - Éibhear comment :: (/Address in answer to specific questions/) - UK: duty of care is inappropriate. New Zealand: allowing a - committee to decide what is objectionable, thus restricting - not only those who want to share objectionable material, - but also those who want to report on it. - 3. How do we ensure that any legislation that is enacted is - flexible enough to keep up with changing and advancing - technologies, new apps and other online forums, including the - more familiar social media sites? - - Éibhear's comments :: (/Core concern/) Hmm. This is the meat - of the submission. -** CONSTODO Harassment, stalking & other forms of online abuse - 4. [@4] Online harassment can take the form of on-consensual taking - and distribution of intimate images or videos, otherwise known - as ‘revenge porn’, ‘upskirting’, ‘downblousing’ and other forms - of sharing of imagery online without consent. What approaches - are taken to addressing these issues in other jurisdictions? - - Éibhear's comment :: No answer for this - 5. New offences are proposed to cover these issues in Deputy - Brendan Howlin’s Private Members Bill on this subject. Is the - creation of new offences necessary, or is existing legislation - sufficient? Should other forms of image-sharing issues - such as - exposure - also be addressed? - - Éibhear's comment :: No answer for this - 6. What kind of oversight and regulation of online service - providers is possible/used in other jurisdictions? Currently, - online providers are self regulated. Is a proactive, - self-regulating approach from online companies to activities - such as revenge porn and other forms of harassment preferable to - the creation of more laws? - - Éibhear's comment :: Important to know the difference - between "self regulated", and pro-active - moderation. These service moderation according to their - own rules; there is no industry authority like the press - council or the advertising standards authority, which are - self-regulatory regimes. - 7. Is any data provided by online service providers in relation to - the reporting or prevalence of activities such as - upskirting/revenge porn/cyberbullying and other online behaviour - that can be used to develop and draft future legislation? - - Éibhear's comment :: No data. However, services should be - encouraged to issue reports on their moderation efforts. - 8. To what extent are An Garda Síochána equipped and resourced to - deal with the issues arising from harmful online communications - such as these? - - Éibhear's comment :: No answer for this - 9. Should ‘cyberstalking’ be treated as a separate offence to - online harassment? What constitutes stalking-type behaviour - online? Is there a need to legislative specifically for this - activity? - - Éibhear's comment :: No answer for this - 10. Based on the findings of other jurisdictions such as in the UK, - An Garda Síochána will require consistent training in order to - maintain an appropriate level of knowledge with regard to - indictable behaviours. Are resources available for this? - - Éibhear's comment :: No answer for this - 11. Fake accounts/troll accounts used to harass or target others - with abuse – what measures can be taken in relation to these - without effecting freedom of expression? - - Éibhear's comment :: Care needs to be taken to ensure - manage/prevent false identification of accounts as 'fake' - or 'troll'. - 12. Do other jurisdictions have statutory measures to protect - victim identities in cases of online harassment being released - online posthearings, etc? - - Éibhear's comment :: No answer for this -** CONSTODO Harmful online behaviour and young people - 13. [@13] How do we most appropriately regulate social media - platforms to prevent cyberbullying and inappropriate sharing of - personal images? - - Éibhear's comment :: take details from earlier submission. - 14. For young people who participate in such online behaviour as - consensual image sharing, how can it be ensured that they are - not inadvertently criminalised when legislation is enacted? - What safeguards can be put in place? - - Éibhear's comment :: No answer for this - 15. Deputy Brendan Howlin’s Private Members Bill provides that - those under 17 should not be fined/imprisoned but put into - relevant education or supports. Would these supports be part of - the same educational supports offered to all young - people/schools or would they be a separate entity? Are current - supports being utilised? Are there sufficient resources to - provide for such a provision when enacted? - - Éibhear's comment :: No answer for this +** CONSDONE Definition of communication in legislation + - Question 1 :: There are currently significant gaps in legislation + with regard to harassment and newer, more modern + forms of communication. Is there a need to expand + the definition of ‘communications’ to include + online and digital communications tools such as + WhatsApp, Facebook, Snapchat, etc. when addressing + crimes of bullying or harassment? + + Answer :: Yes. However, it is important to consider the following: + * Not all such tools are as large and have such human and + financial resources as the specific services referred + to. Legislation that makes the assumption that such + communication can take place only through services that are + as large and wealthy as these will stand a very good chance + of restricting or limiting competition in these services' + domains by imposing regulatory barriers of entry. I expand on + this in the "Self-hosting" section of this submission. + * Legislation should focus not on the tool, but on the + behaviour. In the main, therefore, it's the behaviour of + those performing the bullying or abuse that should be + targetted and not the "tool" used as the communications + medium. I expand on this in the "User behaviour" section of + this submission. + - Question 2 :: What lessons can be learned from models used in + other jurisdictions such as the UK, New Zealand, + Australia and other European countries where + legislation is now in place to address these + issues? How do we establish an appropriate model + without compromising free speech? + + Answer :: The incentives need to be present to ensure that the + balance is managed correctly. Any legislation, such + as + /FOSTA-SESTA/[fn:FOSTA-SESTA:https://en.wikipedia.org/wiki/Stop_Enabling_Sex_Traffickers_Act] + in the US, that seeks merely to punish web sites, + will to more harm than good[fn:SOSTAEffect:Lura + Chamberlain, FOSTA: A Hostile Law with a Human Cost, + 87 Fordham L. Rev. 2171 (2019). Available at: + https://ir.lawnet.fordham.edu/flr/vol87/iss5/13]. The + incentive for US-based web site operators in this + case is either *never* to host information for or by + sex workers for fear of falling foul of the law, or + to cease operations altogether. The result has been a + human rights disaster, as sex workers, particularly + women, are now at greater risk than before due to the + failure of the law to consider the effect of a + straight ban. + + The recently-passed new EU Copyright directive + mandates the filtering of user uploads based on prior + notice that such uploads *may* be infringing + copyright, subject to severe penalties, but requires + mere respect for users' freedom of speech with no + penalties attaching to failing to do so. The + incentive for the service operators here is to err on + the side of suppressing material regardless of + anyone's freedom of expression, as the consequences + of not doing so could be catastrophic for the service + operator. + + The proposal in the UK to apply a duty of care to + service operators is also destined for failure, as a + duty of care is a physical-world concept that has no + suitable analogy in the context of internet services. + + Ironically, the likely best regulatory approach is + one that online services currently operate under in + the US and to a large degree in Europe: intermediary + liability protection. All these services maintain + terms and conditions ("Community Rules", "Code of + Conduct", etc.) and confirmed violations of these + result in sanctions on the users. However, where + services aren't aware of violations, they are + protected on the grounds that the behaviour that is + objectionable is not that of the service operator, + but is of the user. In short, punish the user, not + the service provider, unless -- of course -- the + service provider is complicit. + - Question 3 :: How do we ensure that any legislation that is + enacted is flexible enough to keep up with changing + and advancing technologies, new apps and other + online forums, including the more familiar social + media sites? + + Answer :: This is this submissions core concern. For + legislation to focus on the technology, and not on + the behaviour, to focus on the service operator and + not on the real offender, runs real risks of damaging + human rights of totally innocent parties, as well as + stifling innovation and consolidating the market + positions of the majar operators +** CONSDONE Harassment, stalking & other forms of online abuse + - Question 4 :: Online harassment can take the form of + on-consensual taking and distribution of intimate + images or videos, otherwise known as ‘revenge + porn’, ‘upskirting’, ‘downblousing’ and other forms + of sharing of imagery online without consent. What + approaches are taken to addressing these issues in + other jurisdictions? + + Answer :: This submission is not offering any answer to this + question. + - Question 5 :: New offences are proposed to cover these issues in + Deputy Brendan Howlin’s Private Members Bill on + this subject. Is the creation of new offences + necessary, or is existing legislation sufficient? + Should other forms of image-sharing issues - such + as exposure - also be addressed? + + Answer :: This submission is not offering any answer to this + question. + - Question 6 :: What kind of oversight and regulation of online + service providers is possible/used in other + jurisdictions? Currently, online providers are self + regulated. Is a proactive, self-regulating approach + from online companies to activities such as revenge + porn and other forms of harassment preferable to + the creation of more laws? + + Answer :: If a measure of self-regulation to address these + concerns is acceptable, then it would be necessary + for public-perception reasons, to be clear on what + that means. /Self-regulation/ could mean either where + each service operator manages matters of harassment + and harmful communications according to their own + rules and processes. This is currently how the large + service providers we're most familiar with + operate. However, /self-regulation/ may also refer to + regulation by a non-governmental industry-funded + body, following the model of the press council or the + advertising standards authority, where rules and + processes are agreed among the operators as a set of + standards, and where decisions of compliance to these + are made by this body. + + Aside from making this comment on the term, what is + more important is getting the competing rights + correctly balanced, rather than the model of + regulation that asserts that balance. + + - Question 7 :: Is any data provided by online service providers in + relation to the reporting or prevalence of + activities such as upskirting/revenge + porn/cyberbullying and other online behaviour that + can be used to develop and draft future + legislation? + + Answer :: Each of the major sites prepare what are called + "Transparency Reports". However, many of these + reports are constrained by rules laid out by (in + particular) the so-called "Intelligence Community" of + the United States. Thus these reports are not as + transparent as they could be. + + It should be a requirement for such services to issue + a periodic report detailing the following statistics + in each: + * The number of reported postings, broken down by nature of the + complaint + * Number of reports that were appealed to the service, broken + down by the nature of the complaint and the 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 or courts system. + - Question 8 :: To what extent are An Garda Síochána equipped and + resourced to deal with the issues arising from + harmful online communications such as these? + + Answer :: This submission is not offering any answer to this + question. + - Question 9 :: Should ‘cyberstalking’ be treated as a separate + offence to online harassment? What constitutes + stalking-type behaviour online? Is there a need to + legislative specifically for this activity? + + Answer :: This submission is not offering any answer to this + question. + - Question 10 :: Based on the findings of other jurisdictions such + as in the UK, An Garda Síochána will require + consistent training in order to maintain an + appropriate level of knowledge with regard to + indictable behaviours. Are resources available for + this? + + Answer :: This submission is not offering any answer to this + question. + - Question 11 :: Fake accounts/troll accounts used to harass or + target others with abuse – what measures can be + taken in relation to these without effecting + freedom of expression? + + Answer :: The assumption that an account that isn't clearly + associated with a personal identity is "fake" needs + to be challenged. It is the /behaviour/ of the + account than needs to be considered. This is true of + accounts that are associated with indentifiable + individuals as well as of pseudonymous + accounts[fn:trolls:A well-known Irish public figure + who offers commentary on many aspects of society + frequently posts messages on Twitter designed to + elicit angry responses. I describe this person as "A + master of the false equivalence". This is the classic + online trolling behaviour. Similarly, on the 18th + September 2019, a prominant UK journalist tweeted + personal details of a father who publicly challenged + UK Prime Minister Boris Johnson regarding the state + of the NHS. This was construed by many as a + deliberate trolling to inflict a measure of + unofficial retribution on the man.]. + + It should not be assumed that pseudonymous accounts + are created in order for the users to escape legal + consequences for criminal communications. There are + many reasons for maintaining a psuedonymous presence + online, some of which I have personally encountered + being: + - To protect against a physically abusive family + member + - To protect against an employer that monitors online + activities + - To engage online in a manner that deals with prejudices + (e.g. many respond to women differently than to men, to + people of a different religion or skin colour than to those + of the same religion or skin colour, etc.) + - To protect against action from their own governments whose + laws are less respectful of civil rights as we would think + Ireland's are. + + + It should not be assumed that a pseudonymous account has been + created for reasons of abuse or harmful communication. In fact, + there's good reason to assume that the significant majority of + pseudonymous accounts operate for completely innocent + reaons[fn:realnames:facebook excepted. However, facebook's + real-name policy is itself wrong, and does a great deal of + damage to people who have good reasons for their names not to + be associated with their online presences.]. + - Question 12 :: Do other jurisdictions have statutory measures to + protect victim identities in cases of online + harassment being released online posthearings, + etc? + + Answer :: This submission is not offering any answer to this + question. +** CONSDONE Harmful online behaviour and young people + - Question 13 :: How do we most appropriately regulate social media + platforms to prevent cyberbullying and + inappropriate sharing of personal images? + + Answer :: I refer you to the details of this submission. + - Question 14 :: For young people who participate in such online + behaviour as consensual image sharing, how can it + be ensured that they are not inadvertently + criminalised when legislation is enacted? What + safeguards can be put in place? + + Answer :: This submission is not offering any answer to this + question. + - Question 15 :: Deputy Brendan Howlin’s Private Members Bill + provides that those under 17 should not be + fined/imprisoned but put into relevant education + or supports. Would these supports be part of the + same educational supports offered to all young + people/schools or would they be a separate entity? + Are current supports being utilised? Are there + sufficient resources to provide for such a + provision when enacted? + + Answer :: This submission is not offering any answer to this + question. * CONSDONTDO Answers to consultation questions :noexport: ** CONSTODO Strand 1 -- National Legislative Proposal