Beware the censor: Your online freedom threatened in rush to regulate content
THE issue of social media regulation has reached crisis point worldwide. This is partly due to long-standing concern about harm to individuals, highlighted by the Channel 4 ‘Dispatches’ documentary which showed how Facebook moderators were trained to allow a video of an adult kicking a screaming child to remain on the site.
But the immediate impetus for reform comes from a different direction – a fear social media has become a platform for hatred and threat to democracy.
In March, UN officials concluded propaganda on Facebook played a “determining role” in triggering the genocide of the Rohingya in Myanmar. In the United States and UK, investigations have confirmed the use of ‘ fake news’, personal data stolen from Facebook in the Cambridge Analy tica scandal, and other social media manipulation to interfere with the 2016 presidential election and Brexit vote.
Closer to home, Facebook and Google were forced to restrict ads relating to the abortion referendum following complaints about foreign money being used to circumvent Irish law.
Together, these concerns have led to calls for new regulation of social media and some changes to the law are certainly necessar y. But reform in this area requires careful thought first if changes are to be helpful and not harmful.
The starting point is that social media regulation involves multiple problems which overlap but require different responses.
For example, concerns about electoral integrity combine the regulation of campaign finance and foreign money with issues around targeted advertising and abuse of personal information.
The campaign finance points certainly require new law; the abortion referendum highlighted the weakness of Sipo in dealing with online material and TD James Lawless has already put forward a bill which would require greater transparency on the funding of political advertising. But the data protection issues are largely covered by existing law and require better enforcement, not changes in the law.
Indeed in 2011 the privacy campaigner Max Schrems warned the Data Protection Commissioner of the risks which were later exploited by Cambridge Analy tica on behalf of US President Donald Trump and the Brexiteers; despite this, the regulator did not ensure that Facebook took adequate steps to safeguard users’ information.
We see the same weak enforcement of existing laws in other social media contexts.
The current law on harassment was not drafted with the internet in mind, but several prosecutions have confirmed that it does cover serious abuse on social media. Despite this, the anecdotal evidence is that victims of online harassment often feel let down by the Garda response to their complaints.
This seems to be the result of underfunding and lack of training in the force of how to investigate these cases. Roughly one-in-five Garda stations does not have internet access, and the specialist Garda Cyber Crime Bureau still has a one- to two-year backlog in carrying out forensic examination of seized laptops. While reform of the online harassment offence is desirable, the immediate priority should be ensuring the existing law can be enforced. There is no point in creating new crimes which will also go unpunished.
The Law Reform Commission proposal that Ireland should legislate for a Digital Safety Commissioner is also problematic. This has been contentious within Government, with Communications Minister Denis Naughten (right) initially in favour but the more recent Action Plan for Online Safety shelving it for the time being.
This ref lects a growing recognition that the proposal would be contrary to European human rights law by providing that social media firms must take down “harmful content”, with a nonjudicial body empowered to order its removal, but without defining the term “harmful” or providing any right to be heard to the person being censored.
By requiring social media firms to act on the vague term “harmful content”, the Digital Safety Commissioner proposal also inadvertently highlights the risks of privatised censorship.
Facebook in particular is notorious for arbitrar y interpretations of its terms of use.
It has taken a peculiar US combination of libertarianism and prudishness, permitting graphic depictions of violence and hate speech but banning pictures of breastfeeding or medieval art where there is a hint of nipple.
Proposals to regulate social media which depend on unaccountable censorship by private companies with dominant market power represent a real threat to freedom of expression online.
There is undoubtedly a need for action in Ireland to tackle specific problems on social media. For example, given the international growth of the far right it is worrying that many forms of hate speech are legal under Irish law – these can and should be legislated for. But it is important that reforms should be targeted, respect fundamental rights of internet users, and not be used as a substitute for adequate funding for state agencies.