To understand the social media situation in Ireland we need to go back to December 28 2012 when the Oireachtas Committee on Transport and Communications announced that it would examine the role of social media in public life.
Committee chairman and Fine Gael TD Tom Hayes was instructed to lead the investigation and to report back to Minister for Communications, Pat Rabitte in early 2013. It’s also important to note that the decision to investigate social media fell against a dark back cloth: the recent suicide of the minister of state for agriculture, Fine Gael TD Shane McEntree. His death has been attributed in part to a period of social media abuse which followed an earlier budget announcement.
While Keir Starmer QC took the starting position that the CPS would produce guidelines and thus soft law; the relevant Irish officials began from the premise that fresh legislation, thus hard law could be implemented to deal with social media misuse and abuse.
Both RTE and the Irish Times covered the story, and I wrote a piece saying that ‘The sword of legislation is ostensibly wrong.’
The Irish Twitter community responded with scepticism that legislation could be brought forward. Those involved in the industry urged officials not to overreach and to make use of the laws already in existence. Irish barrister and Irish Times columnist Noel Whelan (@noelwhelan) also urged application of existing laws, writing in the Irish canonical: ‘Irrational fears about new media have become surreal.’
On February 21 the Oireachtas committee announced that it would launch a public consultation and that it would hold a series of hearings. Then on March 6 the Minister for communication Pat Rabbitte gave an address to the earlier said Oireachteras Committee, a transcript of which you can see here.
"Some people have yet to fully appreciate that public messages on social media have the same legal character as if they were published in a newspaper – defamation and harassment laws apply online in just the same way as they do offline.
Some of these things have the character of growing pains, as soon as practice evolves and behavioural norms online become embedded, either through education or experience, some of this behaviour will mitigate. But there will always be some willing to use online media to bully, harass, or demean others. Government needs to be cognisant of the damage that these people can do, and be prepared to react in a proportionate manner.
Critically, social media or the internet didn’t lead to the invention of bullying or harassment; these behaviours existed long before that. However the nature of the internet, or at least of many of the sites involved, is such that some aggressors can either hide behind anonymity... For children these concerns are particularly critical; the web is their future, and social media are their media in a way that older generations will probably never be able to fully comprehend.
The relative novelty of this area and the pervasive and broad nature of its implications pose significant challenges for governments the world over in terms of coming to terms with it however. To date, these media generally have not been subject to a formal regulatory regime akin to that used to ‘regulate’ traditional radio and television broadcast media, either in Ireland or in other jurisdictions. There is a range of reasons for this, even before you consider the challenge of keeping up with the rapidly evolving technologies involved.
The first main reason why governance in this area is so complex lies with the fact the internet governance is, and indeed has to be, conducted on a multi-jurisdictional basis.
The second complicating factor around the governance of social media is the fact that they are, undeniably, media. This is not just due to the activity of ‘traditional’ media players in using social media, or even online media players; social media themselves are now important media players even when there are no journalists, or payment, in the picture – they are an integral part of a large and diverse media ecosystem. As such, Social Media is treated in much the same way as any media, with due consideration given to Article 10 of the European Convention on Human Rights in any measure that might impact on it.
The third main reason for this is the breadth of the implications; many different areas of Government are affected by this phenomenon and have an involvement, but no single Department or agency can steer or manage it. As Minister for Communications, Energy and Natural Resources, I have policy responsibility for providing a supportive legislative and regulatory environment to facilitate the development of high quality communications infrastructure and services. However, I do not have sole responsibility for addressing as to how that infrastructure is used.
Responsibility for measures to deal with harassment and abuse online sits with the Minister for Justice and Equality, in much the same way as his Department deals with the same issues in the offline world. To that end, his Department has established an executive agency, the Office for Internet Safety that deals explicitly with online safety.
There are solutions to these issues however. In the first instance, children, parents and teachers all require support in terms of understanding the nature of the threats that can sometimes appear online.
The Department of Education have already done some very positive work in this regard, including the publication of a new Action Plan and Bullying that includes some concrete measures on cyber bullying.
The Office of Internet Safety, who will present shortly, also has a number of measures in place to this end which I will leave to them to explain. Non-government players also have a role – I note particularly the work of the National Association of Principals and Deputy Principals in this area.
There is also a set of robust legal measures in place for defamation, introduced as recently as 2009, which covers online comment. Similarly, Section 10 of the Non-Fatal Offences against the Person Act 1997 deals with harassment. However, while this Act deals with direct communications with someone, it does not deal with communication ‘about’ someone and at present is apparently being interpreted in a very narrow sense by the courts.
We have existing mechanisms to deal with the abuse of the postal or telephone system; the Communications Regulation (Amendment) Act 2007 introduced measures dealing with the use of the telephone system to send messages that are grossly offensive, or “… indecent, obscene or menacing”, or “for the purpose of causing annoyance, inconvenience, or needless anxiety to another person”.
However, it appears that there may be a gap in the legislation here in that electronic communications infrastructure is not covered by these measures and as such there is no specific mechanism available to the Gardai or the Courts to deal with the type of difficulties we have seen. My Department is presently considering ways of addressing any such issue.
This is not an easy task; there is a delicate balance to be struck between ensuring that the constitutional rights of the individual to freedom of speech and freedom of access to information are maintained, while at the same time introducing measures that can deal with this abuse in a timely and effective manner. Determining an appropriate threshold for offences to ensure that a slew of vexatious or frivolous complaints do not arise is a challenge. We have to be aware of these difficulties, and also to ensure that the questions of intent, credible threat and the degree of menace all receive due weighting. Experience in other jurisdictions has been that this balance is not easy to strike, and we fully intend to give any measures our full consideration before implementing them.
I am convinced that it is possible to ensure that people can gain the full benefit offered by social media, in their public and private lives, while being protected against harassment or bullying of any kind, if we remain open to appropriate and sensitive intervention. These interventions must tread the infinitesimally fine line between protecting individuals and ensuring that free speech, and free and open debate, are preserved. This is difficult, make no mistake, but it is a balance that we must strike again and again, in the light of new technologies."
The Irish Times covered the story that Rabitte had said there could be a “gap in the legislation” here and on the same day as Rabitte’s address it was announced that Facebook and Twitter representatives would speak to the Committee. You can read the detailed briefing delivered by Twitter and Facebook on March 7 2013 here. You can also watch some of the Committee hearings on YouTube here.
On March 20 2013 the lecturer, solicitor and representative of Digital Rights Ireland, TJ McIntyre (@tjmcintyre) appeared before the Oireachtas Committee and provided valuable and comprehensive coverage on the state of Irish law which you can read here and here.
Coincidentally it was revealed on May 20 2013 that Fine Gael had drawn up a new Social Media Guide that would be distributed to all TDs, councillors and key party workers. Only for the eyes of people associated with the party, nothing official but interesting nonetheless.
Since then the trail of events has lost momentum and little appears to be happening. The only episode or event or note was the Irish High Court ruling that found that social media sites would be required to remove defamatory material until any trial.
The only other note to make is that Ireland’s history has been one that has been far more censorious and is renowned for the laws that effective closed Irish society off from the world during WWII. Ever since the legal history and culture has been more censorious and illiberal than other nations. I’m not saying that the Irish legal regime is explicitly more pro-censorship but rather there is a subtle but nonetheless marked difference.
This could be a telling signal that new legislation could be introduced; though we should be mindful of Communication Minister, Pat Rabbitte’s clear assertions that his government are aware of European legislation that guards freedom of expression.