In the wake of online threats against Irish politicians, and riots in Northern Ireland and the UK fanned by social media, Ireland is vowing to get tough on digital platforms.
Taoiseach Simon Harris – who, along with other political leaders, has been on the receiving end of alleged death threats on social media – said last week that the era of self-regulation for tech giants is “well and truly over”.
Next month, Harris will convene a meeting of State agencies and other stakeholders. It might be easy to agree that online discourse is causing a problem, but it is sprawling, encompassing a dense thicket of overlapping issues. Knowing exactly what to do about it is not so straightforward.
“The whole social media accountability area has lots of problems interacting with each other,” says Liz Carolan, a writer and campaigner on democracy and technology issues.
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What can be done about online threats?
A threat of violence is not made more or less illegal by being made online as opposed to in person. “A bomb threat is an illegal statement, you don’t need new legislation for investigating that,” says Simon McGarr, a solicitor and data-protection expert.
When it comes to the platform where a threat is posted – as opposed to the person making the threat – things get more complex.
The main instrument here is the Digital Services Act (DSA), a piece of European Union legislation. However, the laws in place don’t simply allow the State – in Ireland, through Coimisiún na Meán – to compel the immediate removal of illegal content from an online platform.
An alleged threat against Harris has received extra attention because it stayed up for several days on Instagram, despite the company being alerted to its presence.
According to Eileen Culloty, assistant professor in the School of Communications in Dublin City University, the DSA mandates that platforms “must have structures in place to respond when they’re made aware they’re hosting illegal content”.
So the onus is on the company, she says – but in reality, that also creates a burden on those reporting. “What this whole model does is put massive, massive strain on civil society and public bodies that have to deal with this,” she says.
What happens then?
Ultimately, the DSA allows for significant fines of up to 6 per cent of global turnover, as well as daily penalties, while the European Commission has also said it and local authorities will have power to require “immediate actions where necessary to address very serious harms”.
When it comes to enforcement, there is a division of labour between local regulators such as Coimisiún na Meán and the European Commission, with Brussels taking on a greater role for larger platforms such as the main social media companies and search engines. Much will depend on how this works in practice, especially how the interaction between regulators and regulated plays out.
What about broader issues?
A potentially trickier challenge is the spread of content which Culloty dubs “lawful but awful”, for example, pro-anorexia statements or online bullying. For that, the model is for safety codes to be developed, with Coimisiún na Meán promising “strong sanctioning powers and fines of up to €20 million” in its draft online safety code.
When it comes to political content that is not illegal but may be misleading, regulation has to sit in a delicate balance with freedom of expression. In an age of misinformation and disinformation, the DSA mandates platforms to make public reports of assessments of risks to civic discourse. However, Culloty says these have so far been “mostly nonsense”.
The European Commission has opened formal proceedings against companies, including on political content.
What about elections?
In Ireland, misinformation and disinformation during elections is the responsibility of the Electoral Commission rather than Coimisiún na Meán – but the parts of legislation governing this have not yet been enacted, with a new draft having been sent to the European Commission in July.
The new draft, McGarr says, is better. “It’s more realistic, more defensible and less open to challenge in respect of breaching EU law – and it looks to create an actual operational system.”
He warns that much will rely on codes of conduct that have not yet been finalised: “They’ve punted all the really hard parts of this process down to codes of conduct that are not visible to us. It’s a framework, the actual rules are still unknown.”
How about radicalisation?
Critics of the current approach say it’s overly focused on moderating content rather than more meaningful reforms to how social media works.
“It’s not about unpublishing or taking down – it’s a data problem,” says Johnny Ryan of the Irish Council for Civil Liberties. Online platforms push inflammatory content into people’s feeds, he says, amplifying and rapidly distributing it. A more straightforward approach, he argues, is to rely on existing laws around processing personal data under the GDPR to prevent companies from using information about people’s preferences to serve them this content.
What is at stake for Ireland here?
In reality, much of the new framework for oversight and regulation is in its infancy. How they work in the real world will depend on how specific cases are handled.
The new powers, Carolan says, could be a “sledgehammer”, and she welcomes overt signals from Harris that regulators will be supported in using their new powers.
But the true test of the new system – and of the strength of the politicians’ commitment to enforcing it – is likely to emerge only over time. For Ireland, she argues there is a clear benefit in being to the fore of regulation rather than risk reputational damage.
“Being seen as the Cayman Islands from a regulatory point of view is going to start to hurt,” she says.
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