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However, prior to addressing these topics, I would like to raise However, prior to addressing these topics, I would like to raise
some ambiguities that this wider discussion will encounter. some ambiguities that this wider discussion will encounter.
- The first is the meaning of the term /self-regulation/. If a - The first is the meaning of the term /self-regulation/.
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.
* CONSDONE Self-hosting * CONSDONE Self-hosting
** CONSDONE Self-hosting ** CONSDONE Self-hosting
@ -595,7 +579,7 @@
pop into the heads of individuals, who will realise them with pop into the heads of individuals, who will realise them with
nothing more than a computer connected to the internet. 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 While the main focus of this submission is to highlight the
potential risk to self-hosters from regulation that neglect to potential risk to self-hosters from regulation that neglect to
consider the practice, I would like to take the opportunity 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 decision as it didn't have time to determine the full context, or
because it misinterpreted or misunderstood the context. 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 Many believe that the way to deal with abusive or harmful material
online is to punish the services that host the material. This is online is to punish the services that host the material. This is
reasonable if the material was placed onto the service by those who 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 there is no attempt to change behaviour, then abusive people will
simply work around the controls and continue to abuse. 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 In response to the live-streaming of that horrific shooting dead of
more than 50 people in New Zealand earlier this year, that country more than 50 people in New Zealand earlier this year, that country
@ -777,14 +761,30 @@
it might include it might include
- to appeal for help in finding someone caught up in the masssacre - to appeal for help in finding someone caught up in the masssacre
- Legitimate news reporting of such an event. - 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 - training for law enforcement or terrorism- or disaster-response
personnel. personnel.
However, if the law says that no form of sharing is permitted, then However, if the law says that no form of sharing is permitted, then
none of the entirely legitimate purposes would be possible, and the none of the entirely legitimate purposes would be possible, and the
world would be that bit less safe as a result. 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 Some believe that if end-to-end encryption services that prevent
security services from accessing material were banned or security services from accessing material were banned or
@ -828,105 +828,264 @@
* CONSTODO Answers to consultation questions * CONSTODO Answers to consultation questions
The follows are some answers to the questions posed in the call for The follows are some answers to the questions posed in the call for
submissions. submissions.
** CONSTODO Definition of communication in legislation ** CONSDONE Definition of communication in legislation
1. There are currently significant gaps in legislation with regard - Question 1 :: There are currently significant gaps in legislation
to harassment and newer, more modern forms of communication. Is with regard to harassment and newer, more modern
there a need to expand the definition of ‘communications’ to forms of communication. Is there a need to expand
include online and digital communications tools such as the definition of ‘communications’ to include
WhatsApp, Facebook, Snapchat, etc. when addressing crimes of online and digital communications tools such as
bullying or harassment? WhatsApp, Facebook, Snapchat, etc. when addressing
- Éibhear comment :: (/Address in introduction/) It is necessary crimes of bullying or harassment?
not to assume that the current services that operate will + Answer :: Yes. However, it is important to consider the following:
be the primary services in 5 or 10 years' time. * Not all such tools are as large and have such human and
2. What lessons can be learned from models used in other financial resources as the specific services referred
jurisdictions such as the UK, New Zealand, Australia and other to. Legislation that makes the assumption that such
European countries where legislation is now in place to address communication can take place only through services that are
these issues? How do we establish an appropriate model without as large and wealthy as these will stand a very good chance
compromising free speech? of restricting or limiting competition in these services'
- Éibhear comment :: (/Address in answer to specific questions/) domains by imposing regulatory barriers of entry. I expand on
UK: duty of care is inappropriate. New Zealand: allowing a this in the "Self-hosting" section of this submission.
committee to decide what is objectionable, thus restricting * Legislation should focus not on the tool, but on the
not only those who want to share objectionable material, behaviour. In the main, therefore, it's the behaviour of
but also those who want to report on it. those performing the bullying or abuse that should be
3. How do we ensure that any legislation that is enacted is targetted and not the "tool" used as the communications
flexible enough to keep up with changing and advancing medium. I expand on this in the "User behaviour" section of
technologies, new apps and other online forums, including the this submission.
more familiar social media sites? - Question 2 :: What lessons can be learned from models used in
- Éibhear's comments :: (/Core concern/) Hmm. This is the meat other jurisdictions such as the UK, New Zealand,
of the submission. Australia and other European countries where
** CONSTODO Harassment, stalking & other forms of online abuse legislation is now in place to address these
4. [@4] Online harassment can take the form of on-consensual taking issues? How do we establish an appropriate model
and distribution of intimate images or videos, otherwise known without compromising free speech?
as ‘revenge porn’, ‘upskirting’, ‘downblousing’ and other forms + Answer :: The incentives need to be present to ensure that the
of sharing of imagery online without consent. What approaches balance is managed correctly. Any legislation, such
are taken to addressing these issues in other jurisdictions? as
- Éibhear's comment :: No answer for this /FOSTA-SESTA/[fn:FOSTA-SESTA:https://en.wikipedia.org/wiki/Stop_Enabling_Sex_Traffickers_Act]
5. New offences are proposed to cover these issues in Deputy in the US, that seeks merely to punish web sites,
Brendan Howlin’s Private Members Bill on this subject. Is the will to more harm than good[fn:SOSTAEffect:Lura
creation of new offences necessary, or is existing legislation Chamberlain, FOSTA: A Hostile Law with a Human Cost,
sufficient? Should other forms of image-sharing issues - such as 87 Fordham L. Rev. 2171 (2019). Available at:
exposure - also be addressed? https://ir.lawnet.fordham.edu/flr/vol87/iss5/13]. The
- Éibhear's comment :: No answer for this incentive for US-based web site operators in this
6. What kind of oversight and regulation of online service case is either *never* to host information for or by
providers is possible/used in other jurisdictions? Currently, sex workers for fear of falling foul of the law, or
online providers are self regulated. Is a proactive, to cease operations altogether. The result has been a
self-regulating approach from online companies to activities human rights disaster, as sex workers, particularly
such as revenge porn and other forms of harassment preferable to 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? the creation of more laws?
- Éibhear's comment :: Important to know the difference + Answer :: If a measure of self-regulation to address these
between "self regulated", and pro-active concerns is acceptable, then it would be necessary
moderation. These service moderation according to their for public-perception reasons, to be clear on what
own rules; there is no industry authority like the press that means. /Self-regulation/ could mean either where
council or the advertising standards authority, which are each service operator manages matters of harassment
self-regulatory regimes. and harmful communications according to their own
7. Is any data provided by online service providers in relation to rules and processes. This is currently how the large
the reporting or prevalence of activities such as service providers we're most familiar with
upskirting/revenge porn/cyberbullying and other online behaviour operate. However, /self-regulation/ may also refer to
that can be used to develop and draft future legislation? regulation by a non-governmental industry-funded
- Éibhear's comment :: No data. However, services should be body, following the model of the press council or the
encouraged to issue reports on their moderation efforts. advertising standards authority, where rules and
8. To what extent are An Garda Síochána equipped and resourced to processes are agreed among the operators as a set of
deal with the issues arising from harmful online communications standards, and where decisions of compliance to these
such as these? are made by this body.
- Éibhear's comment :: No answer for this
9. Should ‘cyberstalking’ be treated as a separate offence to Aside from making this comment on the term, what is
online harassment? What constitutes stalking-type behaviour more important is getting the competing rights
online? Is there a need to legislative specifically for this correctly balanced, rather than the model of
activity? regulation that asserts that balance.
- Éibhear's comment :: No answer for this
10. Based on the findings of other jurisdictions such as in the UK, - Question 7 :: Is any data provided by online service providers in
An Garda Síochána will require consistent training in order to relation to the reporting or prevalence of
maintain an appropriate level of knowledge with regard to activities such as upskirting/revenge
indictable behaviours. Are resources available for this? porn/cyberbullying and other online behaviour that
- Éibhear's comment :: No answer for this can be used to develop and draft future
11. Fake accounts/troll accounts used to harass or target others legislation?
with abuse – what measures can be taken in relation to these + Answer :: Each of the major sites prepare what are called
without effecting freedom of expression? "Transparency Reports". However, many of these
- Éibhear's comment :: Care needs to be taken to ensure reports are constrained by rules laid out by (in
manage/prevent false identification of accounts as 'fake' particular) the so-called "Intelligence Community" of
or 'troll'. the United States. Thus these reports are not as
12. Do other jurisdictions have statutory measures to protect transparent as they could be.
victim identities in cases of online harassment being released
online posthearings, etc? It should be a requirement for such services to issue
- Éibhear's comment :: No answer for this a periodic report detailing the following statistics
** CONSTODO Harmful online behaviour and young people in each:
13. [@13] How do we most appropriately regulate social media * The number of reported postings, broken down by nature of the
platforms to prevent cyberbullying and inappropriate sharing of complaint
personal images? * Number of reports that were appealed to the service, broken
- Éibhear's comment :: take details from earlier submission. down by the nature of the complaint and the basis of appeal
14. For young people who participate in such online behaviour as * Number of appeals upheld, broken down by reason for appeal
consensual image sharing, how can it be ensured that they are * Number of appeals rejected, broken down by reason for
not inadvertently criminalised when legislation is enacted? rejection.
What safeguards can be put in place? * Number of complaints/appeals that were appealed further to
- Éibhear's comment :: No answer for this the regulator or courts system.
15. Deputy Brendan Howlin’s Private Members Bill provides that - Question 8 :: To what extent are An Garda Síochána equipped and
those under 17 should not be fined/imprisoned but put into resourced to deal with the issues arising from
relevant education or supports. Would these supports be part of harmful online communications such as these?
the same educational supports offered to all young + Answer :: This submission is not offering any answer to this
people/schools or would they be a separate entity? Are current question.
supports being utilised? Are there sufficient resources to - Question 9 :: Should ‘cyberstalking’ be treated as a separate
provide for such a provision when enacted? offence to online harassment? What constitutes
- Éibhear's comment :: No answer for this 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: * CONSDONTDO Answers to consultation questions :noexport:
** CONSTODO Strand 1 -- National Legislative Proposal ** CONSTODO Strand 1 -- National Legislative Proposal