Mr. Liam Herrick:

The Irish Council for Civil Liberties, of which I am executive director, is very grateful to the committee for this opportunity to appear. The committee has received our opening statement. The ICCL is an independent NGO which works to promote and protect human rights in Ireland. We do not represent particular groups but, rather, work to ensure the Government fulfils its human rights obligations in all relevant law and policy.

In our submission to the committee, we analysed the general scheme of the online safety and media regulation Bill in light of Ireland’s human rights obligations. We specifically considered the Bill in respect of the right to freedom of expression, the right to send and receive information and the right to privacy and private communications. Having analysed the scheme of the Bill, the ICCL is concerned that aspects of what is proposed are overly vague and poorly defined to the point that it is wholly unclear who can expect to be regulated by the proposed media commission and when and how.

We have the following main concerns. There is a troubling vagueness in the context of the definition of what might constitute harmful online content under head 49A of the Bill. The ICCL is concerned about what this vagueness may mean for legal accessibility, foreseeability and the safeguarding of the right to freedom of expression and communication, as well as the potential chilling effect that may result from this vagueness in the context of self-censorship and in the internal workings of platforms and technology companies. The ICCL accepts the legitimate and important intention on the part of the Department in bringing this forward to reduce the hurt that children and adults may feel because of material online. However, there is a danger that in passing this legislation in the manner proposed, the issuing of notices for the removal of content which, for example, could be deemed likely to cause someone else to feel humiliated is a threshold so low that it could seriously damage individuals’ constitutional rights to freedom of expression.

Similarly, there is troubling vagueness in terms of what online services may be deemed a designated online service by the commission. We particularly endorse the submission by our colleagues in Digital Rights Ireland to that effect. There is an assumption that by defining content, the intention of the Bill is to engage with commercial operations of large technology companies. However, this vague definition has the potential to capture a much wider range of online services, the operators of which will be subjected to as yet unwritten regulator codes. What we do know is that these designated services will be chosen at will by the commission from a plethora of services that have one thing in common, namely, facilitating the dissemination of content. The scheme tells us that this will cover online services that might include social media services, public boards and forums, online gaming services, e-commerce services, private communications services, online cloud storage services, press publications and so on. It is a vast and potentially unlimited list.

The Bill fails to provide for the actual role of the online safety commissioner and, as a consequence, it fails to specify the specific functions of the commissioner in the wider media commission. We understand this is essentially a technical drafting issue.

There is a common purpose between the intention of the drafting and what all present wish to see, that is, a well-defined body, but it needs further work, perhaps on Committee Stage. We endorse the submissions of bodies such as the Law Society and the Irish Human Rights and Equality Commission with regard to ensuring gender diversity and wider diversity principles in the membership of the commission.

As it stands, we believe this Bill will provide for the regulation of conversations that are had online. It will see words written by members of the public subjected to codes via service operators, even though members of the public do not make up a licensed body. The enforcement of State codes of conduct against members of the public for non-illegal behaviour creates serious problems with respect to fundamental rights. It is unclear to the ICCL how the commission intends to regulate private conversations which might contain criminal content in a manner which balances the rights to freedom of expression and privacy in communications and respects principles of legality, necessity and proportionality.

The ICCL is supportive of the mechanisms that will provide supplementary routes of redress to victims of crime perpetrated online. However, we are concerned about the approach being taken and the potential human rights impact of a system designed to restrict speech that is, in and of itself, non-illegal. Our colleagues in Digital Rights Ireland have raised some interesting points about how one might seek to define what is illegal content in this manner. We are happy to answer any questions the committee has.