The Government’s plans for a digital safety commissioner proceed apace

www safety first; via Pixabay (element)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. That online safety commissioner would receive third party complaints and could, on his or her own initiative, require takedown or notify companies that their code was inadequate. Non-compliance with the directions of an online safety commissioner would be a crime and the commissioner could publish details of non co-operation. That legislation is in development and we have had consultations on it, …

There is no doubt that the power of the Internet is accelerating. … This is a very tricky area for governments and it is absolutely essential that we work together across countries. … This is a challenging area and this initiative is worthwhile in bringing countries together to be a part of this group.

In answer to a question from the Committee, the Minister added:

In developing Government legislation on an online safety commissioner, we will adopt the principles set out in some of the Private Members’ Bills, particularly provisions defining harmful content which listed issues such as cyberbullying, creating suicidal intent and so on. We will look at how we accommodate those. Nonetheless, getting legislation through the Office of the Parliamentary Counsel requires the Attorney General’s sanction for the different elements. A number of elements of these Private Members’ Bills run into significant problems. While we can transpose significant blocks of these Bills in our legislation, we also have to change significant blocks of it. The difficulty is that I have to get someone to stamp the legislation. I am exerting maximum pressure … to hit the end of the year deadline I have set.

And, in answer to a further question from the Committee, the Minister clarified:

The legislation I am introducing is limited to harmful content such as cyberbullying of individuals rather than the addressing of political fake news or distortion of views. We are not designing it in that way and we are defining harmful content in quite a narrow way. We are working on how such definitions can evolve over time in a way that is legally robust. That will have to come back in some form to the Legislature and an online safety commissioner cannot create that legislation. We must devise a vehicle for that.

None of this adds any greater detail to the government’s timetable of legislation before the end of the year, but it does confirm that the government is committed to the regulation of online harms and that the work is still ongoing. However, an important note of caution has been sounded by Emer Shannon (School of Law, Maynooth University), who calls into question the Minister’s reliance on the Australian experience:

Is Ireland’s proposed Digital Safety Commissioner justified?

Opinion: the mooted office is modelled on a similar body in Australia [the eSafety Commissioner], but there is little independent research about how well it is functioning

The Office of the eSafety Commissioner is an independent statutory office, supported by the Australian Communications and Media Authority. … Its overall functions stem around three key areas; providing a complaints service for young Australians who experience serious cyberbullying, identifying and removing illegal online content and tackling image-based abuse.

Although this body has been regarded as an innovative solution, it must be noted that there is little research conducted on the success of this body from an unbiased perspective. Current quantitative research has been conducted by the Office of the eSafety Commissioner or linked government bodies. … The lack of independent primary data and academic research on the functioning of the eSafety Commissioner suggests it is hard to confirm whether Ireland should follow the Australian model