Ireland has the potential to be a critical ‘influencer’ in the behaviours and approaches taken by global social media companies, particularly in areas concerning privacy and hate speech. That’s according to Marc Rotenberg, President of the Washington-based Electronic Privacy Information Center (EPIC) who delivered the 12th annual Dave Ellis Memorial Lecture. The annual lecture, organised by the legal rights organisation FLAC, took place in the Pillar Room, Rotunda Hospital at 6pm yesterday.

As President of EPIC, Marc Rotenberg advocates on privacy and transparency through the US federal courts, pursues open-government cases, defends consumer privacy and appears before Congress and judicial organisations. In 2016, the Irish High Court appointed EPIC to act as a “friend of the court” (amicus curiae) in the case of Data Protection Commissioner V Facebook Ireland & Schrems to give a counterbalancing perspective to that of the US government. FLAC has continued to represent EPIC in this litigation as part of its strategic litigation work. EPIC maintains one of the most popular privacy websites in the world – www.epic.org.

According to Mr Rotenberg: “As home to the European headquarters of the world’s biggest social media corporations, Ireland now has a critical responsibility to safeguard fundamental rights in the digital age. Enforcement under the GDPR and new laws to address the challenges of fake news and hate crimes in cyber space should be top priorities for the Irish Government.”

“It’s easy to criticise Facebook for their business practices and their disregard for the rights of internet users. However, the real responsibility lies with those who have the authority to regulate internet companies and protect basic rights. We must expect more of those who are responsible for safeguarding the public interest.

“Ireland’s role as a key regulator of the internet giants is being watched worldwide, particularly by organisations that advocate for human rights and privacy. This is a big responsibility for any country, but a responsibility that cannot be shirked.”

Mr Rotenberg’s lecture also addressed some of the pioneering work being undertaken by EPIC in holding the US administration to account: “EPIC has worked to hold successive US administrations to account. We are a non-partisan organisation focused on holding government to account. We have taken challenges against the Obama administration, and are have pursued cases concerning the 2016 US presidential election in relation to Russian cybersecurity, hacking and the release of President Trump’s tax returns because this is an important public interest issue.

“This year we have repreatedly urged the US Federal Trade Commisison to take action against Facebook. Our demand follows a successful settlement EPIC and other US consumer privacy organisations obtained against the Internet firm in 2011. But the FTC has failed to enforce the rights established in the Consent Order. And so we have asked the US Congress to monitor the developments of the Federal Trade Commission,” said Mr Rotenberg.

When EPIC was appointed as an amicus to the High Court in 2016, as an NGO with limited resources it experienced difficulty finding legal representation. Ultimately, the representation was provided by FLAC. FLAC was pleased to support an NGO seeking to uphold fundamental rights.

Speaking ahead of yesterday’s lecture, Chief Executive of FLAC, Eilis Barry said: “Accessing legal representation can be a barrier for individuals and NGOs who wish to litigate on public interest matters. There is an inequality in the legal capacity of an individual, or NGO, to challenge the law, compared with the resources potentially available to social media operators or the State.”

“A reform of our courts system is needed to enable greater legal advocacy and litigation on public interest issues, not only in relation to the digital space. Such reform should include an expansion of the provision of legal aid, changes in court rules and procedures in relation to multi-party actions, protective cost orders and the rules on standing and also the role of amicus curiae.”

Ms Barry said that FLAC recognised the growing policy and political consensus around the need for regulating social media. “The objective of regulation should be one which makes the online space one that is civil, safe and democratic. In framing regulation, there has to be a commitment to the principles of transparency, accountability and the protection of representative democracy in the online space. Any regulation introduced also needs to tackle the rise of online hate speech which is widespread against groups such as Travellers and asylum seekers.”

“In Ireland, these principles need to go beyond the revenues and returns to our economy from the social media organisations who have a presence here. Above all, in delivering effective regulation, regardless of who the regulator will be, it needs to be effectively resourced to ensure effective monitoring and effective remedies,” she added.

FLAC’s decision to dedicate the 12th Annual Dave Ellis Lecture to privacy and access to justice in an online context is based on the organisation’s increasing concern over the increased threats Ireland’s unregulated digital space presents in terms of fundamental rights.

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