Dr. T.J. McIntyre:

While the Senator made some good points, the fundamental problem is that either we want a regime whereby some entities can make decisions about what kind of content they want on their platforms or we do not. It is desirable that we allow a degree of freedom, certainly to smaller entities. There are questions relating to competition when we come to larger entities. These can be put aside for the moment. Nevertheless, it is important that services such as boards.ie, for example, have discretion as to what they consider appropriate for their community and that while it may be legal to say something, such services are able to say it may not be tasteful or appropriate for their audiences. Similarly, it is important that there are other forums which might, for example, set out to make themselves child friendly and exclude material that would be suitable for adults but not for children.

Conversely, if we get to a point where the State can prescribe, in some detail, what kind of content a service must not carry, short of it being illegal, and can also prescribe what content it must carry, for example, in a European context, with proposals to require political leaders' speech to be carried, notwithstanding that it might be offensive, we will rapidly end up with the State supplanting the editorial judgment of the service. That might be considered desirable but it would place a greater burden on the State, in order to comply with the requirements of Article 10 of the European Convention on Human Rights and the standards under Bunreacht na hÉireann, to prescribe clearly what can and cannot be done and to provide a State redress scheme in respect of that and so on.

The risk for Senator Malcolm Byrne is that if he gets what he wants, it will restrict the freedom to regulate because we will end up with the State taking on more responsibilities while having a weaker ability to control than private entities would. We cannot have a State rule that would provide that, for example, material harmful to children or material lacking in taste and so on should be precluded. Private entities are free to do that if they wish. There is a catch-22 here. The greater the degree of State involvement in these policies, the more difficult it becomes to regulate, precisely because a greater degree of precision and State supervision of regulation will be needed. If the Senator would like to encourage tech firms to regulate, there are ways of doing that, such as requiring them to adopt policies or to be transparent about the application of their policies and so on, without necessarily being prescriptive as to what they can and cannot carry within the law.