Last October and November, I sketched the evolution of the government’s proposals for a digital safety commissioner. Following a consultation process last Spring, and missing the deadline of the end of the year by a few weeks, they have published their proposals for the general scheme of the Online Safety and Media Regulation Bill. In its current form, important elements are dangerously vague, and there is an unpardonable oversight in the drafting – like the famous mint, there is a hole in the middle of the Bill; unlike the mint, the hole isn’t meant to be there; and I will return to this point in the last paragraph below.

The Irish proposal is the newest in a long line of recent initiatives, at state and international level, that seek to regulate online content in various ways. For example, the EU has revised the Audiovisual Media Services Directive (AVMS II) to regulate the audiovisual sector, it is promoting a code of conduct on countering illegal hate speech online, and it has controversially expanded the reach of copyright online. The UK has proposed widespread regulation of online harms, the new government has promised to develop legislation to improve internet safety for all, and a draft Online Harm Reduction Bill is to be introduced as a Private Members Bill in the House of Lords.…

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In my earlier post (republished here) on the demise of the UK’s current age-verification plans for online porn – and what that might mean for Ireland’s proposed Digital Safety Commissioner, I noted that long-standing Irish Government policy is to establish such a Commissioner, and that the current timetable is that it is intended to bring forward the necessary legislation before the end of the year. Meanwhile, two Private Members Bills, the Digital Safety Commissioner Bill 2017 and the Children’s Digital Protection Bill 2018, are currently before the Oireachtas.

It seems that Government policy in this regard proceeds apace. In his evidence to the International Grand Committee on Disinformation and ‘Fake News’ (hosted in the Seanad Chamber by the Joint Oireachtas Committee on Communications, Climate Action and Environment) on Thursday, 7 November 2019, last, the Minister for Communications, Climate Action and Environment, Richard Bruton TD, said:

The regulation of harmful online content … is being pursued by my Department. … The approach we are taking to online safety, for which I am directly responsible, is not dissimilar to that being taken in Australia. We propose to define harmful content, require companies to have a code of practice and put an online safety commissioner in place to oversee the delivery of those codes of practice.

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Earlier this week, in a written statement to the House of Commons, the UK’s Secretary of State for Digital, Culture, Media and Sport, the Rt Hon Nicky Morgan MP, announced the end of the UK’s controversial age-verification plans for online porn.

Part 3 of the Digital Economy Act 2017 ((hereafter: DEA), as given further effect by the Online Pornography (Commercial Basis) Regulations 2019 (SI No 23 of 2019)) seeks to regulate online pornography. Section 14 DEA imposes a requirement on pornography websites to prevent access to by persons under 18; section 16 DEA permits the designation of an age-verification regulator (AVR); and, pursuant to the procedure in section 17 DEA, the Secretary of State for Digital, Culture, Media & Sport announced in the House of Commons on 20 February 2018 that the British Board of Film Classification (BBFC) was designated as the AVR.

Pursuant to section 25 DEA, the AVR published Guidance on Age-verification Arrangements (pdf) in October 2018, and this was approved by the House of Commons on 17 December 2018. At this point, the EU Commission should have been notified, pursuant to Articles 4 and 5 of Directive (EU) 2015/1535, which lays down a procedure for the provision of information to the Commission to ensure as much transparency as possible as regards national initiatives for the establishment of technical regulations and of rules on Information Society services.…

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The Law Reform Commission has today published its long-awaited (pdf) a Report on Harmful Communications and Digital Safety (pdf). It contains 32 recommendations for reform, and includes a draft Harmful Communications and Digital Safety Bill to implement them. In my view, the most important recommendation is the proposal to establish a statutory Digital Safety Commissioner, modelled on comparable offices in Australia and New Zealand. The Commissioner’s function would be to promote digital safety, including an important educational role to promote positive digital citizenship among children and young people. The Commissioner’s role would also include publication of a statutory Code of Practice on Digital Safety, to set out nationally agreed standards on the details of an efficient take-down procedure. As the Law Reform Commission explains:

Under the proposed statutory system, individuals would initially apply directly to a social media site to have harmful material removed in accordance with agreed time-lines: this is similar to the statutory system in place in Australia. If a social media site did not comply with the standards in the Code of Practice, the individual could then appeal to the Digital Safety Commissioner, who could direct a social media site to comply with the standards in the Code.

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In the kind of serendipitous conjunction characteristic of intersecting internet feeds, I came across three related stories almost simultaneously. First, from Silicon Republic:

Facebook denies political bias in hullabaloo over trending topics

Facebook has been forced to deny claims that it employed contractors to manipulate and suppress stories in trending topics of interest to Conservatives in the US.

If there is a problem here, and if there is a legal solution to this problem, then that’s where the second and third stories come in. Via Steve Hedley‘s Private Law Theory blog, I read about Jack Balkin‘s article “Information Fiduciaries and the First Amendment” 49 UC Davis Law Review 1183 (2016) (UCDLR pdf | SSRN preprint | Balkinization blog post):

… online service providers and cloud companies who collect, analyze, use, sell, and distribute personal information should be seen as information fiduciaries toward their customers and end-users. Because of their special power over others and their special relationships to others, information fiduciaries have special duties to act in ways that do not harm the interests of the people whose information they collect, analyze, use, sell, and distribute. These duties place them in a different position from other businesses and people who obtain and use digital information.

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