Kathryn Reilly (Sinn Fein) | Oireachtas source

I thank the Minister of State, Deputy Kevin Humphreys, for taking this matter on Internet blocking systems. Very often controlled filtering, or Internet blocking, lies outside the control of the public policy process. We have seen that Internet filtering policies have become more common where states cannot exercise their authority to reach criminals for prosecution or where Internet service providers outside their jurisdiction reject or ignore requests for take down. Given that, the function of Internet filtering is often carried out by third party actors who are external to public authorities. Issues of transparency, accountability and legitimacy are very much called into question and that, in itself, brings into the fold issues of freedom of expression, which is an area of contention. This is particularly relevant where filtering policies are not prescribed in law, when they do not adhere to due process principles and when administrative bodies have responsibility for the content and the sites being blocked.

When one looks at the issue of Internet filtering, it becomes clear that rarely are explicit laws designed to establish a technical filtering regime but rather there is a framework for restricting certain kinds of content online and banning certain online activities. Very often legal regulation which empowers filtering and surveillance is very vague and is not explicitly stated, if it is, in itself, stated. There are three main critiques of Internet filtering and blocking. First, it is the technical capacity of filtering and that it does not prevent under-blocking or over-blocking, which then has consequences for civil liberties. Second, there are the human rights concerns, such as freedom of expression, and that they are implicated by Internet filtering. Finally, filtering would not be conducive to positive developments ICT can facilitate, such as innovation.

In 2008, the Committee of Ministers called on member states to ensure that where filtering or blocking is used, it is only done if the conditions of Article 10.2 of the European Convention on Human Rights are met and that it should only occur if it concerns specific and clearly identifiable content and that a competent national authority has taken a decision on illegality and the decision can be reviewed by an independent and impartial tribunal or regulatory body. Academics and commentators have noted that while the regulation of specific illegal content, such as child abuse content - we saw this recently with the decision of UPC - is commonplace in many countries, the areas of contention and controversy are not the regulation of such material, which I must state explicitly, but the ease with which other types of content could be blocked as a result. Non-transparent regulation systems are very difficult to reconcile with freedom of expression, so that is why the need for categories of prohibited content to be clearly and precisely defined is critical for the prevention of excessive application of filtering and to ensure there proportionality.

I would like to raise the issue of mission creep and curbing administrative discretion to extend filtering into other areas. If there is not a precise and detailed specification of the criteria for censorship, the censor, which, as I said, is very often a third party administrative body, essentially can have the power to exercise expansive discretion to restrict speech. It is important that there are three procedural safeguards which countries implementing filtering systems should provide, including the ability of Internet users to challenge the decision to filter before an independent judicial body, notice to affected users that Internet content was filtered and a definition of the categories of speech subject to filtering.

I raise this issue in light of the UPC decision and to ensure that now it is being implemented by UPC, it will not be contested on the basis of any of these issues. It should be underpinned by law and there should be a role for the State. It should be transparent and proportionate, and capable of being challenged before an independent judicial body and not just at the discretion of a third party.