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Bill to regulate online harmful content ‘damages' constitutional rights, Oireachtas committee told

The long-awaited proposals to regulate social media have been criticised as so “poorly defined” that it could restrict online speech that is not illegal
Cate McCurry, PA

A proposed Bill aimed at tackling the spread of harmful online content is so “vague and arbitrary” that it “seriously damages” users’ constitutional rights, an Oireachtas committee has been told

The long-awaited proposals to regulate social media have been criticised as so “poorly defined” that it could restrict online speech that is not illegal.

Representatives from the Irish Council for Civil Liberties (ICCL), Digital Rights Ireland and the Irish Human Rights and Equality Commission appeared before the Oireachtas media committee about the forthcoming Online Safety and Media Regulation Bill.

Civil liberties campaigners raised concerns about the online safety Bill, which they say will have unintended consequences for internet users.

Liam Herrick, executive director of ICCL, said he is concerned that aspects of the Bill are “overly vague and poorly defined”.

“It is wholly unclear who can expect to be regulated by the proposed Media Commission and when,” he told the committee.

“There is a troubling vagueness in respect of the definition of harmful online content.

“ICCL is concerned about what this vagueness will mean for legal accessibility, foreseeability, the safeguarding of the right to freedom of expression and communication, and the potential chilling effect resulting from this vagueness due to self-censorship and prior restraint.

“ICCL accepts that there is an intention to reduce the hurt that children and adults feel on account of material online.

“But passing legislation to allow for the issuing of notices for the removal of content which, for example, could be deemed likely to cause someone to feel humiliated, is a threshold so low that it could seriously damage individuals’ constitutional rights to freedom of expression and to communicate.”

Dr TJ McIntyre, chairman of Digital Rights Ireland, said parts of the Bill would be an unprecedented development in Irish law.

He warned that it would allow the Media Commission to “police” the speech of individuals on all social media and on private communication services.

“The General Scheme goes far beyond what is required by the Audiovisual Media Services Directive (AVMSD),” he added.

“Instead of applying to a relatively small subset of online businesses, including media service providers and video sharing platforms, it would introduce a much more expansive scheme which would cover essentially all internet users.

“Unfortunately, the Heads of Bill are somewhat misleading on this point.

“Instead of making it clear which aspects are domestic and which are required by EU law, in Part 4 of the Heads of Bill all the provisions are described as ‘related to the transposition of the AVMSD’.

“In effect, the provisions regarding the AVMSD and regarding domestic law have been folded together in a way which is difficult to untangle.”

Olga Cronin, human rights policy officer for the ICCL, said the Bill would substantially restrict the voices of internet users.

“Nobody likes to see anyone being unpleasant online, and we understand the Bill is to reduce the hurt but we are concerned that the well-intentioned effort to target the few,” she added.

“This Bill is extremely vague and is coupled with substantial powers given to the Media Commission that it could have the collateral effect of unintended consequences.

“The definition of online harm lacks precision, clarity and certainty and is too vague, arbitrary and unspecific about what material that is referring to.”

She added it would restrict speech that is not illegal.

Sinead Gibney, chief commissioner of the Irish Human Rights and Equality Commission, said the legal definitions needed to be explicitly articulated.

“For example the definition of harmful online content needs to be clear and sufficiently precise,” she added.

“Terms relating to hate speech, such as for example racism, sexism, and ableism should also be clearly defined under this proposed legislation.

“We would further question why the definition of online harm does not include material which violates other legal regimes, such as defamation law, data protection, privacy law, consumer protection law or copyright law.

“The fact that a statement is defamatory, in breach of data protection or copyright law or so on does not necessarily mean that it may not also be a form of harmful online content.

“This clarity is in the interest of clearly delineating freedom of speech as well as providing adequate protection for affected groups.”

She also called for greater transparency around the handling of individual complaints.

“There has to be an inclusive approach. I believe the tech companies have the expertise to address this issue,” she added.

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