Following the suicide of the Irish TD, Shane McEntee in 2012, a number of other high profile suicides, and the increase in abuse targeted at politicians through social media, an Oireachtas Committee on Transport and Communications was convened in early 2013 to examine the role of social media in public discourse. The committee chair, Tom Hayes TD said, in an interview with RTE, that “the media is in a different era now. It is very, very challenging and we need to control it…and put standards in place” (RTE, 2012). When proposing the Harmful and Malicious Electronic Communications Bill 2015, former Irish senator Lorraine Higgins said that social media, through which she had personally been subjected to abuse, had released “an unpleasant side of human nature that has been allowed fester because of the lack of clear legislation in this area” (Irish Times, 2015a). In the same op-ed, the senator continued, “the time has come to fight back and work to protect others online who might be more vulnerable and unable to take such abuse. Robust laws designed to protect citizens online are crucial”. In April of 2015, when former Minister for Communications Pat Rabbitte introduced the Public Electronic Communications Networks (Improper Use) Bill, he proposed that it would now “make it an offence for a person to send or cause to be sent by means of public electronic communications network a message or other matter that is grossly offensive or menacing in character” (Irish Times, 2015b). Clearly, Irish public representatives are aware of the potential of social media and the internet to cause offence. Equally clear is their stated desire to safeguard the interests and rights of Irish citizens through regulation and legislation. That said, since the advent of social media, successive governments have treaded softly in this area.
Given that there is a plethora of regulation, legislation and policy already in place to protect Irish citizens, and given that legislation is sometimes seen as a heavy handed approach to human behaviour, this light touch is perhaps a good thing. It has been suggested by Digital Rights Ireland, among others, that online communication be treated the same way as offline communication and therefore should be subject to the same laws and regulations as existing forms of communication. Indeed, in the courts, this is what has been happening. Public outcry and moral panic in the face of perceived online dangers is understandable, but there are laws in place to protect citizens from these dangers. Calls for legislation in the wake of tragedy or a fresh round of online abuse, while commendable, are reactive and fail to acknowledge that the laws which apply offline also apply online. At its core, social media is a modern form of communication and expression. So, it is to laws, regulations, and policy applicable to social media, concerning how people express themselves and how that expression is protected, that we first turn.
In any discussion around communication and expression, laws pertaining to freedom of speech should be considered. In the Irish context, citizens are afforded freedom of expression; that expression is constitutionally protected, and citizens are also protected from expression. In other words, within the constitution of Ireland, article 40.6.1.i states that the right of citizens to freely express their convictions and opinions is guaranteed by the state (Bunreacht na hEireann, 1937). Further, not only does the Constitution protect the citizens right of expression, but with Article 40.3.2., it also protects the citizen “as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen.” Without a constitutional amendment, changing this article, introducing legislation which effects expression, would be difficult. Notwithstanding this, Ireland is also a signatory of the European Convention on Human Rights which states that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers” (ECHR, 1950). Additionally, with the passing of the Defamation Act 2009, and the replacing of separate torts for slander and libel with a tort of defamation, false statements made on the internet are now to be regarded libellous, and so defamation, whether committed in a letter, a newspaper, a website or on a social media platform, is defamation.
At times, online communication and expression is addressed specifically to an individual and, at times, this communication can cause the recipient to perceive personal insult. Of particular concern to Irish legislators, over the last few years, has been the issue of online harassment or “cyberbullying”. This concern has been prompted by a seeming increase in prevalence, high profile cases of public figures being harassed online and highly publicised teen suicides (Ciara Pugsley in Leitrim and Erin Gallagher in Donegal in 2012). Again, there have been calls for specific legislation to protect social media and internet users. The now predictable reaction of the political class blissfully ignores the fact that social media and online behaviour are covered by offline laws and regulations. It would also seem that those who call for regulation and penalty for those who misbehave online are either ignorant of the current legislation or, like Mr. Hayes (quoted above) would wish to control or restrict how people express themselves and how they communicate on line. Defining “cyberbullying” is also difficult and while the legal profession in Ireland has made an attempt, there are differences of opinion within Psychology and particularly Cyber-psychology as to whether the behaviour exists, as defined, and whether it is as prevalent as some of the self-report questionnaires say. Due to the difficulty in defining the behaviour, prevalence rates vary from 8.6% (Schenk & Fremouw, 2012) to an astounding 70% (www.nobullying.com, 2016); the variation in these rates being down to definition and methodology of data collection.
Bullying has been defined by Olweus (1993) as intentional, repeated aggression targeted at an individual who cannot defend them self. Crucially, in the Olweus definition, bullying is comprised of repeated aggression and there is a significant power imbalance between perpetrator and victim. When defining “Cyberbullying” the temptation has been to append “…using technology…” to the Olweus definition. However, certainly from a psychological perspective, there are numerous differences between face-to-face and online aggression. Relatively little is known about the motivations or goals of the cyberbully or the long term consequences to the cyberbullied. That said, existing legislation, Section 10 of the Non-Fatal Offences Against the Person Act 1997 (eISB, 2017), states that “Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence”. In addition to this legislation, in September of 2016, the Law Reform Commission (LRC) proposed new criminal offences and an oversight body to protect users of internet technology in Ireland. The commission was particularly interested in protection against “cyberbullying” and “revenge porn”. Firstly, the State legal advisory body proposed a legally binding “code of conduct” which would see the digital industry remove offensive material from the internet in a timely and timetabled way. Secondly, the LRC has proposed the establishment of an office of digital safety commissioner who would oversee implementation of the “code of conduct”. The LRC report, “Harmful Communications and Digital Safety”, stretching to 237 pages, also proposes a number of amendments to existing law; expanding the definition of harassment to include online activity, making “stalking” a specific offence and the expansion of the existing offence of sending threatening messages. As noted above though, harassment, “stalking” and sending threatening messages are already illegal, so it is hard to know the purpose of this report and these recommendations.
As yet, in Ireland, we have not formulated specific internet and social media legislation or regulation and, as can be seen for the above, there is little in the way of “joined up thinking.” The legal profession are content using existing offline legislation to prosecute online transgressions. From a policy standpoint, it would seem that our legislators are content to react to moral panic and public outcry on an ad hoc basis. Social media and the consequences of online misbehaviour provide a convenient whipping boy, a suitable scapegoat (apologies for mixing metaphors) which can be pointed to to confirm technological knowledge or to verify an understanding of the plight of the modern parents or young people. While speaking at the launch of the Citizens Assembly, for example, convened in late 2016 to discuss an amendment to the Irish constitution, Irish Prime Minister Enda Kenny pleaded with users of social media to reflect before interacting with the members of the assembly. Social media, he said, “has the Assembly within the reach and the sights of those with deeply held views. Regrettably, we live in a time when an opposing view is no longer seen simply as a diverse opinion, or a topic worthy of debate. Rather, we live in a time when diverse opinion has become something, or someone [sic], to be pitied, to be ridiculed, and indeed, virtually hounded”. The Assembly was being launched, deliberations had not yet begun, yet the Irish prime minister was bewilderingly calling for calm on social media. Tellingly though, in April 2014, the current government published “Better Outcomes, Brighter Futures”, an Irish national policy framework for children and young people up to 24 years. This framework purports to represent and co-ordinate an integration of all departmental and agency policy (local, national, interagency and cross departmental) as it pertains to the care and welfare of children and young people. Along with proposing a vision of rights, inclusion and support for young Irish people, the framework outlines five national outcomes targeting health and wellbeing, learning, protection, economic opportunity, and engagement. The phrase “Social media” is mentioned a total of five times in the framework document, and only then in the context of infrastructure and security.
There is undoubtedly a disconnect between what legislators say, what is necessary, and regulation. There are those, Digital Rights, the legal profession and some legislators, who feel that existing legislation which ensures protection of citizens, is sufficient. On the other hand, some legislators feel that strict legislation is required. It is difficult to pinpoint the reason for this disconnect. Perhaps, the fact that the internet and social media are so recent and that legislators do not fully understand their influences; this would seem unlikely. It is likely, that if the government were to introduce legislation curtailing expression, there would be a public backlash. It is therefore conceivable that within government there is no appetite for a fight; the current Irish government is a minority government, further weakening its position. One could be cynical and assume that the government are unable to legislate something they do not fully understand; it is unwilling to impose legislation on what citizens now consider an entitlement; following a number of bruising battle with the public, there is no appetite for a fight it would surely lose. That said, developing interventions, policy and legislation which addresses online behaviours or which best protects the rights of citizens requires information and knowledge which will come from research. For example, at present in Ireland, there are no policy guidelines in place to protect young social media users from the possible negative effects of the media. Further, there is no research framework in place. So we find ourselves in a position where researchers in Ireland are exploring social on an ad hoc and disjointed basis and “Brezzie”, a television personality, is driving policy around social media and mental health.
From this brief exploration of the legislation and policy pertaining to the internet and social media, which the Irish government, public representatives, government departments have proposed and imposed over the last few years, the picture which emerges is complex. The area itself, particularly social media, is relatively new and not only are young users coming to terms with its use and effects, but parents, teachers and our legislators are also struggling with the media. The leader of the Irish government and the ministers responsible for technology, communication, and the protection of young people are from an era when the internet and social media did not exist. This has lead to an underestimation of the media and its capabilities and has prompted reactions like that of senators Higgins, Rabbitte and former government minister Ruairí Quinn, when he called the internet “a playground for anonymous back-stabbers” (Irish Times, 2012c ). The majority of young Irish emerging adults now see social media as part of their lives; 96% of Irish 15-35 year olds own a smart phone (Thinkhouse, 2014) and according to research, some spend up to 6 hours per day connected to the internet via some device. Social media clearly plays an important part in the lives of a large proportion of the population, yet in the last decade, successive governments have left the social media world untouched, from a regulatory perspective. For those who advocate for free speech and freedom of expression, this is welcome. However, for the government, parents and educators naiveté drives moral panic, which in turn drives flawed legislation and policy.
Bunreacht na hÉireann (Constitution of Ireland) Enacted in 1937.
ECHR. (1950). Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as Amended) (ECHR) Art 10, 1950.
eISAB. (2017). Article 10 retrieved from http://www.irishstatutebook.ie/ on 16th January 2017.
Irish Times. (2015a). Lorraine Higgins: New laws must tackle abusive, threatening trolls. Retrieved from http://www.irishtimes.com/opinion/lorraine-higgins-new-laws-must-tackle-abusive-threatening-trolls-1.2293740 17th January 2017.
Irish Times. (2015b). Pat Rabbitte introduces Bill to outlaw sinister social media content. Retrieved from http://www.irishtimes.com/news/politics/oireachtas/pat-rabbitte-introduces-bill-to-outlaw-sinister-social-media-content-1.2178773 17th January 2017.
Irish Times. (2012c). Quinn says online media as accountable as traditional media. Retrieved from http://www.irishtimes.com/news/quinn-says-online-media-as-accountable-as-traditional-media-1.456120 24th January 2017.
Olweus, D. (1993). Bullying at school: What we know and what we can do. Cambridge, MA: Blackwell.
Nobullying.com. (2016). Bullying statistics. Retrieved from https://nobullying.com/bullying-statistics-2014/ 17th January 2017.
RTE. (2012). Oireachtas committee to examine social media role. Retrieved from http://www.rte.ie/news/2012/1227/360511-social-media-committee/ 17th January.
Schenk, A., & Fremouw, W. (2012). Prevalence, Psychological Impact, and Coping of Cyberbully Victims Among College Students. Journal Of School Violence ,11(1).
Thinkhouse (2015). Retrieved 19th Dec from http://www.thinkhouse.ie/downloads/mobilereport/Full-Report-Thinkhouse-Mobile-Youth-Survey.pdf