Lynn Ruane (Independent) | Oireachtas source

I move amendment No. 145:

In page 76, to delete lines 19 and 20.

I welcome the Minister back to the Chamber. I will speak to amendments Nos. 145 and 146. They both seek to address the inclusion of online content by which a person bullies or humiliates another person in the list of non-offence specific categories in the Bill. Both amendments aim to achieve a similar end, but go about doing so in different ways. Amendment No. 145 seeks to delete the inclusion of "online content by which a person bullies or humiliates another person" in the list of non-offence specific harmful online content. This particular amendment is a straight deletion of the definition of "harmful online content" as it stands, which is defined as "online content by which a person bullies or humiliates another person". In my view, the definition currently provided in the Bill is vague and ill-defined, to such an extent that it is unsuitable for inclusion in legislation.

It is not clear from the existing definition what sort of content would constitute bullying or humiliating content. As a result, this provision creates a huge potential for overreach by social media platforms. For example, will they be so concerned about being stung by this regulation that they will overcompensate by removing all potentially humiliating content from their online platforms, or will they begin to remove posts where citizens ridicule the decisions of policymakers and legislators for fear that the language being used is too humiliating? The vagueness and subjectivity of this term makes it completely inappropriate for a legislative provision. By making this provision, we risk granting social media platforms an inappropriate level of discretion over what sort of speech they allow on their platforms and what sort of speech they suppress. It would be reckless of us as policymakers to include such provisions in important legislation, which will grant powers to social media providers to limit the free speech of users.

Additionally, no clear division is created here between the content which is acceptable criticism and that which is unacceptable humiliation. One fundamental principle of which we should be mindful when creating laws is that the people the laws apply to should be able to understand and correctly interpret them. I do not think this is possible if we maintain the inclusion of a vague definition. This is a serious civil liberties concern. It is unclear what threshold is being created in the Bill given that the wording is so ambiguous. Is the threshold on bullying or humiliating behaviour? Does criticism of a person in authority count as humiliating behaviour? This wording sets worrying foundations whereby we could find public figures who exert enormous power over politics and the economy seeking to make themselves immune from ridicule or criticism. There needs to be a clear and more well defined threshold by which we can easily separate out criticism and even ridicule from behaviour which is actual bullying.

We are all interested in preventing bullying online. It is clear that is a common goal we all share, but we cannot do this with such a broad and crude provision in the Bill as it stands, which does not seek to give bullying behaviour a proper definition. I stress again that this wording is in conflict with the principles we should follow as legislators, that is, that people should be able to read the law and know how to follow it. The way this section is currently drafted, it is not clear that someone would be able to read this provision and know whether they are breaking the rules by ridiculing a powerful person online. In my view, it either needs to be removed from the Bill, as amendment No. 145 would achieve, or be further clarified, as amendment No. 146 seeks to achieve. Alternatively, it could be clarified by the Minister and the Department by means of the introduction of a ministerial amendment on Report Stage.

Amendment No. 146 is an alternative to amendment No. 145. It seeks to replace the language in section 139A(3)(a) with:

"online content by which a person sends repeated, abusive communications to another person, to an extent that a reasonable person would conclude constituted intimidating or bullying behaviour."

In this way, we can seek to create a clear threshold that would separate legitimate criticism and disagreement online from actual bullying behaviour. This amendment, rather than simply deleting the vague definition of bullying or humiliating content, seeks to replace the definition with a stronger one that is less open to interpretation. This amendment seeks to create a clearer and less ambiguous threshold, which would allow online providers to actually identify the kinds of bullying content which the original definition seeks to capture. This amendment defines bullying content as "repeated, abusive communications".

This makes sense as, for example, we would not want social media platforms to simply remove messages that legitimately criticise the decisions made by people in positions of authority. We must be conscious of the fact that the way in which people engage with the issues of the time has changed. A significant portion of our communication takes place online or on social media platforms and while certain language that can be directed at people in positions of authority might sometimes not seem like the kindest, sometimes it is an absolutely legitimate expression of political dissatisfaction. To ask online providers to suppress this kind of speech would be a gross overreach. I am sure that everyone here in the House has been subject to messages of criticism online, but just because the language invoked by an individual in this way might cause offence to us as individuals, that does not mean that we should legislate for people not to be able to express their frustration or dissatisfaction in this way. By inserting the new definition, the legislation would instead identify bullying behaviour as behaviour which consists of repeated, abusive communications, which a reasonable person would believe constitutes bullying.

It is my hope that this clearer definition would fulfil the intended aim of the original provision, which is to put a stop to bullying behaviour online without unintentionally creating a chilling effect, whereby social media providers overcompensate by removing all negative, critical posts from their platforms. Again, we all wish to restrict bullying behaviour online, but we cannot simply discard civil liberties concerns in order to do so. This amendment creates a much clearer threshold in this Bill whereby the average person would clearly understand that bullying behaviour is unacceptable, while legitimate criticism and dispute is fine.