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Last week Labour politicians presented two separate bills aimed at shutting down online public conversation. Unelected Labour Senator Lorraine Higgins posted the “Harmful And Malicious Electronic Communications Bill 2015.” Pat Rabbitte published “The Public Electronic Communications Networks (Improper Use) Act 2015” on the same day.

Both can be read in full at the bottom of this post.

Why two separate censorship bills were brought forward by the same political organisation has not been made clear. A cursory reading of both show that not only are they dangerously wide open for interpretation, but that they both seek to make it a crime to cause any offence to powerful interests and politicians.

1 These proposed laws are Orwellian in nature. They seek to make causing “offence”, “annoyance” “inconvenience” and “alarm” an offence punishable by fines and imprisonment.

From Higgins’ bill —-

“For the purposes of this section an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to the other…

…..A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or to both.”

From Rabbitte’s Bill

A person who (b) for the purpose of causing annoyance, inconvenience or needless anxiety to another—

(i) sends or causes to be sent, by means of a public electronic communications network, a message that the sender knows to be false,

(ii) persistently and without reasonable cause makes use of a public electronic communications network, is guilty of an offence.

Pretty alarming and offensive right? These bills enable the squashing of public discussion and dissent. They provide for the legal regulation of online political speech. In a society that already has draconian libel laws to protect the powerful from written or spoken criticism, this is a clear attack on our already delimited democratic sphere.

It gives politicians the ability to censor all online public criticism which might cause them “alarm” “annoyance” or “inconvenience”. Higgins’ bill allows for fines up to €5,000 and prison sentences of 12 months. Not to be outdone Pat Rabbittes proposed law seeks to have fines up to €75,000 and 5 years imprisonment.

The level of punishment sought by the Labour party can only have a chilling effect on many people using social media to engage in public debate. The only possible outcome, if these bills are passed into law, is an increase in the totalitarian potential of the nation state.

2 They want to take away your communication tools too.

Even the wide ranging vagueness of offense and alarm isn’t enough. Say you are found not guilty after being dragged through the courts on foot of the new offenses they laws would create. It has been declared that have done nothing illegal. Yet still you aren’t free to express and communicate without interference from the state and criminal justice system. Under Ancillary Orders of Higgins’ bill, people can be forced by the courts to remove their own content even though you are not guilty of anything….

Ancillary Orders

5. – (1) If on the evidence the court is not satisfied that the person should be convicted of an offence under sections (3) or (4), the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:

(a) that the person remove or delete specific electronic communication(s);(b) that the person shares an apology or correction as the court deems appropriate in the circumstances;(c) that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

It gets worse. Pat Rabbitte’s bill allows the state to seize laptops, mobiles phones and modems etc etc to be taken from you.

So imagine you send a tweet sugggesting Pat Rabbitte was a bit of a hypocrite condemning political organisations with links to paramilitaries who murdered people, given his own political history. Granted that might be hard to fit into 140 characters, but imagine it was possible for the sake of an example. And say Pat Rabbitte was a litigious sort of character who didn’t want to be publicly associated with any of the murders, bank robberies or lots of stuff the Official IRA was involved in when he was member of the Workers Party, the political wing of the OIRA.

I guess you’d be into a couple of tweets now, something that might be construed by Rabbitte and his expensive legal team and barristers as “persistent and without legitimate cause”. It probably might not matter that you feel it important to public discourse that many younger people ought know that that a former minister – responsible for promoting austerity and a gagging law – was once a member of a politico-paramilitary organisation that murdered people. You might even infer that the Stalinist tendencies embodied in WP/OIRA back in the day could be found in a bill that seeks to quash public online political dissent today by actually making it illegal to be a political nuisance.

So you are taken to court and found guilty. Say your day job was a graphic designer, or architect or any other job that requires a laptop and/or mobile phone and access to the net. Your ability to earn a wage (or get donations) relies on these things. Rabbitte’s bill allows for a judge to remove that wage earning ability by seizing the tools of your trade. See:

(6) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.”

3 This is bigger than these two bills. This is about what type of society we want and how we can get there.

These bills are merely the latest manifestation of senior politicians seeking to criminalise public questioning. For the past few years there has been a continual attempt by politicians to shut down public anger, despair and frustration. Especially when that coaleses into social action. This anger, expressed on the streets as well as on social media – is rooted firmly in the inability and unwillingness of current political actors to tackle the causes of inequality and face up to the failure of representative democracy. Instead of taking note of these voices from below, people are called fascists and nazi’s by the very people imposing inequality upon them.

It is demanded that people play nice, suppress their emotions, individualise and internalise their own insecurities. We are expected to respect respectability and applaud green shoots of arithmetical recovery. We all know that these green shoots will never feed us properly, will not undo the loss of mass emigration and suicides. These green shoots and smoke-and -mirror GDP figures wont let us escape shitty short terms jobs or a pension-less future. On the one hand our politicians applaud our ‘sacrifices’, but on the other they are telling us to shut the fuck up. And that is precisely what this bill will be used for.

4 Far bigger communication crime are happening today and the Labour Party are part of the problem.

“ I was aware there was a gap in our legislative armour and I was keen to cover this because I feel a duty as an Oireachtas member. Modern democracies require modern laws and why should Ireland be any different in terms of international best practice?” –Lorraine Higgins at the bill launch.

“Isnt that what you tend to do during an election?” Pat Rabbitte’s response to accusations of lying to the public in run up to last election.

Lorraine Higgins has ran in 8 elections and been rejected every time, yet she’s able to push forward this bill, because she was appointed to the Senate. Higgins likes to talk about her ‘constituency’ in Galway but was never voted into the Dail. In a clip seen tens of thousands of times on YouTube, Pat Rabbitte made clear that lying is part of modern day electoral strategy.

This is Ireland’s “modern democracy.” But what does a modern democracy even mean?

Modern in the sense that all our electronic communications, every phone call, email, our browsing histories, each Facebook update and Twitter direct message, all our location-tracking data, menstrual cycle app info and Snapchat sexy shots, etc. etc. etc. are intercepted, filed and stored by the UK intelligence agencies at GCHQ and shared with the US intelligence gatherers of the NSA?

Modern in the sense that none of the main political parties felt the call of duty to speak out about this, never mind publicly condemn other states for abusing the privacy of its own population? From this alone it is completely reasonable to assume that Higgins, Rabbitte and the majority of political organisations in this state don’t give one flying bollix about what modern democracies actually means for the most of the population. They are the managers of our total surveillance. These censorship bills are yet another expression of nation state surveillance and control that we can see growing across the globe. Across the EU we are seeing laws to criminalise online organising, and political protest. All the while agencies of the US and UK are supported by client regimes to achieve total surveillance of global populations.

5 New Laws, Old Practices

These proposed laws reflect the deeply reactionary and authoritarian nature of the Irish state its relatively closed political classes. As much as we can all see many positive social changes in attitudes and practices – which are exclusively rooted in peoples collective struggles rather than benign political leadership – the Irish state remains instinctively reactionary and under the control of wealthy vested interests. Since the inception of the state, successive governments and powerful elites have used censorship around political speech, free discussion and free assembly and the sharing of knowledge.

Ireland is one of the few *ahem* modern democracies to retain blasphemy laws. This was conveniently omitted from most of the commentary surrounding politicians leveraging the murders in Paris earlier this year to laud themselves supporters of ‘free speech’.

During the financial crisis, new censorship laws within “The Credit Institutions (Stabilisation) Act 2010” were used to hide decisions from public view around bank restructuring. Section 60 of the act made it illegal to disclose what decisions the Finance Minister ordered, but also made it illegal to report that Section 60 was being invoked. In effect this was a super injunction stopping journalists reporting on the fact that they were not allowed to report. Brian Lenihan used this act to block reporting on €3,700,000,000 of our taxes being handed over to Allied Irish Bank in mid December 2010.

As well as refusing women reproductive control over their own bodies, Ireland still bans the sharing of knowledge about abortion. As things stands a doctor can give advice on abortion if a woman seeks an abortion outside of Ireland, but we cant legally tell each other arsing from “Article 26 and the Regulation of Information (Services outside the State for the Termination of Pregnancies) Bill 1995, In Re [1995] IESC 9; [1995] 1 IR 1 (12th May, 1995).” This censorship of course is very difficult to police but the intention is more about shutting down the free sharing of essential and important information than locking people up. In our modern democracy is just not politically possible to lock woman up like this anymore.

(As a quick aside for readers outside Ireland its worth noting that for the first half of respective parties existence Fianna Fail and Fine Gael supported locking women up for being, well…women. These organisations today raise questions about the legitimacy of Sinn Fein given its (past) links with the PIRA. And its totally fine and reasonable in a democratic space to do so.

However FF and FG themselves were not engaged in a wrongheaded low level war with a sectarian state and against a government that organised murders gangs all through the period they were locking innocent women and kids up in workhouses and prisons. There was no external factor enforcing their silence and complicity. This was actual state policy supported and run by FF and FG political organisations. Yet somehow the legitimacy of these political organisations is never really questioned.)

The books “Abortion Internationally,” “Abortion: Right or Wrong.” and “Abortion: Our Struggle for Control” are all banned in Ireland. Whilst not exclusively covering abortion “The Complete Guide to Sex” is also banned. Though in fairness I’m not sure any of us have book shelf strong enough to hold what must be a pretty hefty tome. The fact that these books are undoubtedly shared in digital forms shows how obselete the censorship of artifacts is.

6 Communication tools are important tools in the struggle for social justice.

Social media tools used within an increasingly networked public sphere afford many of us a low cost ability to engage in critical political enquiry and debate about the world we live in. If our conversations – and the tools themselves – are regulated by government – struggles for social justice and equality will be hampered.

Official narratives and meaning making of our lives is still delivered to us by large for-profit media corporations and state run media. For the most part these tend not to reflect our lived reality. Thousands of us across the country blog, tweet and post updates that are rich with political analysis, opinions, sets of ideas and visions. Across all of these is robust criticism of specific politicise and as well as the clear visible failings of representative democracy to deliver real social transformation. They also include articulations of what a genuine democracy of equals could look like.

We share our thoughts, report on local struggles, give our own context to our lived experiences and challenge “common sense” on a daily basis. It is not the place of nation state governments to regulate our thinking, our communications with each other, or our plans for changing things, simply on the basis that they find it offensive or that it causes them alarm.

Many of us are engaged in campaigns, projects and struggle against the causes of inequality and social injustice. In almost all cases, the main political organisations within the state are barriers to solutions long before they are forced to assist. It stands to sense that they are going to be offended. But if members of the professional political classes dont want to be offended or alarmed, maybe they should drop the sense of duty bollix and think about joining these struggles. Or simply get the fuck out of the way.

Either way we dont need new laws and regulations to demand we speak without causing offence. Discourse etiquette has a social context. We live in a neoliberal Ireland, an Ireland wholly captured by the whims and demands of undemocratic financial capital, an Ireland shaped by the same forces and ideology causing social and environmental destruction across Europe and our wider world.

Making it illegal not to be ‘alarmed’ or ‘inconvenienced’ by criticism in this social context is akin to demanding someone stop giving you dirty looks while you keep punching him in the balls. And when he doesn’t to bring him to court to get his balls punched some more by the criminal justice system.

Fuck that.

7 Laws already exist to deal with threats and intimidation

To be clear, I see no point in threatening violence against a politician. The usual media practice is to seek condemnation. Growing up in the north during the 70’s, 80’s and 90’s I’m well versed with the pantomime of ‘condemnation.’ For the most part its circular time filling. Threats to Higgins as she descibed them on RTE Morning are vile, and disgusting. And they almost certainly fall under existing legislation. There is no need for new legislation to address someone threatening you online. All this is covered by S5 & S10 Non Fatal Offences Against the Person Act 1997.

8 These laws need to be defeated and not passed and we need to start making some noise now if we are to ensure they are.

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DRAFT / HARMFUL AND MALICIOUS ELECTRONIC COMMUNICATIONS BILL 2015

_______________________

Bill

entitled

An Act to protect against and mitigate harm caused to individuals by all or any digital communications and to provide such individuals with a means of redress for any such offending behaviours directed at them.

Be it enacted by the Oireachtas as follows:

PART I

Preliminary and General

Short title and commencement

1. – (1) This Act may be cited as the Harmful & Malicious Electronic Communications Act 2015

(2) This Act shall comes into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes or provisions.

Interpretation

2. – (1) In this Act –

“electronic communication” includes a communication of information in the form of data, text, images or sound (or any combination of these) by means of guided or unguided electromagnetic energy, or both;

“explicit content” includes images, video or sound (or any combination of these) of a sexual or intimate nature;

“shares” includes sending, posting, distributing or publishing on the internet an electronic communication.

PART II

Offences

Harmful Electronic Communication

3. – (1) A person who, without lawful authority or reasonable excuse, intentionally or recklessly shares a harmful electronic communication shall be guilty of an offence.

(2) For the purposes of this section an electronic communication shall be considered harmful where it –

(a) incites or encourages another to commit suicide; or(b) incites or encourages another to cause serious harm to themselves; or(c) includes explicit content of the other;

and it intentionally or recklessly causes alarm, distress or harm to the other.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or to both.

Malicious Electronic Communications

4. – (1) A person who, without lawful excuse, persistently shares malicious electronic communications regarding another shall be guilty of an offence.

(2) For the purposes of this section an electronic communication shall be considered malicious where it intentionally or recklessly causes alarm, distress or harm to the other.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 12 months or to both.

PART III

Jurisdiction and Procedure

Ancillary Orders

5. – (1) If on the evidence the court is not satisfied that the person should be convicted of an offence under sections (3) or (4), the court may nevertheless make any of the following upon application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interest of justice so to order:

(a) that the person remove or delete specific electronic communication(s);(b) that the person shares an apology or correction as the court deems appropriate in the circumstances;(c) that the person shall not, for such period as the court may specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.

(5) A person who fails to comply with the terms of an order under this section shall be guilty of an offence.

(6) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €5000 or imprisonment for a term not exceeding 12 months or to both.

PUBLIC ELECTRONIC COMMUNICATIONS NETWORKS (IMPROPER USE) BILL 2015 Bill

An Act to provide for certain offences in connection with the improper use of public electronic communications networks; and to provide for related matters.

Be it enacted by the Oireachtas as follows:

Amendment of section 13 of Post Office (Amendment) Act 1951

1. The Post Office (Amendment) Act 1951 is amended in section 13, as substituted by section 4 of and Schedule 1 to the Communications Regulation (Amendment) Act 2007, by the substitution of the following section:

“Offences in connection with public electronic communications networks 13.

(1) A person who—

(a) sends or causes to be sent, by means of a public electronic communications network, a message or other matter that is grossly offensive or is indecent, obscene or menacing, or

(b) for the purpose of causing annoyance, inconvenience or needless anxiety to another— (i) sends or causes to be sent, by means of a public electronic communications network, a message that the sender knows to be false,

or (ii) persistently and without reasonable cause makes use of a public electronic communications network, is guilty of an offence.

(2) In subsection (1), ‘public electronic communications network’ means an electronic communications network (within the meaning of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. No. 333 of 2011)), that is provided wholly or mainly for the purpose of making available to members of the public, whether on payment or otherwise, electronic communications services (within the meaning of those Regulations). 3 5 10 15 20 25 30

(3) Subsection (1) does not apply to the transmission, distribution or relay of a broadcasting service, within the meaning of the Broadcasting Act 2009.

(4) A person guilty of an offence under subsection (1) is liable—

(a) on summary conviction, to a Class A fine or to imprisonment for a term not exceeding 12 months, or to both,

(b) on conviction on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both.

(5) An offence under subsection (1) is an offence under the Post Office Act 1908.

(6) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.”.

Short title 2. This Act may be cited as the Public Electronic Communications Networks (Improper Use) Act 2015.