Legal reforms and practical responses are necessary to protect freedom of speech

Sunday Independent front page 12 NovYesterday’s Sunday Independent (front page pictured left) was something of a bumper issue for freedom of speech. The Editorial argued that it’s time to level the media playing field, and called on the Joint Oireachtas Committee on Communications, Climate Action and Environment to take into account the challenges facing all of the media, not just radio and tv stations, in its deliberations on the future of the television licence fee. And there were three other interesting columns in the print edition that were published online last night. Fergal Quinn argued that, with a referendum looming, the media should champion free speech, and we must learn to tolerate open debate. Eilish O’Hanlon argued that no-one should need to beg the Government’s permission to express an unpopular opinion. And Ruth Dudley Edwards praised Conor Cruise O’Brien as a revisionist who cared about truth and as a patriot who kept free speech alive.

Last week, the Long Room Hub in Trinity College Dublin and the Heyman Center for the Humanities in Columbia University, New York co-hosted a series of events in Dublin and New York on the challenges fake news poses to modern society. In yesterday’s Sunday Independent, Breda Heffernan reported on one of the Dublin events that fake news is a dark menace to truth, democracy and discourse.

TLRHubHeadlines
Me, Andrea Martin, Todd Gitlin, Jane Ohlmeyer (Director, Long Room Hub), Fionnán Sheahan (click through for larger image)
The previous night, the Hub had hosted a (slightly controversial) Behind the Headlines event on freedom of speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate, featuring Fionnán Sheehan (Editor of the Irish Independent), Professor Todd Gitlin (of Columbia Journalism School), Andrea Martin (a media lawyer in practice in Dublin), and myself. Ryan Nugent reported in the Irish Independent the following day that traditional and social media are ‘not on a level defamation playing field’. Our four talks have been podcast on SoundCloud by the Hub; Todd’s talk is here; and, yesterday, the Sunday Independent published Andrea’s and mine. These two pieces appeared in the print edition yesterday morning, but not online until last night. Under the headline The critical balance: protecting our name vs free expression, Andrea argued that high costs and unpredictable juries can make defamation litigation a potential lottery. Here’s what I said:

Legal reforms and practical responses are needed to protect freedom of speech

From censorship to fake news, propaganda and the power of social media platforms, the truth is under siege.

Me in Sindo
My piece in yesterday’s Sunday Independent (click through for larger image)
Four challenges to freedom of speech require immediate attention. They are: state censorship; the power of social media platforms; state propaganda and misdirection; and fake news. Reform of the law to meet these challenges must assert traditional free speech values in the new contexts and must be supported by other practical responses.

The first modern challenge to freedom of speech is plain, old-fashioned censorship, where a state’s laws restrict disfavoured speech. States do this directly, where the law simply bans speech (for example, the crime of blasphemy appears in the Defamation Act 2009 because of the reference to blasphemy in the Constitution). States also do this indirectly, where the law allows private actions to restrict speech (for example, crippling damages in defamation cases encourage self-censorship by journalists and editors).

Recent online commentary around high profile criminal trials raises the question whether protections to ensure fair trials (for example, the rules around contempt of court) are capable of applying online. In theory, these laws apply equally offline and online. In practice, since they were designed for the former, they struggle to regulate the latter.

We have got the balance wrong here, tolerating too little speech offline, and enabling too much online. But, in response, we must not make the mistake of over-regulating online speech, simply because we’ve already made the mistake of over-regulating offline speech. Instead, reform of the law would reassert traditional speech values and support more speech – offline as well as online.

We must not over-regulate online speech just because we over-regulate offline speech

We will have a golden opportunity to do when there is a referendum on removing blasphemy from the Constitution. This will allow its repeal from the Defamation Act. Indeed, the Department of Justice is currently undertaking a review of that Act – and that review should repeal the legal rules that underpin the highest defamation damages in Europe. Other current reviews looking at online commentary about criminal trials must guard against the extension of plain old-fashioned censorship from the analogue world to the digital.

The second modern challenge to freedom of speech is posed by the size and power of social media platforms. The social media companies are so large enough that their decisions to restrict the speech of their users is functionally the same as when a state decides to censor speech. This is so where platforms suspend or delete accounts, or prevent searching for specific hashtags, or remove content, or implement policies that make anonymous speech difficult if not impossible.

Some regulators are alive to the problems of platform power. Privacy watchdogs in France and Spain have recently fined Facebook for data protection breaches. The EU Commission recently fined Google for manipulating search results. But these are piecemeal responses. Proper reform of the law here would ensure that the standards we apply against plain, old-fashioned state censorship would also apply against newer private censorship exercised by the social media platforms. Although this is problematic in the US, it is more than possible under the Irish and German constitutions.

The third modern challenge to freedom of speech arises where the state uses every means at its disposal – especially new media channels – to discredit and drown out disfavoured speech. Technological blocking, pervasive online propaganda, and weaponised social media misdirection have been pioneered by China and Russia to supplement plain old-fashioned censorship.

The Great Firewall of China is a potent combination of technology, legislation and policy that blocks or marginalises disfavoured websites, internet services, and mobile apps. Turkey’s internet censorship machine is increasingly effective. Meanwhile, Russia has incorporated many elements of the Great Firewall into its equivalent Red Web. Moreover, its web brigades of fake accounts push government propaganda on an industrial scale. In China, many social media posts are made by public employees at the government’s behest, timed to overwhelm dissent at key moments.

Like a conjuror waving one hand to distract attention from the trick being done by the other, the really nefarious Russian and Chinese censorship doesn’t ban disfavoured speech so much as effectively drown it out. These techniques are sophisticated and widespread – and are now favoured by Trump’s White House as much by the world’s dictators.

Reform of the law would assert traditional speech values in these new contexts. Propaganda and misdirection require the active connivance of the state and rely on the passive complicity of the citizen. To prevent this state action, we need robust interpretation of constitutional limitations upon it, especially of constitutional speech guarantees. Even if this is no longer possible in China, Russia, Turkey and their ilk, it is nevertheless still possible – and necessary – in Western constitutional democracies. Indeed, the Irish Supreme Court has shown the way, in its repeated holdings that the State cannot spend money on one side of a referendum.

Hand in hand with these legal developments, we must work to prevent the passive complicity of the citizen, by providing the social and educational tools to understand and deal with such propaganda and misdirection. Now that we have had a glimpse behind the curtain at insidious modern censorship, we must learn from the experience – or suffer the consequences.

The fourth modern challenge to freedom of speech is posed by the online armies of bots and trolls spreading hate speech and fake news. Legislators are increasingly saying that the platforms must do something about it. German law now requires them to do more to take down illegal content. They have recently agreed a code of conduct against hate speech with the EU. The United States is close to adopting legislation to make it easier to penalize websites that facilitate online sex trafficking. And, in the face of mounting concern about Russian influence in last year’s US presidential election, the platforms have promised more transparency about political advertising, even as Senators scrambled to introduce legislation requiring them to do so.

Nevertheless, the assertion of traditional speech values here suggest that we must not over-legislate against the platforms, making them liable simply out of frustration at not being able to reach the real bad guys. The primary legal responsibility for posting illegal content is with whoever posts it – and US and EU law currently says that the platforms are responsible for it only once they have notice of it. This balance is one of the legal foundations upon which the internet has been constructed – and if too much responsibility is moved from the poster to the platform, the disruption of this balance would be catastrophic for the internet.

Practical responses will also be crucial here. The Paradise Papers exposé of questionable offshore tax practices and RTÉ’s undercover investigation into substandard accommodation make the case for traditional journalism and public service broadcasting. The law should not make it more difficult for them to meet online challenges. But a blunt levy on online news (such as the EU is about to introduce) is not the answer: digital innovation around news will suffer as a consequence.

Freedom of speech faces many challenges in the modern world. The legal reforms and practical responses necessary to meet these challenges will not be easy. But they are essential to ensure that freedom of speech survives – both offline and online.

Consultation on the Status, Treatment and Use of the National Anthem

Public Consultation Committee Seanad EireannThe Seanad Public Consultation Committee was established “to facilitate direct engagement and consultation between members of the public and Seanad Éireann” (pdf).

It has just undertaken a Consultation on the Status, Treatment and Use of the National Anthem (pdf):

The purpose of this consultation is to invite submissions from interested parties or citizens to consider the most appropriate way the State should treat the National Anthem. This consultation process is being considered in the context of the music and English and Irish lyrics of the National Anthem no longer being in copyright. Legislative proposals have been made to address this issue. Seanad Éireann would like to consult with citizens on their views on this issue.

I have already commented at length on this blog about the issue, so I made a short submission to the Committee in which I referred to those posts, and answered some of the questions posed in the Consultation. In my view, the anthem should be treated with respect and dignity, and there is a good case to be made for legislation to protect it from inappropriate commercialisation. However, I do not think that copyright is a suitable means to this end. Instead, I think that it is a matter for a specialist piece of legislation, specifically directed to the issue. I have drafted a possible Bill (doc), and I attached it to my submission to the Committee, and my answers to the Committee’s questions reflect the drafting choices in the attached Bill.

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Digital resource lifespan, via xkcd; or why copyright law must permit digital deposit

xkcd 1909 Digital Resource Lifespan

The description for this picture provides:

I spent a long time thinking about how to design a system for long-term organization and storage of subject-specific informational resources without needing ongoing work from the experts who created them, only to realized I'd just reinvented libraries.

This picture is worth many thousand of my words:

The Irish Constitution at 80 – Property Rights, Proportionate Restrictions, and Media Pluralism

Constitution at 80 conference in ULA conference to mark 80 years of Bunreacht na hÉireann, the Irish Constitution, will be hosted by the School of Law, University of Limerick on 11 November 2017 in the Irish World Academy of Music and Dance. The conference will bring together judges, scholars, practitioners, and those with experience of constitutional governance to reflect upon and discuss the past, present and future of Ireland’s constitutional order at this important milestone. Keynote presentations will be delivered by Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, and Mr Justice Donal O’Donnell, Judge of the Irish Supreme Court. I will be delivering a paper in the following panel:

PROPERTY, SOCIAL ECONOMIC RIGHTS AND INJUSTICIABILITY

Dr Eoin O’Dell: Property Rights, Proportionate Restrictions, and Media Pluralism

Dr Claire M Smyth: Social and Economic Rights, Irish Constitution and International Obligations

James Rooney: The Injusticiable Constitution and the Common Good: The Preamble and Directive Principles in Contrast

This is the abstract of my paper:

A Report on the Concentration of Media Ownership in Ireland (2016) raised “grave concerns about the high concentration of media ownership in the Irish market”, and the Irish report for the EU’s Media Pluralism Monitor recommended that legislative limits on levels of media concentration should be applied retrospectively. As a consequence, a Private Members’ Bill, the Media Ownership Bill 2017, proposed to permit the Minister for Communications, Energy and Natural Resources to take “retroactive measures” to reduce “significant interests” held by “any one relevant media asset”. This plainly engages the Constitution’s protections of property in Article 40.3 and Article 43.1, which are among the most consistently litigated of its rights since 1937. This paper will consider the nature and extent of the Constitution’s protections of property, the strength of media pluralism and diversity as elements of social justice or the common good that can constitutionally limit property rights, and the extent to which the Bill nevertheless constitutes an unjust (usually, a disproportionate) attack on any engaged property rights.

Kudos to Laura Cahalane and David Kenny, and to their team in UL, Hope Davidson, Caitlin Moyne, and Stephen Strauss-Walsh, for putting together such a great event. The draft programme may be downloaded here (.docx); all are welcome to attend; there is a modest fee; and registration is required.

Making headlines defending speech

Headlines & Fake NewsIn Trinity College Dublin, where I work, the Long Room Hub is the College’s Arts & Humanities Research Institute. It hosts over 250 events each year, including a discussion series entitled Behind the Headlines, which offers background analyses to current issues by experts drawing on the long-term perspectives of Arts & Humanities research. In particular, the series “aims to provide a forum that deepens understanding, combats simplification and polarization and thus creates space for informed and respectful public discourse.”

In the recent past, the series has featured discussions on artificial intelligence, Trump’s America, Syria, and Brexit (not once but twice). The next event in this series will be on Monday 6 November 2017, 6:30pm to 8:00pm, on

Freedom of Speech: Where Journalism and the Law Collide at the Boundary of 21st Century Debate

In a world where truth is under siege, freedom of speech has never been more important. But, as outrage and offense in public debate become a commodity for social media technology giants, the future of professional journalism in educating public opinion while challenging authority and power is increasingly under attack. …

This discussion is part of the ‘Fears, Factions and Fake News’ symposium held in conjunction with Columbia University and in partnership with Independent News and Media.

I am one of the four speakers; the other three are Professor Todd Gitlin (Columbia Journalism School, Columbia University), Dearbhail McDonald (Independent News and Media Group Business Editor) and Andrea Martin (media lawyer and speaker, MediaLawyer Solicitors).

Last Sunday, under the headline Major free speech symposium by INM, TCD and Columbia, the Sunday Independent ran a piece by Wayne O’Connor about the ‘Behind the Headlines’ discussion and the other events in the symposium. This provoked a response by Peter Murtagh in this morning’s Irish Times:

US academic pledges to defend free speech ‘with anyone’s funding’

Conference, partly funded by INM, has been criticised because of links to Denis O’Brien

A leading US academic due to speak at a conference partly funded by Independent News and Media has said he “will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech”. Prof Todd Gitlin of Columbia University’s prestigious school of journalism will participate in a seminar on November 6th entitled Freedom of Speech – where journalism and law collide.

The conference has been criticised because of the links to Denis O’Brien, a leading INM shareholder and the owner of Communicorp, one of the biggest radio stations groups in Ireland. … Saying that he had not “previously heard” of Mr O’Brien, Prof Gitlin said: “Please be assured that in any setting, with anyone’s funding, I will defend the right to seek truth and to campaign against any and all assaults on the freedom of speech.”

So, an event about “behind the headlines” is making headlines itself. (more…)

The Irish Supreme Court begins to enter the television age

Still from Supreme Court Broadcast
Still from this morning’s broadcast
When the UK Supreme Court was established in 2009, with the capacity to broadcast its proceedings, I wondered when the Irish Supreme Court would follow suit, and televise its proceedings too. Today, I have the beginnings of an answer. This morning, the Supreme Court televised its proceedings for the first time, when it broadcast the delivery of two judgments. That broadcast should be available, for the next few days at least, via the RTE Player.

Chief Justice Clarke said that the move was aimed at “demystifying” the courts process, and allowing people to “see how their highest court operates”. He also described the move as a “baby step” which could lead to wider filming of the courts in the future. I hope that it will not be long before the Supreme Court routinely broadcasts its proceedings as its UK counterpart does, and there is certainly potential for the broadcast of proceedings of other courts too. The Irish Times said:

The live broadcasting of court proceedings has been discussed for years but the impetus for it has been attributed to a meeting five years ago between Ms Denham and then RTÉ deputy director general Kevin Bakhurst. Since his appointment as Chief Justice last July, Mr Justice Clarke has been keen to advance the project, and his involvement and support was a crucial factor.

This is an excellent start, but a lot more needs to be done. As Article 34.1 of the Constitution tells us, justice is administered in public. In this day and age, the broadcast of the Supreme Court’s proceedings should be the norm, and the sooner that is so, the better.

The copyright implications of a publicly curated online archive of Oireachtas debates

Former Legal Deposit Office, Paris; image via Wikipedia
Former Legal Deposit office,
Rue Vivienne, Paris
via Wikipedia (element)
From a twitter thread by Philip Boucher-Hayes last week, I learned that Ken Foxe had reported in the Irish Mail on Sunday that nearly ten years of video footage of Oireachtas debates and hearings had been taken offline. A spokesperson for the Houses of the Oireachtas said that the videos were removed because they had little traffic and were in an obsolete format. However, after an outcry online, the footage was restored, though with limited functionality. To overcome first the takedown, and then the limitations, various concerned netizens – including, I understand, Gerard Cunningham, Emerald De Leeuw, Elaine Edwards, and Sterling Plisken – have begun work on a publicly curated online archive of Oireachtas debates and hearings.

This is not the first time that civil society has had to step up when public functions have stepped back (see the story of the demise and return of KildareStreet.com, with various backups here and here). So, I think that a publicly curated online archive of Oireachtas debates is a fantastic idea, and I hope it prospers. It also provides a context in which I can discuss an important issue relating to Oireachtas copyright and digital deposit.

First, the Oireachtas holds copyright in the broadcast material. Chapter 19 of Part II of the Copyright and Related Rights Act, 2000 [CRRA] (that is, sections 191 to 195 CRRA (also here and here)) provides for Government and Oireachtas copyright. In particular, section 193(2)(b) CRRA (also here)
provides that the Oireachtas holds copyright in “any sound recording, film, live broadcast or live cable programme of the proceedings of either House of the Oireachtas”. So, the starting point of the copyright analysis has to be that the Oireachtas could therefore in principle rely on this copyright to restrict the reproduction of the Oireachtas broadcasts, or making them available online.

Second, there is, however, an exception which might permit at least some of the work of a publicly curated online archive of Oireachtas debates and hearings. Section 71(1) CRRA (also here) provides

The copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.

The question, therefore, is whether a publicly curated online archive of Oireachtas debates and hearings is reproduced and made available for the purposes of “reporting” Oireachtas proceedings within section 71 CRRA. There is a comprehensive discussion of the issue by Simon McGarr on his Tuppenceworth.ie blog. I think that the argument that the archive would be a report for the purposes of section 71 CRRA could go a very long way towards permitting the production of a publicly curated online archive of Oireachtas debates and hearings. However, there must be limits to what constitutes a “report”. And it may be that the archive exceeds them, at least in some respects.

Third, if section 71 CRRA isn’t enough, then a current reform process might provide another exception to permit the production of a publicly curated online archive of Oireachtas debates and hearings. (more…)

Compensation for breach of the proposed ePrivacy Regulation [Ongoing updates]

Last updated: 26 October 2017

Compensation and ePrivacy (via edri)Parallel to my interest in compensation for breach of the General Data Protection Regulation [GDPR; Regulation (EU) 2016/679], I am also interested in the question of compensation for breach of the proposed ePrivacy Regulation (hereafter: pePR; see, eg, the EU Commission’s proposal for a Regulation on Privacy and Electronic Communications; on which see Flash Eurobarometer 443 Report on e-Privacy (pdf download)).

Article 22 of the Commission’s proposal provides:

Any end-user of electronic communications services who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the infringer for the damage suffered, unless the infringer proves that it is not in any way responsible for the event giving rise to the damage in accordance with Article 82 of Regulation (EU) 2016/679.

The emphasised words appear in exactly the same form in Article 82(1) GDPR. The remainder of Article 82 provides circumstances where an infringer is not responsible for the event giving rise to the damage and thus not liable for breach of the GDPR, and those circumstances apply mutatis to an infringer who would not be liable for breach of the pePR. This is not surprising: Article 22 of the pePR appears in a list of Articles (from 18 to 24) in which the supervision and enforcement of the pePR, and remedies for its breach, are integrated with those provided by the GDPR. The effect of Article 22 is to provide for compensation for breach of the pePR on the same basis as compensation is available for breach of the GDPR.

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