The following is the text of a submission which we have sent on behalf of our clients Digital Rights Ireland to the Oireachtas Joint Committee on Communications and Transport. It was written by Fergal Crehan BL on behalf of Digital Rights Ireland and is a genuine attempt to engage with the current law surrounding balancing rights to free expression with other personal rights.

In addition, the submission draws on recent media reports describing Minister for Communications Pat Rabbitte’s intended future legislation in this area and assesses some of the potential consequences of those reported changes.

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Submissions of Digital Rights Ireland to the Oireachteas Joint Committee on Transport and Communications hearings on social media and cyberbullying

Digital Rights Ireland (DRI) is a civil liberties group, concerned with defending civil and human rights particularly those arising in the context of modern communication technologies. DRI is a member of the European Digital Rights Initiative, an international non-profit association of non-profit, non-governmental organisations whose goals include the defence and promotion of civil rights in the field of information. At the domestic level, we have worked with other civil rights groups such as the Irish Council for Civil Liberties. Our membership includes persons working in academia, the law and business, and having practical and academic expertise in questions of information technology and the social, political and legal issues arising therefrom. We carry our research and contribute to litigation and public debate regarding such matters as data retention requirements, data protection, telecommunications interception, copyright and fair use restrictions, and filtering and blocking of internet content. We make these submissions for the assistance of the Committee.

Rights to Free Expression, and Their Limits

1. The right to speech is not absolute. In our law, it is subject to various restrictions. There is a permanent tension between the right and the restrictions, with the balance struck differently depending on the circumstances. This tension is displayed even within a single article of Bunreacht na hÉireann.

Article 6. 1° states

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
i. The right of the citizens to express freely their convictions and opinions.
ii. The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
iii. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”

2. Elsewhere, Article 40.3.1 provides that “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen” Though privacy is not explicitly enumerated as a personal right, courts have long held that it exists as an unenumerated right[1] .

3. The rights to and restrictions on freedom of speech and on privacy are elaborated upon by The European Convention of Human Rights and The Charter of Fundamental Rights of the European Union, which are legally binding on Ireland under EU Law[2].

Article 10 of the ECHR provides that

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

4. Article 11 also provides for the right to freedom of association, which is a major theme of any consideration of social media technologies:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

5. These protections are restricted however, not only by their own inbuilt provisions, but by Article 8:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

6. Meanwhile, the Charter also provides a number of fundamental rights providing for free expression

“Article 10
Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

Article 11
Freedom of expression and information

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

Article 12
Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.

2. Political parties at Union level contribute to expressing the political will of the citizens of the Union.

Article 13
Freedom of the arts and sciences

The arts and scientific research shall be free of constraint. Academic freedom shall be respected.”

7. Also provided for are the following privacy related rights:

“Article 7
Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications.

Article 8
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority”

8. Most of these provisions have existed since long before the invention of social media technology. The rights and freedoms enshrined in them reflect the mainstream view in liberal democracies that freedom of expression, though subject to certain limits, is an essential element on any free society, and must be protected.

9. Ireland is not a place where one needs permission to speak. All our statements, whether private or public, are presumed to be lawful unless the law provides otherwise. While there may be consequences for certain speech, no advance “vetting” is required to make a contribution to a debate. That said, media organisations, by their editorial function, operated as a filter on which voices were heard in the public debate and which were not. In the less formal fora of discussion, the pubs and, latterly, the office water-coolers, no such prior filtering existed. Then, as now, opinions were expressed which were far more trenchant and scathing of public figures than anything which might appear in print or broadcast.

10. Legal intervention into speech largely took the form of censorship, defamation suits against news media, and rarely utilised laws dealing with nuisance communications such as “poison pen letters” and obscene phone calls. Cases in defamation against private citizens were comparatively rare, probably because private citizens were by themselves unable to widely publish defamatory material. Most malicious gossip either never travelled far enough to do serious damage to a reputation, or never came to the attention of the defamed person. Profitable media companies were seen as a more likely ‘mark’, able to pay for damages. Finally, public figures who were damaged by defamation may have felt that where the defamation was less public, legal action would have been a disproportionate and undignified response to the inevitable, minor enmities that arise in public life.

11. In a more secular and open Ireland, censorship is largely a thing of the past, though the distribution of films is still regulated. In any event, the broadcast model, where one centrally-broadcast message is received by an audience of many, is not the focus of this submission. Social media has a very different, ‘many-to-many’ model, with each member of the audience being a potential outlet themselves.

12. The Internet is not, as some apparently believe an unregulated ‘Wild West’. In fact, social media is already as much regulated as any other speech and in some cases, moreso. Below, we outline the existing legal provisions which apply to the use of social media.

Existing Regulation of Social Media

Defamation

13. According to the Defamation Act, 2009, and to settled case law, a defamatory statement means “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”. However, courts have long taken the view that crude and vulgar abuse is not capable of being defamatory[3]. This type of abuse is all too often seen on-line. Such abuse may, however, constitute a criminal offence (see below, section 32).

14. In principle, defamation online is no different from in any other medium. However, a recent line of English cases has placed some restrictions upon the application of the UK Defamation Act to online publication, and it is not unlikely that Irish courts will follow similar lines to those described below.

Extent of Publication

15. In order to prove defamation occurred, it has always been necessary to show that publication actually occurred. A copy of a newspaper or a recording of a broadcast will tend to be good evidence of publication, and a court will infer the extent of publication from the scope or distribution of the publisher or broadcaster. However, this is not necessarily enough in the case of online publishing, since it does not follow that because something was placed on the internet, it was necessarily read by a large number of people or indeed anyone at all. Accordingly, a court will not simply assume that publication occurred, and will require evidence that the offending material was seen or heard.

16. In Tamiz v Google[4], the English Court of Appeal held that

“it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows, as the judge clearly had in mind, that any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the judge was right to consider that “the game would not be worth the candle”

17. Though the reasoning in this case and its antecedents has not been explicitly approved in an Irish judgement, it has persuasive authority. In any case, where the defendant in such a case is a private individual, perhaps not even an adult, simple cost considerations will discourage many plaintiffs. Further, public figures may wish to reflect on which is a greater affront to their dignity, the words of an ill-informed teenager, or the publicity garnered by pursuing that teenager through the courts.

Retweeting and Republication

18. Experienced users of Twitter have found that often the best way to combat defamatory or abusing communications is to draw them to the attention of the wider community by using Twitter’s “re-tweet” function. This can either be done without comment, allowing the words to speak for themselves, or with a comment drawing attention to the foolish or hateful nature of the words. Users should remember however that re-tweeting may constitute republication, making them liable as publishers irrespective of their motivations. Plaintiffs should be aware that their chances in a libel action will be damaged if they republish the offending tweet.

The Publisher

19. The Defamation Act provides for liability for defamatory statements on the part of author, editors and publishers. Prior to the emergence of social media, these categories were easily defined. Online, though an author is easily defined, there has been some dispute as to what constitutes an editor or publisher. The question is further affected by the EU “E-Commerce Directive”[5], as transposed into Irish law[6]. That directive allows certain persons to plead that they are a “mere conduit” for certain information, and thereby not liable, should the information give rise to civil or criminal liability, just as telephone companies are not liable for the content of phone calls.

20. Certain other providers of services are in a less secure position. Facebook, Twitter, and domestic sites like Boards.ie have long sought to avail of the mere conduit defence, on the basis that they are merely providing a platform for user-generated speech. However, by taking a role in moderating and monitoring content, they may be taking on the role of editors or publishers. The usual practice has been to operate a “notice and take down” policy, removing offending content upon receipt of a complaint. The above-cited Tamiz case offers some backing for the policy, the Court of Appeal having held that Blogger, a blogging platform owned by Google, could be held liable for content on their platform where Google failed to act promptly on the receipt of a complaint. Though Google ultimately avoided liability on the grounds cited above, the Court held that Google could be held liable as publishers if they failed to take prompt action once the existence of the offending publication became known to them. Action taken five weeks after receipt of a complaint was held not to be prompt.

21. The trend seems to be for Notice and Take Down to become standard practice. Indeed, it might be argued that the balance is problematic from a Freedom of Speech point of view. It places companies like Google (or far smaller companies like Boards.ie) in the position of having to decide on the validity of complaints. A defamation trial can last days. In order to avoid liability, administrators for sites like Boards.ie, without any legal expertise, are required to make a snap judgement on whether a statement is defamatory. Inevitably, they err on the side of caution, and perfectly legal statements will be deleted under the mere threat of legal action. This is an example of what the European Court of Human Rights has called a “chilling effect”. Further, it is an open invitation for those who are the subject of criticism to silence critical comment without ever having to prove their case.

22. As a result of this natural balance in favour of the subject of criticism, the current provisions regulating moderation of social media platforms already offer more than adequate protection to those who consider that they have been wronged.

Anonymity

23. As a preliminary point, we wish say that, absent actual wrongdoing, anonymity is not inherently reprehensible, and in many cases serves a socially useful purpose. Throughout history, authors have found it necessary to adopt alternative names for their public statements. In 2010, anonymous blogging alerted us to problems within the Irish Red Cross which might never have come to light had the blogger not been able write under a pseudonym. Indeed, where the current government is committed to the introduction of “whistleblower” protection legislation, any attack on the right to anonymity would seem to be a retrograde step.

24. It is widely believed that persons on the Internet are anonymous and untraceable. This is not so. In many cases, real names, or easily understood variations thereof, are used as “handles”. In others, the Internet itself provides the tools to identify an individual by context. For example, persons writing under a pseudonym will often link to photos and other details about work and family, making their identity easily discoverable. Where actual anonymity exists, legal remedies are available. An order may be sought from the Courts to unmask anonymous or pseudonymous persons on the Internet. This is called a Norwich Pharmacal order[7], a remedy developed by the English Courts in the 1970’s to require an innocent third party to disclose information about a wrongdoer. These orders are typically made against hosts of internet platforms, requiring them to disclose IP number from which the abusive comments were made, and then against Internet Service Providers (ISPs), requiring them to identify the subscriber linked to that IP number.

25. In 2005, the High Court of Ireland held that “The right to privacy or confidentiality of identity must give way where there is prima facie evidence of wrongdoing. There is such evidence here”[8]. In 2012, the High Court of Ireland made a Norwich Pharmacal type order against a number of proprietors of message boards, at the application of an exploration company which alleged defamation by certain pseudonymous persons. The Court did so having found that there was prima facie evidence of wrongdoing, in this case, defamation[9].

26. In an English case[10] concerning alleged libel on an Internet bulletin board, the Court of Appeal ruled that it would be disproportionate to grant an order disclosing the identity of the author because the applicant had not established an arguable case of libel. The Court provided guidance on the quality and quantity of the evidence needed to support a Norwich Pharmacal order and ruled that applicants for such orders need to provide the court with a coherent body of evidence which allows for an allegation of wrongdoing to be properly assessed. Later that year, the English High Court refused to grant an order relating to the identity of persons who “may have” engaged in illegal activity, and ruled that “Norwich Pharmacal does not give claimants a general licence to fish for information that will do not more than potentially assist them to identify a claim or a defendant”[11].

27. We think that the approach taken in the Norwich Pharmacal cases and similar cases in Irish and English courts strikes the appropriate balance between the competing interests. We believe that this approach should continue, although clarification of certain aspects would be beneficial.

Bullying

28. The recent tragic case of Erin Gallagher sparked a debate on online harassment or “cyberbullying”, and what can be done to stop it. Calls were made for new legislation to combat the phenomenon, leading, in part, to this public consultation. We respectfully submit that an error is being made here, which is the assumption that legislation can “combat” anything. Laws can only make things illegal, they cannot stop them from happening. That job is much harder, and cannot be resolved by legal means alone.

The Current Legal Situation

29. Cyberbullying is already illegal. Further, online bullying was only a part of a range of bullying behaviours directed at Erin Gallagher including, according to press reports, physical assaults on her way home from school. All of this behaviour was illegal but apparently continued notwithstanding this. Some of the main laws in relation to cyberbullying are described below.

The Non Fatal Offences Against the Person Act, 1997

Harassment

30. Section 10 of the Non Fatal Offences Against the Person Act, 1997, provides for the offense of Harassment. Any person who, “without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence”. Elsewhere, the section provides for punishment of up to seven years imprisonment, and allows for a court to order, either in addition to, or as an alternative to a conviction, that a person shall not, for such period as the court may specify, communicate by any means, or come within a specified distance of a person’s home or workplace. The section, though drafted long before the internet became a part of most people’s daily lives, is perfectly suited to the kind of circumstances which prevail in cyberbullying cases. Indeed, it has been used previously in cases where the harassment was entirely via email, and featured no physical element[12].

31. There have been suggestions that Section 10 is inadequate to addressing the problem. We submit that it is merely the enforcement of the section which has been inadequate. It was reported after the death of Erin Gallagher that her mother was told by Gardaí that there was nothing they could do in respect of the bullying. This was simply not so, and we question whether the same answer would have been given if an adult was exposed to the same ongoing harassment.

32. The Anti-Bullying Working Group, in its recent report to the Minister for Education and Skills, made the following recommendation:

“at this time, the focus should be on securing implementation of existing legislative requirements across the system rather than seeking to introduce new legislation.” [13]

33. We endorse this approach. Amongst the lessons that children learn at school is how to behave towards others. With children and adults increasingly living large parts of their lives online, it follows that these lessons must include online behaviour, and we welcome the Working Group’s proposals in this regard. We submit that adults are as much as in need of this kind of education as are children. Accordingly, we submit that a public information campaign, providing guidance and information regarding social media, would be of great benefit from an educational, public health and civic point of view.

Threats

34. Section 5 of the Non Fatal Offenses Against the Person Act also provides for an offence of “Threats to kill or cause serious harm”. Again there is nothing in the section to preclude its use in relation to online communications. However, we would caution against over-zealous application of the section, bearing in mind the many colloquial uses of language which, on an objective reading, might appear threatening. The offense requires that the threat is made “intending the other to believe it will be carried out”. In this respect, section 5 is superior to the English offence of “Improper use of public electronic communications network”, which includes no provision as to the seriousness or believability of a threat. This absence lead to R v Chambers[14], the notorious “Twitter Joke Trial” where a light-hearted tweet caused Mr. Paul Chambers to be convicted under S107(1) of the Communications Act, 2003, requiring him to take his case to the Court of Appeal before he, and common sense, finally prevailed. The Chambers case should stand as a warning that absent the element of intention, prosecutions should not be brought.

Post Office Amendment Act 1951

35. S.13 (as amended) provides that

“Any person who—

(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing, or

(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person―

(i) sends by telephone any message that the sender knows to be false, or

(ii) persistently makes telephone calls to another person without reasonable cause,

commits an offence.”

36. The offence is not strictly necessary to social media, as it is limited to telephone use. However, in a context of bullying, where abusive text messages are often an issue, it is a legislative tool that should be had regard to in any approach to the problem.

Proposed Amendment of the 1951 Act

37. We note with some concern the recent media reports of plans to broaden the scope of this offence to include all forms of electronic communications[15]. S.13 has existed in its current form since 2007, and it excluded internet communications for very specific reasons. Telephone messages are direct person-to-person communications. A menacing phone call therefore is a very intimate form of harassment. A tweet, Facebook posting or blog post, being viewable by a far larger number of persons, lacks this personal intimacy (emails and twitter “replies” and “direct messages” are already covered by the offence of harassment). Broadening the scope of this offence in the manner described in media reports would create potential criminal liability for any person placing any material on the internet. If would, for example, make it a criminal offence to make any statement online, knowing it to be false. Further, it would make everything on the internet, including the entire output of RTÉ, subject to an offensiveness test. It would also criminalise any form of political art, which often is made with the explicit intention of causing offence, or at least annoyance. These examples are only three amongst a potentially infinite number of absurdities that would be caused by such an amendment of the act.

Invasion of Privacy

The Data Protection Acts, 1988 & 2003

38. As a general rule, the placing of personal information about a person online without their consent will be a breach of the Data Protection Act (DPA). This includes the posting, without consent, of photographs or of video recordings.

39. The recent unfortunate case where video was posted online of a young girl being indiscreet in a Temple Bar fast food outlet, was clearly covered by the DPA. Unfortunately, the video went “viral”, attracting much crude and misogynistic comment[16]. Even those who referred to the video only in order to denounce the breach of privacy played a part in bringing it to a larger audience, and thus inadvertently exacerbated the breach of privacy. Had the girl in question, or her parents been better advised, they might have been able to discreetly have the video removed from Youtube by relying on her rights under the Data Protection Act. Unfortunately, Data Protection, a massively important protection for the modern citizen’s privacy, is not widely understood. This must be to a large degree attributed to a lack of funding for the Data Protection Commission, who, were they fully funded, would be better able to help ensure that privacy rights could be properly and promptly vindicated by the average citizen as well as by the celebrity.

Hate Speech

40. Section 4 of the Prohibition of Incitement to Hatred Act, 1989 provides, inter alia, for an offence of “Preparation and possession of material likely to stir up hatred”. This offence is strictly limited to hatred on grounds of race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation. The section was relied upon in a prosecution in Killarney District Court, when a 27 year old Kerry man published materials on a Facebook page that were both threatening and abusive to the Traveller community. The case was dismissed; on the stated grounds that there was a reasonable doubt that there was an intent to incite hatred[17]. This finding was somewhat bewildering, as the section provides that an offence is committed where the stirring up of hatred is intended, or is likely. The 1989 act is a technology neutral one, as appropriate to online expressions of hatred as it is to those occurring offline. Any weakness in the decision in the Kerry Facebook case does not, in our view stem from the inadequacy of the legislation. That decision, whatever the reasons for it, is an unfortunate one, in that it is likely to have a chilling effect on any further prosecutions. Though free speech purists may object to any form of hate speech legislation, this act exists in consequence of Ireland’s international obligations, and provides a concrete remedy for many of the issues being examined by the committee.

Blasphemy

41. Despite the constitutional reference to blasphemy, there was for many years no clearly defined offence of blasphemy, and no conviction for it has ever occurred. However, in 2009, the Defamation Act included an offence of blasphemy, a move which caused considerable negative comment both in Ireland and worldwide. The Act provides that “it shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value” in the allegedly blasphemous material. We believe that even the most gratuitous of blasphemy could be defended as making a general point about organised religion, and that convictions are unlikely. However, we believe that the possibility of selective prosecutions is a concern, and that the principle of freedom of expression is not served where citizens, without ever being convicted of an offence, are at risk of Garda attention and stressful and expensive criminal proceedings.

Conclusions

42. We are in the fourth decade of the Internet’s existence. However, in some respects, in Ireland at least, the Internet only broke through to the cultural mainstream since the advent of the smartphone. What might be termed “the Irish Internet community” is to a large extent made of “digital natives”, people who have learned appropriate online behaviour over many years’ immersion in the norms of the community. At the same time, the law has kept reasonably abreast. We submit that in the areas of bullying and hate speech, two offences exist which are tailor-made, without any amendment, for use in respect of online communication. However, many hundreds of thousands of newer users of the Internet, less attuned to these norms, have flooded online in recent years, leading to a wrong belief, that “anything goes” online.

43. We submit that this perception has twin dangers. It lulls Internet users into behaving in ways they would not dream of behaving in daily life. It also gives legislators and even enforcers the mistaken impression that no laws exist to deal with such behaviour. Digital Rights Ireland hopes it has assisted the committee by outlining, in these submissions, that online speech is already more than adequately regulated.

44. However, legislation without enforcement can have little effect. While regard must be had to the right to free speech – including the right to be offensive or even obnoxious – consideration should be given to more frequent prosecution of these offenses.

45. The Data Protection Acts are the single most important legislative protection for the privacy of the average citizen. It is therefore a continuing cause for concern that the Office of the Data Protection Commissioner continues to be so poorly resourced, even as Ireland becomes host to some of the largest holders of data in the world.

Proposals

o No new legislation should be introduced, but clarification should be provided on the following points:

• That offences under the Non-Fatal Offences Act and the Prevention of Incitement to Hatred Act apply to online communications.
• That intent to stir up hatred is not an essential ingredient of the offence of “Preparation and possession of material likely to stir up hatred”.
• That Norwich Pharmacal orders are available as a means of unmasking anonymous parties, but should only be made where a substantial case is disclosed.

o Section 13 of Post Office Amendment Act 1951 should not be further amended.

o The Office of the Data Protection Commissioner should be properly funded, particularly in respect of its enforcement powers.

o Prosecutions of the offences of Harassment and Preparation and Possession of Material Likely to Stir Up Hatred should be considered, where appropriate.

o An education programme should be instituted in relation to online behaviour, applying to both adults and to children.

Footnotes