The Minister for Communications, Denis Naughten, has confirmed that plans to appoint a Digital Safety Commissioner for Ireland (DSC) will go ahead in 2018. The DSC will act as an ‘Internet regulator’, with powers of enforcement and responsibility for a ‘notice and takedown’ regime, to ensure the online safety of Internet users.
The proposal for a DSC is contained in a Report from the Law Reform Commission (LRC) on Harmful Communications and Digital Safety, which also contains a draft legislative proposal. The LRC has recommended that the scope of regulation by the DSC should include all ‘digital service undertakings’, which would be defined very broadly to cover intermediary service providers, internet service providers, internet intermediaries, online intermediaries, online service providers, search engines, social media platforms and websites and telecommunications undertakings.
The DSC mechanism is partially inspired by the systems in place in Australia and New Zealand, which have specific timelines linked to the obligation to unlawful material, with removal generally being required within 48 hours. In Ireland, under the current LRC proposals, the DSC will be mandated to develop a national Code of Practice for Take Down procedure, which would contain detailed and practical guidance on the procedure for ‘takedowns’, a requirement that the takedown procedure is made available free of charge and timelines within which offending materials should be removed.
It should be noted that the Australian and New Zealand regimes were implemented on a somewhat blank legislative canvas. Any proposal in Ireland must be compliant with the overarching requirements of the eCommerce Directive (which does not contain mandatory timelines, but requires internet intermediaries to ‘act expeditiously’ or risk losing its legal immunity). It remains to be seen whether an additional layer of Irish regulation on tech and Internet companies would have any impact on Ireland’s international reputation as an attractive place to do business.
An Taoiseach Leo Varadkar had previously indicated that Government plans to appoint a DSC were ‘on hold’, however, he has since clarified that he may have ‘mis-spoken’.
The Department of Communications has organised an open digital safety forum on March 8 at the Royal Hospital Kilmainham involving Gardaí, Interpol, NGOs, state bodies and parents groups. We await further detail on this proposal.