Mr. Ronan Lupton:

It is not my intention to read my statement, as it runs to 15 pages. However I will very quickly give an overview of the three areas I cover. The statement is available to the committee and deals with these points in more detail. Before I start I would like to make a point about positioning. I represent the telecommunications industry in another guise. Everything I say today is in my full-time role as a lawyer and a member of the Bar and the Law Library. Nothing that I utter is to be connected to any other representation or any other advocacy roles that I may hold.

I will deal with three areas in my submission. The first is the role of hosts under EU Directive No. 2000/31/EC, the electronic commerce directive, and SI 68/2003, particularly regulation 18. I wish to make several points on that. The headline point is that in its deliberations the committee should be careful about declaring hosts to be publishers. The knock-on effect of making such a recommendation and reporting in that fashion could have serious effects for commerce and social interaction online. I acknowledge a lot of what Dr. Aiken has said. I am not in conflict at all with what she says about harm and issues in cyberspace in that sense. However, there is an overarching issue here. European law is directly effective and supreme and reforms to the e-commerce package are en route. Dr. Ursula von der Leyen, who is hopefully the incoming President of the European Commission, has indicated that a package of reforms on digital safety will be brought forward quite shortly.

I want to make a couple of points which are consistent with Dr. Aiken's points. It is somewhat disappointing that the recommendations of the Law Reform Commission report and the Internet content advisory group have effectively sat on a shelf since 2016 and 2014, respectively. There are very good recommendations in those reports and as such I respectfully submit that this committee should not reinvent the wheel.

One issue I now see coming before the courts regularly now concerns applications for Norwich Pharmacal orders, disclosure orders under which so-called anonymous activity online is defrocked, users who purport to act anonymously are unmasked and tortious activity is prosecuted. This prosecution usually takes place through civil lists although it can also be dealt with through criminal legislation. I also refer to a case which was recently before the Court of Justice of the European Union, the Eva Glawischnig-Piesczek case. I am sorry if I got the pronunciation of that lady's surname slightly wrong. It is a technical pronunciation. This decision deals with what the State can and cannot do within the hosting provisions and the related package where injunctive relief through the courts is concerned. It also considers matters this committee might consider, concerning duties of care and how far legislation can go. I am happy to take any questions on that topic.

I would also like to address a point on which Deputy Jack Chambers engaged with some witnesses last week, that is, the issue of counter-speech. I have a particular concern about using that as a defence to defamation or misbehaviour online.

If someone is attacked, that person can and should vindicate his or her good name per the Constitution, defamation laws or the criminal vocabulary of the law. It is not adequate to tell people to pick up a loudhailer, have a go back, defame those responsible or do something as bad in return. That submission does not sync with the constitutional protections of the right to a good name and our legislative instruments.

That addresses the issue of hosts. The committee should refrain from considering that hosts should just be declared as publishers, because that would put us in a position incompatible with European law and frameworks. It would be a dangerous place to go.

My second point is consistent with Dr. Aiken's submission. Self-regulation has been operating in Ireland for approximately 20 years. Self-regulation requires robust laws to ensure that actors behave in a fashion where they are scared or incentivised into behaving properly or disincentivised from behaving in a bad way. However, we have eight Departments dealing with online issues. I set those eight out in my witness statement. A recent example, and one that has been newsworthy, was that of the report of the Data Protection Commission, DPC, into the public services card. If the State tells the DPC to take enforcement action against it, how does that make Ireland look on the international stage in terms of compliance with laws? This is not a political point, but we need to be careful about what messages we send internationally.

That feeds directly into my next point, which is on legislative reform. I have identified six Acts that are old enough to require a re-examination by the committee in the form of a report or by other organisations of the State. The first is the Prohibition of Incitement to Hatred Act 1989, which is a difficult Act to decipher, let alone prosecute, for a member of An Garda Síochána. It deals with actions, broadcasts and materials likely to incite hatred. The levels of prosecution are minute. It is the only area of hate speech legislation that I can find, and it is well out of date and not fit for purpose in light of the Internet and what pervasive access to individuals has created online. The second is the Criminal Justice (Public Order) Act 1994 as it relates to activities. I suggest that activities organised online constitute an area that the committee should consider, particularly in terms of congregations of people and, possibly, riotous behaviour.

Section 10 of the Non-Fatal Offences against the Person Act 1997 has been well ventilated in terms of the recommendations of the Internet Content Governance Advisory Group, ICGAG, and the Law Reform Commission. Deputy Howlin's Bill is useful but will require significant redrafting and overhauls.

The next Act relates to something that is close to my heart, as I have been on a number of Government child protection advisory groups. The Child Trafficking and Pornography Act 1998 is stale and out of date and the wording it contains is wrong. There are issues in terms of good actors holding blocking lists and so forth. The Act needs a full overhaul.

The Criminal Justice (Theft and Fraud Offences) Act 2001 may be a good place in which to codify reforms as regards online criminal activity and malicious communications.

The Defamation Act 2009 is relatively new. Section 5 provides for a revision of the Act within five years, but that has not happened. In the courts, there seems to be a disjoint between what reliefs can be granted in terms of interlocutory injunctive reliefs or just injunctive reliefs and the vindication of rights when it comes to Internet publications, malicious harm, abuse and so forth. The Act needs to be examined.

I made points in my submission about a privacy Bill. Deputy O'Callaghan has raised the matter with other witnesses before the committee. It may be time to consider introducing privacy legislation, albeit not in a similar vein to what has been published previously in draft Bills. I am surprised that an upskirting offence is so far buried in the 2017 sexual offences legislation. Many new offences to do with the Internet and connected to offline activity need to be codified properly. A malicious communications set of provisions is also required, as has been ventilated well in the Houses since before 2007.

The committee should be careful not simply to report on declaring hosts as publishers. If the State is going to take matters seriously, there needs to be reform of where responsibility for Internet, speech and hate speech activity sits within the Government. When the Minister for Justice and Equality, Deputy Flanagan, attended the Joint Committee on Children and Youth Affairs on 21 February 2018, he made it clear that it was unlikely that criminal justice issues would go under any online tsar or role that would be created for protections. That is the correct position. Regarding self-regulation, however, we need robust revisions of the law to make actors behave correctly. I have highlighted six Acts at a quick pace and will happily answer questions on them, but as far as online harm, abusive content and hate speech go, the Statute Book is out of date.