On 23 October 2018 ICCL, along with our partners in CIVICUS, submitted our opinion on Donnchadh Ó Laoghaire’s Digital Safety Commissioner Bill to the Joint Oireachtas Committee on Communications, Climate Action and Environment. The Bill proposes the establishment of a Digital Protection Commissioner to regulate the removal of “harmful digital communications” from the internet by service providers (“digital services undertakings”). It would also provide for the creation of a code of practice for digital service providers and other related matters.
We share the concerns of the Committee about the ability of online social media platforms to adequately self-regulate. We applaud the efforts of Deputy Ó Laoghaire in bringing forward the draft Bill. However, we are concerned that freedom of expression would be unduly limited by this Bill in its current iteration and also have practical reservations.
Why is the Bill not compatible with freedom of expression regulations?
- There are certain legitimate restrictions on the right to free speech (respect for the rights of others, the protection of national security or public order and/or the protection of public health or morals). However, this Bill does not define which of these legitimate restrictions it would come under.
- There is no definition of the “harmful digital communications” which would be removed. If this were to be regulated by service providers themselves, there could be a wide gap in understanding of what constitutes harm.
- We are doubtful of the ability and/or will of online social media platforms to self-regulate whilst also respecting freedom of expression. Complex questions such as these should be adjudicated by public rather than private institutions, whose motivations are mainly economic.
- There are no mechanisms for appeal nor remedy when a user feels their content is unfairly removed.
What are some of our practical concerns?
- The broad definition of “digital services undertakings” could encompass any individual operating any online forum and expose them to regulatory requirements they may not have capacity to meet.
- The Bill seeks to apply itself outside of the Irish jurisdiction.
- There is scant detail as to the office, independence and quality control mechanisms of the Digital Safety Commissioner.
- Without a clear definition of the “affected person” there is scope for the legislation to be used in a campaign of complaints against legitimate but unpopular content.