commit d2447ed9d6bbbab8646557256ca8b1e7774799dc Author: Éibhear Ó hAnluain Date: Sat Aug 31 16:15:05 2019 +0100 Initial commit. Copying WIP file from personal area diff --git a/HarmfulCommunications201908.org b/HarmfulCommunications201908.org new file mode 100644 index 0000000..824589f --- /dev/null +++ b/HarmfulCommunications201908.org @@ -0,0 +1,776 @@ + +#+latex_class: article +#+latex_class_options: +#+latex_header: +#+latex_header_extra: +#+description: +#+keywords: +#+subtitle: +#+latex_compiler: pdflatex +#+date: \today + +#+TITLE: Submission to the Committee on Justice and Equality on /issues of online harassment, harmful communications and related offences/. +#+AUTHOR: Éibhear Ó hAnluain +#+EMAIL: eibhear.geo@gmail.com, 086 8565 666, http://www.gibiris.org/eo-blog/ +#+OPTIONS: ^:{} toc:2 H:4 num:t author:t email:t +#+TODO: CONSTODO CONSNOTES | CONSDONE + +* Planning :noexport: +** Resources :noexport: + - [[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 + [[mailto:onlineharassment@oireachtas.ie][onlineharassment@oireachtas.ie]]. + + Please do not send hard copies of your submission; hard copies + will not be accepted. + + Please do not send your submission to individual Committee + members. The Clerk will ensure all members receive copies of all + submissions. +*** What to include in your submission + + Your submission should comprise your submission document and a + separate covering letter. This allows the Committee to publish + your submission without your contact details. +**** In the covering letter, please include: + + - your name, postal address, email address and contact telephone + number + - if the submission is on behalf of an organisation, your + position in the organisation + - a brief outline of why you are making the submission +**** In the submission document please include: + + - a brief introduction, for example, explaining your area of + expertise + - any factual information that you have to offer from which the + Committee might be able to draw conclusions, or which could be + put to other parties for their reactions + - links to any publications you refer to; there is no need to + send such publications as attachments + - any recommendations to the Committee; be as specific as + possible and summarise your recommendations at the end of the + document + - if your document is more than 10 pages long, an executive + summary of the main points made in the submission + Please remember to be concise and to number your pages. +*** Important information + + Submissions sent to any other email address may not be accepted. + + Anonymous submissions cannot be accepted and will be rejected. + + Petitions and form letters may not be accepted or published. + + Submissions made to a Committee may be published as received, + either as part of a Committee report or separately, if the + Committee decides to do so. +*** Making a submission is a public process + + The Committee is not obliged to accept your document once it has + been submitted, nor is it obliged to publish any or all of the + submission if it has been accepted. However, the operations of a + parliament are a public process, and you should be aware that any + submissions made to a Committee including your identity may be + published either as part of a Committee report, or separately, if + the Committee decides to do so. +*** Need more guidance? + + If you would like more detailed guidance, please read the guidance + note Making Submissions and Presentations to Oireachtas Committees + below or contact the clerk to the Committee. +*** Clerk to the Committee + + Damian Byrne + + [[mailto:damian.byrne@oireachtas.ie][damian.byrne@oireachtas.ie]] + + (01) 618 3899 + + Committee on Justice and Equality + + Committee Secretariat, + + Houses of the Oireachtas Service, + + Kildare Street, + + Dublin 2, + + D02 XR20 +** Possible issues document (captured [2019-08-24 Sat]) +*** Online Harrassment, harmful communications and related offences + *Possible issues for address* +**** 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. +**** 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 +**** 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 +** CONSTODO Eibhear's initial thoughts :noexport: + 1. Focus on two core principles: + - Self-hosting -- individuals and groups hosting their own + services should not be neglected. + - Abuse -- services and systems should be protected from abuse +* CONSTODO Cover letter + + A Cháirde, + + My name is Éibhear Ó hAnluain. + + I have been working in the IT industry since 1994, initially as a + software engineer, more recently as an IT systems architect, and I + am currently a consultant IT systems architect. + + I am responding to this consultation in my personal capacity, and my + views here are not necessarily those of my employer, nor those of + any of my employer's clients. + + In this submission I am seeking to highlight 2 core concerns with + respect to /issues of online harassment, harmful communications and + related offences/. + - How new laws could affect small or hobbyist services + - How regulations can be abused by bad-faith actors + + + [Close here] + + Is mise, + + Éibhear Ó hAnluain, + + 112 Kincora Road, + Clonarf, + Dublin 3. + + eibhear.geo@gmail.com; +353 86 8565666. +* CONSTODO Introduction + + In this submission I am seeking to highlight 2 core concerns with + respect to /issues of online harassment, harmful communications and + related offences/. + - How new laws could affect small or hobbyist services + - How regulations can be abused by bad-faith actors + + I would like to outline some initial thoughts on these matters first + before addressing the specific questions of the consultation. + +** CONSTODO The nature of the internet from the perspective of the technology + +*** CONSTODO Technical protocols + Formally, "the Internet" is a mechanism for identifying computers + on a network, and for ensuring that messages from one computer on + the network get to another computer. For this purpose, each + computer is assigned an address (e.g. 78.153.214.9). This system + is called The Internet Protocol[fn:IP:[[https://tools.ietf.org/html/rfc791][As defined in RFC 791: + https://tools.ietf.org/html/rfc791]]]. + + These dotted-notation addresses are associated with more + easy-to-remember name-based addresses by means of a system called + the "Domain Name System"[fn:DNS:As defined by [[https://tools.ietf.org/html/rfc1034][RFC 1034 + (https://tools.ietf.org/html/rfc1034)]] and [[https://tools.ietf.org/html/rfc1035][RFC 1035 + (https://tools.ietf.org/html/rfc1035)]].]. + + There are a number of protocols[fn:protocols:For the purposes of + this document, a protocol is a set of instructions detailing how + two or more computers should express queries and responses to each + other] for transmitting messages over the Internet, with two of + the more common being + "TCP"[fn:TCP:https://tools.ietf.org/html/rfc1035] and + "UDP"[fn:UDP:https://en.wikipedia.org/wiki/User_Datagram_Protocol]. + + The software required to implement these communications protocols + is installed onto all forms of internet-connected devices, ranging + from objects as small as (or smaller than) heart pacemakers, to as + large as the largest super-computers. + + This software is not aware of the size or capacity of the device + it's installed on. Similarly, the protocols mentioned above have + no regard to the purpose its host computer has, nor to who owns + it, nor to how large it is. + + The "World Wide Web" (the Web), from a technological perspective, + is /not/ the Internet. The Web is a set of defined protocols that + make use of the Internet. Unlike the Internet and transmission + protocols -- which are designed to require each computer to regard + all others are peers -- the Web operates a little more on a + client-server basis: the software package, often referred to as a + web browser, on one computer is used to request specific + information from the software package, often referred to as the + web server, on the other computer. + + However, despite the "client-server" nature of the Web, due to the + simplicity of the software needed for a computer to be a web + server, you can find web serving software operating on extremely + small "IoT" devices. + +*** CONSTODO Low barrier of entry for useful technology + + The above demonstrates that someone with a computer, a connection + to the internet and sufficient time and determination can set up a + web service that will function just like the services we're all + familiar with. + + This is exemplified by the development of certain internet-related + technology in recent decades: + - The /Linux/ operating system kernel is named after its inventor, + Linus Torvalds, who started work on it in 1991 as a college + project -- he wanted to write a computer operating system that + was accessible to all, and which functioned in a specific + way. The Linux operating system now forms the basis of a + significant proportion of internet connected computing devices + globally[fn:LinuxProportions:https://en.wikipedia.org/wiki/Usage_share_of_operating_systems] + (including 73% of smartphones and tablet computers, through + Google's Android, and somewhere between 36% and 66% of + internet-facing server computers), and 100% of supercomputers. + - The /Apache/ web server started development when a group of 8 + software developers decided they wanted to add functionality to + one of the original web server software packages, /NCSA + httpd/. The Apache web server now powers 43.6% of all web + sites[fn:apacheProportions:[[https://w3techs.com/technologies/overview/web_server/all][https://w3techs.com/technologies/overview/web_server/all]]. Incidentally, + the no. 2 on that web page, with nearly 42% share of websites is + /nginx/. It also started out as a project by an individual who + wanted to solve a particular project.]. + - The /Firefox/ web browser was initiated by three software + developers who wanted to make a light-weight browser based on + the Mozilla code-base. At the height of its popularity, + /Firefox/ was used in 34% of web-page requests, despite not + coming installed by default on any computer or mobile + device. However, its real impact is that it was instrumental in + breaking the monopoly that Microsoft's Internet Explorer held + since the late '90s, resulting in far richer and more secure + web. + +** CONSTODO Self-hosting + +*** CONSTODO The nature of self-hosting + Both the /Linux/ operating system kernel and the /Firefox/ web + browser can be considered truly disruptive technologies. In both + of their domains, their arrival resulted in a dramatic + improvements in internet and other technologies. + + This affect isn't unique to those examples. There are many + alternatives to the systems that we are familiar with, all + developed by individuals, or small, enthusiastic teams: + - /Twitter/ isn't the only micro-blogging service: there's also + /GNU Social/, /Mastodon/. + - One alternative to /Facebook/ is /diaspora*/ + - /Nextcloud/ and /Owncloud/ are examples of alternatives to + /Dropbox/. + + In the cases of all these alternatives, users can sign up for + accounts on "instances" operated by third-party providers, or + users can set up their own instances and operate the services + themselves. + + Many of these services can federate with others. Federation in + this context means that there can be multiple instances of a + service, communicating with each other over a defined protocol, + sharing updates and posts. For users, federation means that they + can interact with other users who aren't necessarily on the same + node or instance. For administrators of instances, federation + means that they can configure their instances according to their + own preferences, rather than having to abide by the rules or + technical implementation of someone else. + +*** CONSTODO Real examples of self-hosting + I host a number of such services: + - [[http://www.gibiris.org/eo-blog][/Éibhear/Gibiris/]] is my blog site. + - [[https://social.gibiris.org/][/Social Gibiris/]] is a micro-blogging service that is federated + with others using the /AtomPub/ technology. Thus, /Social + Gibiris/ is federated with many other instances of /GNU Social/, + /Mastodon/ and /Pleroma/. + - [[https://git.gibiris.org/][/git.gibiris.org/]] is a source-code sharing site that I use to + make publicly available some of the software that I develop for + myself. + - [[https://news.gibiris.org/][/news.gibiris.org/]] is a news-aggregation that allows me to + gather all the news sources of interest to me into one location, + which I can then access from wherever I am. + - [[https://cloud.gibiris.org/nextcloud][/cloud.gibiris.org/]] is a file-sharing platform that I use with + my family when we are collaborating on projects (e.g. school + projects, home improvement projects, etc.) + - [[https://matrix.gibiris.org/][/matrix.gibiris.org/]] is an instant-messaging system which I set + up for the purposes of communicating with my family and close + friends. + + Most of these services are hosted on a computer within my home. 3 + of these services provide information to the general public, and + the other three are accessible only to those who set up accounts. + + 2 of those services, /git.gibiris.org/ and /Social Gibiris/ can + process or post user-uploaded information. + +*** CONSTODO Regulation of self-hosted services + + While it is attractive to create regulations to manage the large, + profit-making organisations, it is imperative that such + regulations don't harm the desire of those who want to create + their own services. + + Any regulation that applies liability on the service for someone + else's words or behaviour, is a regulation that can be adhered to + only by organisations with large amounts of money to hand. For + example, if the regulation was to apply liability on me for + posting made by someone else (and *somewhere* else -- these are + federated services) on the 2 implicated services that I run, I + would have to shut them down, as I would not be able to put in + place the necessary infrastructure that would mitigate my + liability[fn:copyrightDirective:This assumes that my services + aren't forced to shut down by the new EU Copyright Directive + anyway]. Given that my services are intended to provide a positive + benefit to me, my family members and my friends, and that I have + no desire to facilitate harmful behaviour on those services, a law + forcing me to shut these services down benefits no one. + + Similarly, a regulation that demands responses from services on + the assumption that the service will be manned at all times, + requires individuals who are self-hosting their services to be + available at all times (i.e. to be able to respond regardless of + whether they are asleep, or overseas on a family holiday, etc.) + + This submission comes from this perspective: that small operators + should not be unduly harmed by regulations; the likelihood of this + harm coming to pass is greater when such small operators are not + even considered during the development of the regulations. If the + regulations have the (hopefully unintended) effect of harming such + small operators, the result will not just be the loss of these + services, but also the loss of opportunity to make the Web richer + by means of the imposition of artificial barriers to entry. Such + regulations will inhibit the development of ideas that pop into + the heads of individuals, who will realise them with nothing more + than a computer connected to the internet. + +** CONSTODO Abuse + + All systems that seek to protect people from harmful or other + objectionable material (e.g. copyright infringement, terrorism + propaganda, etc.) have, to date, been amenable to abuse. For + example, in a recent court filing, Google claimed that 99.97% of + infringement notices it received in from a single party in January + 2017 were + bogus[fn:googleTakedown:https://www.techdirt.com/articles/20170223/06160336772/google-report-9995-percent-dmca-takedown-notices-are-bot-generated-bullshit-buckshot.shtml]: + + #+BEGIN_QUOTE + A significant portion of the recent increases in DMCA submission + volumes for Google Search stem from notices that appear to be + duplicative, unnecessary, or mistaken. As we explained at the San + Francisco Roundtable, a substantial number of takedown requests + submitted to Google are for URLs that have never been in our search + index, and therefore could never have appeared in our search + results. For example, in January 2017, the most prolific submitter + submitted notices that Google honored for 16,457,433 URLs. But on + further inspection, 16,450,129 (99.97%) of those URLs were not in + our search index in the first place. Nor is this problem limited to + one submitter: in total, 99.95% of all URLs processed from our + Trusted Copyright Removal Program in January 2017 were not in our + index. + #+END_QUOTE + + Aside from the percentage of URLs noted that don't exist in + Google's index, that a single entity would submit more than 16 + million URLs for delisting in a single month is staggering, and + demonstrates a compelling point: there is no downside for a + bad-faith actor seeking to take advantage of a system for + suppressing information[fn:downside:The law being used in this + specific case is the US Digital Millennium Copyright Act. It + contains a provision that claims of copyright ownership on the part + of the claimant are to be made under penalty of perjury. However, + that provision is very weak, and seems not to be a deterrent for a + determined agent: + https://torrentfreak.com/warner-bros-our-false-dmca-takedowns-are-not-a-crime-131115]. + + More recently, there is the story of abuse of the GDPR's /Right to + be Forgotten/. An individual from Europe made a claim in 2014, + under the original /Right to be Forgotten/, to have stories related + to him excluded from Google searches for him. This seemed to have + been an acceptable usage under those rules. However, that this + claim was made and processed seems also to be a matter of public + interest, and some stories were written in the online press + regarding it. Subsequently, the same individual used the /Right to + be Forgotten/ to have *these* stories excluded from Google + searches. + + This cat-and-mouse game continues to the extent that the individual + is (successfully) requiring Google to remove stories *about his + use* of the GDPR's /Right to be Forgotten/. Even stories that cover + *only* his /Right to be Forgotten/ claims, making no reference at + all to the original (objected-to) + story[fn:RTBF:https://www.techdirt.com/articles/20190320/09481541833]. This + is clearly an abuse of the law: Google risks serious sanction from + data protection authorities if it decides to invoke the + "... exercising the right of freedom of expression and information" + exception[fn:FoE_GPDR:GDPR, Article 17, paragraph 3(a)] and it is + determined that the exception didn't apply. However, the claimant + suffers no sanction if it is determined that the exception /does/ + apply. + + In systems that facilitate censorship[fn:censorship:While seeking + to achieve a valuable and socially important goal, this + legislation, and all others of its nature, facilitates censorship: + as a society, we should not be so squeamish about admitting this.], + it is important to do more than merely assert that service + providers should protect fundamental rights for expression and + information. In a regime where sending an e-mail costs nearly + nothing, where a service risks serious penalties (up to and + including having to shutdown) and where a claimant suffers nothing + for abusive claims, the regime is guaranteed to be abused. + +** CONSTODO Harmful content definition + + This submission will not offer any suggestions as to what should be + considered "harmful content". However, I am of the belief that if + "harmful content" is not narrowly defined, the system will allow + bad actors to abuse it, and in the context where there is no risk + to making claims, and great risk in not taking down the reported + postings, loose definitions will only make it easier for + non-harmful content to be removed. + +* CONSTODO Answers to consultation questions +** 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 + sanctions on platforms + - The nature of the operation + + Large, global, profit-based private organisations providing + services to the general population. (examples include YouTube, + Facebook, Twitter). + + Smaller, local, profit-based private organisations providing + services to the general population, focused on the region + (examples might include boards.ie, everymum.ie, etc.) + + Small, non-profit forums set up by locally-based and -focused + organisations such as soccer clubs, or school parents' + associations[fn:useFacebook:There is often the temptation to + advise these organisations to use larger platforms like + Facebook or Google. Some organisations may not want to avail + of those services, and the reasons for this are not + relevant. What's important is that deciding not to use these + platforms is valid, and these decisions should be protected + and encouraged, not inhibited.] + + Individuals, hosting their own platforms. + - The good-faith efforts of the operation to respond to + accusations of harm. + - The capacity of the service to respond -- smaller operations + can't afford 24-hour monitoring to respond to such accusations, + and the law should not require it. Such services should be able + to avail of bad-faith actors seeking to interfere with their + operations by overwhelming them with false accusations of harm + that need to be dealt with. + - Who the accuser is -- public figures should be prevented from + using accusations of "harmful content" to remove information + that is merely critical of them or their behaviour. +*** CONSTODO Question 16 -- Thresholds + This submission is not providing an answer to this question.