In Ireland, Europe, and the UK, politicians are all striving to demonstrate that, when it comes to online harm and policing the internet, they can be the toughest, meanest, sheriffs in town — and quick on the draw as well.
That is because there are votes in this, and not many to be harvested by worrying about the consequences for freedom of expression, which could be significant once legislators start to get carried away by two of their most common reflexes: mission creep and over-reach.
In Ireland, directors of social media giants such as Facebook and Twitter would become personally criminally liable for letting their platforms be used for online harm if discussions between Media Minister Catherine Martin and Fianna Fáil senators Malcolm Byrne and Shane Cassells come to fruition in the form of an amendment to proposals to be considered by the Oireachtas in the months ahead.
The online safety and media commission legislation will enable substantial fines to be levied on platform operators and gatekeepers. However, online safety campaigners want to toughen it up with a “game changer”, which they compare to health and safety legislation, that opens directors of companies to be prosecuted for breaches of the law.
The argument runs that vastly profitable social media firms simply do not regard fines as a significant punishment or deterrent. The threat of criminality, politicians believe, will be a mind concentrator of the first order.
It is beyond argument that encouragement of terrorism, child abuse, cyberbullying, hate speech, and several forms of fraud saturate the internet. However, within the campaign to limit the pervasiveness of damaging online content, there is an incompatibility with the desire to promote and support an open internet. And in parallel we run the risk, too little discussed at the moment, of a massive expansion of the powers of the state and surveillance of our lives.
Ireland’s legislation will have to dovetail with the EU’s Digital Services Act, while the UK is tying itself in knots with a category being defined as “legal, but harmful” — such as posts promoting self-harm or misinformation that can result in physical or psychological damage. While thresholds vary enormously — one person’s mildly received insult can be someone else’s trauma — it does imply an increasing legislative obsession with the definition of “harm” rather than “crime”. That is where potentially liberty-sapping over-reach can come in.
We will need safeguards as well as penalties but it is the latter, rather than the former, that are dominating discussion thus far.