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Strategic litigation is route to a better internet for democracy

13 May 2019 / technology Print

Strategic litigation route to best internet for democracy

A Legal Hackers seminar on information disorder in Blackhall Place heard that we are now at the point of widespread acknowledgment of the need for internet regulation.

But attempts to regulate disinformation comes up against the right to freedom of expression, so there is an unwillingness to interfere arising from the concept of a ‘marketplace of ideas’.

Freedom of speech is a yardstick for democracy, the 9 May seminar heard, and this decision-making is difficult because society doesn’t like the idea of choosing the person or institution who decides what can or cannot be said in public.

If we don’t have a sheriff, we will have mob justice, the seminar heard, but the issue is who gets to police the parameters of the web and decide what is transgressive behaviour.

Watershed moment

However, the cacophony of social media is now pushing us to a watershed moment as the internet knocks against traditional ideas of free speech.

Control of the internet is an issue that crosses the machinery of government all the way from national security to cyber security, to advertising fraud, to business monopoly, across to public health policy because of the anti-vaccination movement.

The responsibility seems to straddle many bodies, the Legal Hackers seminar at Blackhall Place heard last night and it is unclear where fresh policy ideas will come from.

Liz Carolan is head of Digital Action which works to counter digital threats to democracy.

She described finding ‘bad actors’ using barefaced lies to interfere with democracy but free to continue because of the lack of a clear line of responsibility.


As a test, Carolan sent one problematic advertisement for adjudication to the Advertising Standards Authority, Standards in Public Office Commission (SIPO), the Referendum Commission, and the Broadcasting Authority of Ireland.

While all were sympathetic, no organisation specifically had authority.

Political scientist Carolan described as “absolutely mindboggling” the battle for control of the world wide web.

The volume of material is overwhelming and is largely managed by social media platforms through algorithms.

But artificial intelligence is extremely bad at understanding intent, Carolan said.

Policing the internet

She described policing the internet in terms of actors, behaviour and content but said the important question is who gets to police the internet, as even tech platforms themselves now realise they need some kind of control mechanisms.

In order to get a better internet for democracy, there is a trend towards strategic litigation to use the courts to establish effective case law, Carolan concluded.

General Data Protection Regulation (GDPR) and monopolistic business practice law are being used in legal cases to challenge tech power.

Carolan asked whether existing laws that govern behaviour offline should apply to online life or whether we need separate digital laws.

Public health policy

“Do we need to rethink this from scratch and what does that look like?” she asked, wondering if internet policing should be framed in terms of public health.

On voluntary self-regulation she said that tech companies have “set themselves an easy exam that they failed”.

For society, technology is always going to change faster than policy and the law.

Civil society action from the press is a key part of the policy response, Carolan said but she warned that tech companies’ increased funding for journalism will have implications for accountability.

On electoral integrity, WIT law lecturer Dr Jennifer Kavanagh explained that there have been no overturned votes in Ireland but there have been court-ordered re-counts.

Electoral integrity

Electoral integrity kicks in with balanced airtime on broadcast media, she said. This doesn’t apply to the same extent in newspapers but the internet is “an absolute wild west”, she said.

Funding of political parties is dealt with through the Electoral Act 1997.

Ballot paper logo

Registration of political parties is not compulsory but only registered groups may have a ballot paper logo.

However, Dublin Bus is currently carrying advertisements for unregistered political parties standing for election, the seminar heard.

Ballot secrecy is paramount which is why vote ‘selfies’ are discouraged and vote bribery is clearly illegal.

“The biggest issue that we currently have is with third parties,” law lecturer Dr Jennifer Kavanagh explained.

Electoral integrity applies to traceability of the money behind referendum and election campaigns.

Seeking change in policy

Anyone fundraising, or accepting money, in order to seek a change in policy, has to register with SIPO. Trust comes from transparency, but self-regulation is unreliable, she said.

“In the divorce referendum and the children’s rights referendum [with the same parties in Government on each occasion]  there was more information given by the Government than should have been.”

The Government should confine information to the what and why of the vote and information on sufficiency of ballot papers and count staff, she explained.

'Material outcome'

Despite the Government going beyond its legal boundaries, in neither case had this failed the test of a “material outcome” on a vote, because the issues had been aired in court ahead of time.

An electoral commission is urgently needed in Ireland, she believes. A Kerry election count ended up in the Supreme Court and took three years to be declared. The Supreme Court travelled to Kerry to oversee the re-count in that case.

The Kiely case centred on count transparency, where first and second preferences were marked on an EU ballot paper and third and fourth on the local elections ballot.

Content context

Ciarán O’Connor described his work for the Storyful news intelligence team, which provides ‘context behind content’ for internet video.

He said that closed non-searchable networks, such as WhatsApp, are now stirring up political lynch mobs in countries such as Burma and India, when non-attributable messages spreading like wildfire to whip up hatred.

He described searching for automatic or ‘bot-like’ behaviour on social media, which operates to an almost unimaginable scale and said that many foreign actors were involved in the Repeal the Eighth referendum campaig

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