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#+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.