Digital Rights Ireland

Sunday Business Post article on Freedom of Speech Online

Many thanks to Adam Maguire, writing in the Sunday Business Post, for covering our concerns about Irish libel laws and their impact on free speech online. We’ll be doing our best to secure greater protection for online publishers in the new Defamation Bill. Excerpt:

The upcoming case between popular Irish discussion site boards.ie and MCD, whose solicitors served legal papers on the website’s owners earlier this month, has brought attention to the way the law in Ireland applies to online media, specifically in regard to defamation and anonymity.

While many believe that hiding your name or other personal information will protect you, this is not the case.

‘‘Anonymity online is an illusion – it only takes a day in the High Court to get someone’s identity,” said McIntyre.

[...]

Irish law holds the publication owner responsible for the content in its publication, regardless of the author.

In an online context this means that comments published in a public forum or the comment section of a blog will be treated as the comments of the site owner, even if they are not.

The law is a great disincentive to doing business online – ‘‘People won’t set up websites if they think they will be held accountable for what other people say on their site,” said McIntyre.

‘‘It’s not financially feasible for small companies to risk going to court like that. Even if you win, you will be greatly out of pocket as a result of it.”

The internet does offer more covert avenues for people seeking to have content removed, however. As eCommerce legislation rules the hosting company liable if they are aware of any wrongdoing upon which they fail to act, most such companies will pull content as soon as a complaint is made against them.

McIntyre feels the willingness to pull content without investigating it first is a major problem and one that has no legal recourse for the content owner.

‘‘The situation is ripe for abuse…it’s a form of privatised and cheap censorship that’s quicker than going to court,” said McIntyre.

In an experiment by Dutch lobby group Bits of Freedom, the text of an out-of-copyright book was published on accounts across ten different ISPs. The group then contacted each ISP pretending to be the copyright holders and demanded the content be removed.

Seven of the ten complied immediately.

In the USA, the situation is different: while an ISP is obliged to immediately pull content that receives a complaint, they must then contact the content owner about the decision.

If the owner is willing to stand by their content or comments, then it can be put online again. Any subsequent legal battle will only be between the content owner and the complainant – the ISP is immune from prosecution.

Whatever the outcome of the case between MCD and boards.ie, it is sure to set some precedent.

Regardless of that, McIntyre feels that more can be done to make sure the law is not used as a weapon to silence people who have done nothing wrong.

‘‘Hopefully the case will highlight the need for greater protection for online publishers and the greater need to encourage free speech online,” he said.

[One slight quibble - the US rules mentioned apply to intellectual property issues only - when it comes to defamation actions, US online publishers have even stronger protection.]

August 28th, 2006

Irish Times Endorses Data Retention Case

Yesterday’s Irish Times contained an editorial (subscription required) discussing data retention and supporting our case. We’ve taken the liberty of reproducing it here:

Data retention needs fine balance

How closely should a State monitor its citizens? Should it track every letter you send and receive? Should it fit you with a transmitter, broadcasting your location throughout the day? Should the library inform it of the books and magazines you read, and shops pass along details of items you browse and buy? If you contact the Samaritans, an Aids hotline, an alcoholism treatment programme, should the Garda and State be informed?

Most people would answer ‘No’. Ongoing, unwarranted surveillance of our daily activities is contrary to the very notion of living in a free and open democracy. Yet Ireland has in place a data retention law that permits the electronic equivalent of such surveillance, with plans to introduce an expansion on what can be gathered, held and examined, even for the most trivial misdemeanour.

At the moment, details – but not the content – of every phone, mobile and fax call is stored for three years. This information includes a daily record of the physical location of mobile phone users and data on every number called. The Minister for Justice promised that Garda access to call data would be tightly controlled but access restrictions were never imposed, a situation repeatedly criticised by Data Protection Commissioner Billy Hawkes. And an incoming – and controversial – EU directive will require the storage of similar information relating to e-mails sent and received, and web pages viewed.

Perhaps because such legislation deals with electronic data, and the surveillance happens unseen in the background, it has not provoked significant public debate. But electronic monitoring is potentially far more invasive than the “real world” equivalents noted above, as it carries greater possibilities for abuse and misuse, ranging from blackmail to faulty “profiling” to identity theft. Such large-scale surveillance reverses many tenets of democratic society.

It is legitimate, of course, that law-enforcement agencies should have access to some call data. Such information has helped in several high-profile prosecutions, including the Omagh bombing case. But access must be proportional to the threat posed. In particular, there should be clear evidence of a need to move beyond the six months of storage for these data already mandated for billing purposes. Neither the Government nor Garda has come up with a case in which they needed call data from earlier than this six-month framework.

Privacy watchdog Digital Rights Ireland has launched a legal challenge on constitutional and human rights grounds in an attempt to halt the gathering and long-term storage of such data. The case is likely to make its way to the Supreme Court, and from there to the EU courts, as a challenge to the EU directive. Given the breadth of the Irish data retention regime, surpassing that of most other democracies, it is appropriate that it should be tested in this manner. It is important also that the issues involved be subject to proper, if belated, public debate.

3 comments August 8th, 2006

Media Roundup – Data Retention

We’ve achieved very good publicity since we announced our Data Retention case with front page stories in the Irish Times and the Irish Examiner, and coverage in the Irish Independent and Silicon Republic. We’ve also had radio coverage on Today FM (Matt Cooper), Newstalk FM (Eamon Dunphy), Radio 1 (Tom McGurk) and on local radio via Independent Network News.

Add comment August 6th, 2006