Tell the Minister for Education: NO to POD

Please join 173 other parents and families in writing to the Minister for Education to protect every school-aged child’s right to privacy and future identity security. Tell Minister O’Sullivan that the Department of Education’s plans for the new Primary Online Database (POD) should be scrapped.

Add your name, email address and any comments below and the following email will go off on your behalf to the Minister to make your voice heard.

  • Dear Minister O’Sullivan:

    I write to you regarding the Department of Education’s planned rollout of the new Primary Online Database (POD). I call on you to withdraw this system until the legitimate issues raised by parents and the wider public can be addressed:

    • It is unacceptable for your Department to gather sensitive, private data on every individual primary school child, including their racial profile, psychological assessments, special needs, religion, and PPS number, and store it until they are at least 30 years of age;
    • It is deeply worrying that school staff will be able to enter comments on any child into a system so poorly secured that the Department cannot guarantee who will be able to access them;
    • It is unrealistic to expect school staff to transfer this highly sensitive data to the Department of Education using a 17-step process so complex its been called ‘damn near unusable’;
    • When parents decline to have their children’s information unlawfully transferred to the POD database, it is outrageous to tell teachers to just go ahead and enter it anyway;
    • It is education extortion to threaten to remove funding and teacher allocations for children whose parents have made the decision not to enter their children’s details.

    The Department may not simply ignore citizen’s data protection rights and legal protections, even when those citizens are children. Please scrap this POD scheme in the best interests of every school child in Ireland.

  • Please add any other comments you would like to be included in your letter:
  • Yours Sincerely,

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Minister for Education: We will forget nothing, learn nothing

About two weeks ago, as letters started to arrive home in children’s lunchboxes, parents started raising issues with the Department of Education’s project to take children’s data (racial, psychological assessment, special needs, religion, PPS number and so on) and store it until they were 30.

Here’s the post setting out the inital issues I had with the plan.

This is a long post, but it is about the future security of children’s identity. Please read it and then take a moment to do something to change this plan.

Please, contact your school and warn them about the Data Protection breaches that they could be held liable for if they comply with the Department’s demands. Then, please contact Minister Jan O’Sullivan by email and tell her you want her to stop this project and why. Use any and all of the above points, or some of your own.

And finally, please contact the Office of the Data Protection Commissioner and let her know that you aren’t happy about the proposed creation of a slap-dash, ill considered, record of your child and you think she needs to act to stop it from happening.

Data Protection Commissioner: Not as happy as claimed

Unfortunately, the Minister has responded by denying there are any problems, saying she’d look at the retention period, then saying she’d looked at it and was sure again it was needed because the Department wanted to have ‘full maximum data’.

Minister O’Sullivan also managed to call into question independence of the new Data Protection Commissioner, by announcing “that office is satisfied with what we are doing” and “the 30th birthday is probably appropriate and it satisfies the Data Commissioner as well”.

On the face of it, the Commissioner’s regulatory role was being undermined by a Government Minister preempting the outcome of any complaint by asserting the opinion of the Commissioner before any complaint had even been ruled on.

It was reassuring to read today’s interview, therefore, with Helen Dixon, the new Data Protection Commissioner. Contrary to the Minister’s assertions earlier in the week, the Commissioner did not seem to be ‘fully satisfied’ with the Department’s plans. She said;

“it seems to be the case that there’s an inadequate explanation of why they need it and why they need to hold it for as long as they are holding it.”

(This might seem like a minor point, but in fact, in EU law, the independence of Data Protection Commissioners is considered a very Big Deal. So much so that the EU Commission has repeatedly sued member states whose Governments act to undermine that independence. After the most recent such case Commission -v- Hungary, the EU Justice Commissioner and Vice President of the Commission, Viviane Reding issued a strong warning;

The independence of national data protection authorities is the very cornerstone of guaranteeing effective data protection rights for our citizens. Lack of independence means lack of effective supervision and oversight, and a lowering of the level of data protection. The Commission has intervened three times with infringement cases against Member States to stop such incursions on the independence of data protection watchdogs. I will not hesitate to intervene again if necessary.” )

Defund your child’s education if you object

In correspondence with individual parents, the Minister’s Office and the Department have taken another tack.

The Minister is threatening to defund the education of any child whose parents object to their data being hoovered up into this database. 

Personally, I think it’s a pretty low road for the person responsible for children’s education to try to hold them to ransom for the sake of an administrative hobby horse of her Department. Here’s the Minister’s Personal Private secretary, finishing off a letter to a parent who had raised serious and detailed concerns that the entire POD database plan was illegal under Data Protection law with the most basic of coercive threats.


“If you do not consent to your child’s data being entered on POD then you should inform your school in writing that you do not wish to have your child’s information entered on POD, however from 2016/2017 this may have funding and teacher allocation implications for your school”

Similarly, when I wrote to complain, I got an even less varnished version of this threat to defund any child’s education whose parents objected to POD.

Offical's threat


Just take the data with or without consent

As if those threats weren’t objectionable enough, it turned out that the Department had come up with a fallback plan. In their FAQ to teachers, they told them that if any parent did dare to refuse to allow their children’s data to go into POD, the teachers were to ignore their data preferences and just upload it anyway.

Screw parents wishes we wanna

Retention period: Until the child is 30, and then some

Let’s go back to that retention period. It’s set out in Circular 0017/2014, which is closest thing we have to an administrative law underpinning this entire scheme. It says;

The Department will retain personal data in categories 1 and 2 for each pupil on POD for the longer of either the period up to the pupil’s 30th Birthday and subject to review thereafter or for a period of ten years since the student was last enrolled in a primary school.

As very few 20 year olds are to be found still enrolled in primary school, we can take it that the plan is to keep the data at least until the pupil is 30 and then it will be ‘subject to review thereafter’. In other words, there is no commitment to remove this data, ever.

This open-ended retention period, by the way, doesn’t meet the requirement by the Data Protection Acts for notifying the data subject how long the data will be held for or for what purpose (data subject here being parents and then, when they become adults, the pupils themselves). Certainly, any Government department whose Minister is willing to define the criteria for retention as ‘in order to ensure that we have full maximum data’ doesn’t seem like the kind of institution to wipe any data from its system voluntarily.

The Circular is also clear that all this data ‘will’, not ‘may’, be kept. This is an important point, because, under pressure from questions, the department has suggested that maybe they will think about keeping some of the data in an anonymised form after children leave school (and, more urgently, until journalists stop asking questions). But in fact, the Circular short-circuits all of that discussion.

Together, Category 1 and Category 2 data is all of the data the Department is collecting- names, PPS numbers, address, mother’s maiden name, religion, ethnicity, psychological assessments, special needs, the whole shebang- being kept until the citizen is, at the earliest, 30 years of age.

This is explicitly not anonymised or aggregated data.

Security of the data

This is going to get a little bit technical, so stick with me here. Firstly, let’s look at how schools are meant to get this spectacularly rich and sensitive dataset on the nation’s children to the Department of Education. They can fill the data in directly into the webform, which does connect with a secure HTTPS line. Unfortunately, the form won’t let them do many of the things you might expect to come up, like save an entry with only some of the required data filled in.

So, anticipating that the HTTPS option wouldn’t be too popular, the Department has come up with a plan for schools to fill in the data offline, into a Microsoft Office document, and then to encrypt that file using the same encryption system Edward Snowden used to communicate with journalists (GPG) and to then email them that encrypted file.

If you started to make a worried face in the second half of that sentence, that means you’ve probably already encountered trying to use GPG encryption. Here’s Arne Padmos, lecturer with the University of Rotterdam, giving his recent talk “Why is GPG ‘damn near unusable’?” to a group of computer security experts.

But not to worry, the Department told schools that they would produce ‘detailed instructions’ on how to use it. No training, mind, but a handy Word document they could refer to. You can read it all here. Some sample screenshots, to give you a feel for it;

Screenshots of the encryption instructions


As you can see, there is no way that this could go wrong.

Unfortunately, the Department’s focus on keeping this data encrypted in transit pays no attention to the fact that the original data file will remain unencrypted and sitting on the school computer.

Furthermore, the Department decided they would allow the POD data to be automatically copied out and synchronised with the school’s own database. So, no matter how secure the data is getting to the POD, it will then automatically, and by design, be copied out into another database that sits outside the Department’s control or audit.

This is so strange an idea, I’ll show you the bit in their documents where they chat away about it with no mention of security implications, just so you believe me.

Screenshot_2015-01-25_11_53_38So, just to keep count, the list of people with access to this data on children is now;

The Department of Education (for purposes which include statistics, but also funding of children’s education and other, non-specified uses), all the public bodies they intend to share this data with at the moment (the current non-exhaustive list is the Department of Enterprise and Employment, the Department of Social Protection, The CSO, The Child and Family Agency and, apparently, the Revenue Commissioners), everyone in any school with access to either the POD database or their own internal database and any contractors who provide the technical support for those databases.

I could go on and on, but this post is already too long to expect anyone to have reached the bottom here.

I could point out that holding a permanent record that doesn’t allow families and children to declare their ethnicity to be Black and Irish is insulting and backward. I could point out that having a free text Notes field where school staff can write anything they want about a pupil and have it stored, for reference, until that pupil is an adult active in society is a invitation for abuse. The threat of something going on a child’s Permanent Record has never been so real.

You can stop this

I think the main point is clear. This project is a mess. It must not go on as it is. But the Minister and her Department have made clear that they will not budge unless forced to do so.

So, please, contact your school and warn them about the Data Protection breaches that they could be held liable for if they comply with the Department’s demands. Then, please contact Minister Jan O’Sullivan by email and tell her you want her to stop this project and why. Use any and all of the above points, or some of your own.

And finally, please contact the Office of the Data Protection Commissioner and let her know that you aren’t happy about the proposed creation of a slap-dash, ill considered, record of your child and you think she needs to act to stop it from happening.

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Unanswered legal problems with the Government’s new database of children

Database Teddies

The Department of Education is building a database of Ireland’s children. It’s called the Primary Online Database and, currently, its intention is to collect a full profile of data on all the children in education and to store that data until they turn 30. Yes, 30.

They started last September 2014, taking data from schools directly, rather than asking parents in almost all cases. Now the department is sending home letters to parents about the database, baldly telling parents that they’re taking their child’s data.


UPDATE: See my follow-up post with lots of  the extra problems identified with the Minister’s POD plan
UPDATE 2: NEW! A simple web form to tell the Minister that this is a bad idea. Sign it and share it!

The Department is collecting data, including sensitive data such as medical information, whether the children have psychological assessments, religious and racial characteristics on children. This is something that requires careful planning to be done correctly. As the Irish Water debacle showed, an organisation can destroy public trust by careless information governance and ill-considered data demands. And any database that contains such critically sensitive data about all the citizens and residents of the state who are under 30 needs very significant and broadly based support.

This database, if leaked or misused, would compromise the identity security of every young person in the entire country. It would provide a treasure trove for blackmailers or identity thieves. It’s precisely because this sort of data is so red-hot radioactive that the Census data- the only collection comparable to this proposed datagrab- is given special legislative protections in the Statistics Act 1993.

Regrettably, it seems the Department of Education has not learned anything from the recent past. I contacted the department on the 6th January to set out some Data Protection concerns with the database. I followed this up with more than one telephone conversation. I received no written reply by the 20th January so I then made a formal complaint to the Data Protection Commissioner.

In that complaint I made the following points;

1/ Section 2(1)(c) of the Data Protection Acts (referred to hereunder as DPA) sets out the principle that data should be obtained for “one or more specified, explicit and legitimate purposes”. Children’s data was obtained from parents by their schools for specific, legitimate, internal school purposes. The Department is seeking to take that data from the school, under threat to its continued funding, and use it for different radically different purposes, none of which were specified at the time the school obtained the child’s data, or or necessary for those internal uses. This is not legitimate.

2/ In addition, the Department’s Letter to Parents states that it is the Department’s intention to store children’s data in the Primary Online Database until they reach the age of 30.

To me, this appears to be self-evidently an excessive retention period. Data may only be stored for as long as is required for the purpose for which it is collected. (per Section 2 (1)(c)(iv) DPA)

As all the purposes of this database are related to children’s primary school experiences, retention for decades after that experience ends will be a breach of the data protection acts, and contrary to Data Protection principles.

3/ I have very significant concerns about the data relating to children proposed by the Department to be obtained, processed, shared and retained until the age of 30. The material describing the contents of the POD database sets out data which is clearly sensitive personal data per the definition at Section 1 DPA.

In particular, the data fields;

Learning Support

Is the pupil in receipt of low incidence support through NCSE? (drop-down list)

Is pupil receiving support under the General Allocation Model? (drop-down list)

EAL (tick-box)
Specific Learning Disability (tick-box)
Learning Support (tick-box)
Mild/Borderline Mild GLD Resource Teaching

Does the child have a psychological or medical assessment report which recommends provision of an additional teaching resource ? (drop-down

represent sensitive personal data as it relates to “the physical or mental health or condition or sexual life of the data subject,”.

However, the Department is proceeding on the assertion that all this data is ‘non-sensitive’ data and does not require parental consent for processing.

Furthermore, the database includes a free text “Notes” tab.

“Notes about a pupil may be entered into the ‘Notes’ tab. At present, notes entered here can be seen by Department of Education staff”

(per P 10 of the Instruction Manual on the POD. The existence of this data field is not notified to parents in any notice addressed to them. )

There is no way for this data to be obtained or retained in compliance with the DPA, as there is no description or limits on what notes may be added to each child’s entry into the database- whether sensitive, relevant, necessary or appropriate. Whether the data is routinely accessed by the Department is irrelevant as it is being retained by the Dept and is accessible to any departmental user with Administrator status.

Furthermore it is not unknown for children to change schools precisely to obtain a fresh start, and it is unsatisfactory that the unlimited and unmonitored notes by staff of one institution would be transferred to the new school, colouring that school’s opinion of the child before they had even started.

4/ The Department of Education’s use case statement which may be accessed on the Department of Social Protections own website does not include the proposed use of children’s PPSNs as described in the Department’s letter to parents regarding this database.

From the records available to me, the proposed use case the Department’s letter describes has not been notified to the Department of Social Welfare and, therefore, has not been agreed with the Minister, as required under S 262(4) and Sec 262(6) of the Social Welfare Consolidation Act 2005.

In the absence of such consent a child’s school would be in breach of the data protection acts were they to transfer his or her PPSN data to the Department as a new Data Controller.

5/ I note that by letter dated 15th January the Minister for Education’s private secretary wrote to parents who have complained about this database and told them that;

“If you do not consent to your child’s data being entered on POD then you should inform your school in writing that you do not wish to have your child’s information entered on POD, however from 2016/2017 this may have funding and teacher allocation implications for your school going forward”

This threat effectively negates any consent that might be given, as it is clearly represents a coercive effort to force consent in the face of the defunding of their child’s education. In addition, the threat to partially defund a school on the basis of purely automatic processing of data in a database it represents a breach of
Section 6B of the DPA,

“a decision which produces legal effects concerning a data subject or otherwise significantly affects a data subject may not be based solely on processing by automatic means of personal data in respect of which he or she is the data subject and which is intended to evaluate certain personal matters relating to him”

To read more about how this database is being implemented in a way to undermine trust and effectiveness, take a look at data protection expert Daragh O’Brien’s two posts on the subject, here and here. Those posts give context to this ill-conceived project, by showing how and why the State consistently fails to respect citizens’ data rights.

If you agree with my points, please do contact your child’s school and let them know that you don’t give consent to your child’s data being entered onto POD, and let the Minister for Education, Jan O’Sullivan TD know your concerns about her plan by email and/or make a complaint to the Data Protection Commissioner’s office (details here) if you have no satisfactory outcome from your contacts.

Photo: Database Teddies by Linda Hartley

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Private phone messaging apps compared

Recently, for reasons, I had occasion to examine the current state of the market for encrypted messaging apps on phones.

Tested: Wickr, BBM, Threema, Confide, Cyber Dust, Cyphr, Telegram. Thoughts to follow:

-All of these apps start off wanting access to your contacts. You should always say no and invite the people you do want to communicate with manually.
-I have no way to check the cryptographic reliability of any of the below apps. So, one could be a pleasure to use and be using a joke of encryption. In addition, if your life depends on security, please don’t use a phone at all to pass messages. Buyer beware. )

Wickr: Hysterical intro copy. Stunningly ugly. Nuttily tricky to set up. Seems to work.

BBM: Amazingly, even more ugly design than Wickr. Appears to hate users, and does everything it can to stop them. On android: don’t install. Over-reach on permissions, including your call & text history, demands for your location etc. Blackberry, you are a zombie.

Threema: A bit fiddly to set up, quite like whatsapp once you’ve succeeded. Has a nice face to face verification thing too.

Confide: Text only, unlike the others. Only reveals one word at a time, so can’t be screen shot. If you want to send a private private text made of just text, seems like a good bet. Update: Neither I nor my Android co-tester actually received each other’s messages. Though very secure, this is not very useful.

Cyber dust: a much better interface than most of the others. You don’t get an archive or record of your conversations- they vanish from your screen after a few minutes. You can keep your own messages, if you like, by tapping on them, but you can’t keep the other people’s.

Cyphr: Easy set up, easy use. Uses a central server. Makes saving pictures you’ve received very easy, which could be a pro or a con depending on how you want to use it.

Telegram: similar to Threema in set up, slightly cleaner design. Seems to have the larger installed user base.

This is important, because the major barrier to adoption of encrypted apps or messaging is that both sides need to agree to use a particular, non-mainstream, programme to communicate.

This is why the suggestion that Whatsapp, with its tens of millions of users, may encrypt all its messages from end to end is so significant.

My criteria was that the app had to offer to encrypt text (and, ideally, any videos or pictures uploaded) and not store a hackable copy on servers (as Snapchat allowed happen to its users).

Let me know if I’ve missed an option

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Thoughts on Ireland’s new Surveillance Order

Some tiny Saturday thoughts on today’s Page 1 scoop by Karlin Lillington re the state’s creation of a new statutory framework for secret Ministerial surveillance orders and, quite seriously, for FISA-style secret court hearings.

1) The Minister has activated a law that has been overtaken by events.

2) The Department of Justice has claimed the SI was signed to comply with EU treaty obligations.

3) But since 2008, when the law was drafted, EU law has been transformed in its approach to privacy, surveillance and rights.

4) Since then, the EU Charter of Fundamental Rights, DRI’s ECJ judgement and even the Google Right To Be Forgotten case mean that the balance struck between privacy and surveillance in the 2008 Act is no longer an obviously lawful approach.

5) Far from complying with EU Treaty obligations, the State may have exposed itself to a challenge under those same Treaties.

6) The 2008 Act should be rewritten to allow for orderly Mutual Legal Assistance Treaty co-operation, but maintaining EU citizens’ privacy and data rights.

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Have Uber delete their records of you using Data Protection law

Basically, post this letter, adding your own details or messages to it, of course.
In 40 days or less your records should be unavailable for any opposition research, employee God View or any other unhappy use.

You should also be able to email it to Uber Ireland, if you can find their email (which I couldn’t)


>>Your Name< <
>>Your Address< <

The Data Protection Officer
Uber Ireland Technologies Limited
T/a Uber
2 Pembroke House
28-32 Upper Pembroke Street
Dublin 2

Re: Data Access Request from >>Your Name< <
DOB: >>Your Date of Birth< <

Dear Sirs,

I confirm that I have deleted the Uber app from my phone and will not be using your service again. The email address under which my account was registered is ____________.

Under section 2 of the Data Protection Acts 1988 and 2003 it is no longer proportionate or necessary to store any personal data relating to me.

Please confirm that my account, financial and contact details as well as all details of all journeys taken by me or using my account through your service -other than this letter, have been deleted. Per section 6 of the Data Protection Acts, I await confirmation That this data has been destroyed in not less than 40 days from the data of this letter.

Yours faithfully,

>>Your Name<<

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Water and Power

CC by Airwolfhound

Two kinds of protest floating in my head tonight. The first, the Irish Water protests. The second, the complaints about the fluoridation of drinking water.

Despite appearing to both involve water, before today, I wouldn’t have said they had any shared root cause.

The Irish Water protest is a decentralised, grand coalition between people who believe a flat tax is a regressive social policy, those who resent the staggering arrogance and incompetence of Irish Water’s establishment and those who just don’t have any money spare to pay another tax, as well as all the personal variations outside those artificially defined positions.

Despite the strenuous efforts to claim, or ascribe, leadership by any pre-existing mainstream political group, the Irish Water protests have no single voice. There is no Chief Whip, no party line. The protests mean as many things as there are people participating. However, each side in this argument attempts to defeat the other with strength of their evidence – by presenting a case based on facts.

On the other hand, the people complaining about fluoride being added to our water to help with dental health are actively hostile to arguments based on facts.

(I am going to try to discuss something else entirely here, rather than try to assess the merits of any given position. But I should say that I think that complaining about something as beneficial as fluoride in our water is as far removed from a rational position as a person can go without actually advocating for demons to be given voting rights)

But after chewing in a ruminant fashion on an Aldi Stollen Bite this afternoon, I suddenly realised what the common element to both sets of protests was.

They exist because Fianna Fáil has collapsed.

Fianna Fáil, for decades, held the central position in the Irish political culture. As I have argued in the past, it functioned primarily as a patronage machine.

A patronage system is, by definition, unconcerned with the force of anyone’s argument or the facts they may have to show they are right. A patronage machine cares about who you are, whether you are inside or outside the patronage system, what you’ve done for the patronage machine and what you might yet do for it in the future.

For the people who might have expected to be beneficiaries of that machine, its sudden collapse represents a bitter blow to their conception of how things do, and ought to, work. Rows about fluoride are proxy battles for cultural resistance and resentment to the making of non-subjective evidence the basis for policy making.

But for all the people who were excluded from decision making- excluded from even the conversation about what was possible- the implosion of the Fianna Fáil patronage system has opened up a new political stage. One where matters are not already fixed before they reach the public gaze and where questioning, with hard evidence, can actually mean the answers can be changed.

Self-organised, decentralised political movements were once the stuff of science fiction and political theory. Now, the phones in people’s pockets give everyone the chance to voice, bear witness, organise and persuade.

Those phones are totems of fear for the traditional political/media establishment. And for the same reason they’re symbols of power for the people holding them. It’s why Joan Burton went out of her way to complain about protesters’ smartphones in the Dáil and why those complaints were so frequently referred to in the 1st mass anti-Irish Water march.

Both sides recognised the phones represent a rival power source.

So far, nobody has seen that power express itself fully. It may yet promote an appeal to the irrational. The fluoride flap is only a shadow of the problems that might throw up. But, for good or ill, it is now loose and it’s only a matter of time before it upturns the shell of the political system that died in 2011.

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Apple Watch, HealthKit & the meaning of normal

Underwhelming as copy for a watch

A tiny thought about the Apple Watch and HealthKit. Long term, the flood of additional data on the general population’s state of health and range of daily behaviour will be of benefit.

The problem is going to come with gauging exactly when we’ve reached that ‘long term’.

Let me take an example. I have no medical qualifications, obviously, but my job does involve speaking to medical consultants more often than most. One, a neurosurgeon, told me that the model of what was normal for a brain in the general population has broadened considerably in the few years since MRI cranial scans became widespread.

He described what happened when an MRI scanning machine arrived at a UK hospital where he was working. For calibration purposes, it needed a largish number of people without brain disorders to volunteer to be scanned.

These turned out to be (a) bored members of the public or (b) medical students.

All were healthy and normal. A statistically significant number turned out to have brain abnormalities, with the abnormalities more common in the medical students than in the general public.

I anticipate the Apple Watch and HealthKit data to initially demonstrate a similar wider range of ‘normal’ in human health matters than is currently recognised.

But until then, doctors are going to have to dig themselves out from the mountains of data that will fall on them and the current models in order to have a chance to to assess what it actually means for the person in front of them.

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The BAI, Mooney and the struggle to control the Internet

A few weeks ago the Broadcasting Authority of Ireland issued a decision in response to a complaint by Mr. Dónal O’Sullivan-Latchford on behalf of the Family and Media Association. He had complained about an episode of the Mooney Show on RTE Radio One which had featured a discussion with a gay man about his life and relationships, together with a member of GLEN who explained the current legal choices for gay people in relationships.

The complainant claims that same-sex marriage is supposed to be the matter of debate in an upcoming referendum.

The whole show was, as you’d expect of the Mooney show, not exactly trying to take the Paxman-interrogation approach. It was people talking about their own lives.

Well, the upshot was the BAI upheld the complaint on the grounds of a lack of ‘balance’.

discussion of same-sex marriage constituted current affairs content on an issue that was of current public debate and controversy. While agreeing that a referendum campaign is not currently underway, as a matter of current affairs, the general requirements for fairness, objectivity and impartiality in current affairs set down in the Broadcasting Act and the BAI’s code on news and current affairs were applicable.

This is, as you will have realised yourself by now, an absurd decision. It creates a brand new category of restricted discussions, separate and in addition to the already existing pre-referenda campaign broadcasting limitations. Now, just having a conversation about your life can be inherently controversial- if you’re gay, or presumably, have had an abortion, are 17 and want the vote, or have had first hand experience of anything that is an ‘issue of current public debate’.

The BAI decision hasn’t exactly been seen as its finest hour.

Ireland’s answer to The Onion, Waterford Whispers News reacted with the headline “Gay Couples Not Allowed Appear On Radio Without A Bigot, Rules BAI“.

Even the NUJ were stung into objecting to the impossible position its members were being forced into, complaining that the BAI

effectively seeks to ensure that discussions take place in an adversarial environment, with programme makers forced to find alternative spokespersons to preserve the concept of “balance” normally associated with electoral and referendum coverage.

So it was welcome news that BAI member, and NUJ member, Prof Colum Kenny of DCU’s journalism school has engaged with the critics and issued a defence of the BAI’s Mooney Show decision. Welcome, because it acknowledges that regulators- and particularly regulators tasked with protecting freedom of expression above all other rights- should be part of the conversation about their decisions.

Unfortunately, it’s not a very persuasive defence. You can read it in full here. You can also listen to an audio discussion from the Irish Times (not regulated by the BAI) between Prof. Kenny and the NUJ’s Seamus Dooley on the same lines.

Primarily, Prof. Kenny wants to deny that this Mooney decision is a new departure. If it isn’t new, it isn’t news you see and then everyone has to stop talking about it by the rules of media. He goes so far as to claim that the law the BAI were applying has been the same for fifty years, which is quite a feat, given the Broadcasting Act only dates from 2009.

In fact, assuming that alternative views are voiced, any member of the NUJ involved in broadcasting should know that this has been required ever since RTE was founded more than half a century ago. Guidelines that RTE and other broadcasters issue to their employees have long cited that law (most recently enshrined in S.39 of the Broadcasting Act 2009).

The thing is, if we look at Section 39, which the Professor explicitly cites as the law the BAI were applying, it doesn’t accord with the BAI’s insistance on having somebody in the corner, blowing raspberries over tales of personal happiness. S39 doesn’t require that every show become a sterile, falsely equivalent debate.

(b) the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his or her own views, except that should it prove impracticable in relation to a single broadcast to apply this paragraph, two or more related broadcasts may be considered as a whole, if the broadcasts are transmitted within a reasonable period of each other,

So if, let’s say, three gay men were discussing civil partnerships with one talking about their lives it might be “impractical” to shoehorn in a dissenting voice. S39 doesn’t need it to be done. But the BAI, apparently, does. In fact, they subsequently circulated a memo to all their regulated broadcasters emphasising that marriage equality was an inherently controversial topic.

Prof. Kenny also complains, more than once, that the NUJ didn’t withdraw their statement when he asked them to. We’ll come back to that in a minute. But for the time being, let’s just think about the implications of an academic and broadcasting regulator who wishes people would unsay things he doesn’t agree with.

Of course, the regular reader of this blog (and even using the singular is probably a bit optimistic) will know calling on S39 of the Broadcasting Act for your moral support is a pretty desperate place to find yourself. This is the same section that treats “causing offence” on the airwaves as being as dangerous as “undermining the authority of the state”.

However, all of this is really a proxy for the big struggle to come. The Irish Times podcast ends with both the NUJ’s Seamus Dooley and Prof Kenny agreeing that somebody must regulate the internet so that it can be brought into line.

This is the next big fight. If the Internet is to be regulated, is it to be by the BAI? Or is it to be by the Irish Press Council? RTE is regulated by the BAI, but they don’t regulate RTE’s internet output. The Journal, which is an internet only publication, voted to join the press council. The Irish Press Ombudsman has previously asserted a right to regulate the Internet activities of its members (See Journal Media Limited and the Irish Daily Mirror, which ended up deciding on a complaint about a tweet). This Mooney show decision is unlikely to have aided the BAI’s argument that its remit should be extended to the digital world.

However the Press Council, which relies on a principles-based code of conduct, has a glaring regulatory gap. Complaints can only be lodged by a person directly effected by a story. So, if you open your broadsheet and read a completely fictitious tale about a terrible thing that (never) happened to a (non-existent) person it is completely immune from the Press Council’s regulatory oversight because nobody was directly effected. Hardly the sort of thing to bring trustworthy reporting to the internet.

All of which is to long-windedly agree with Hugh Linehan’s tweet. All media regulation in Ireland is suffering from a crisis of legitimacy, arising from their respective flawed legal foundations. Without a broadly based acceptance of their legitimacy, the proposal to give any of the existing regulation bodies power over the internet- or to apply any of the existing manifestly flawed rules to the country’s only (spectacularly) diverse media platform- should continue to go nowhere.

Beyond all that is the question of whether seeking to control, suppress and restrict discussion of people’s lives has really served Ireland well over the Professor’s fifty years of regulation. It’s telling this is such a radical suggestions that you only really encounter it on the unregulated internet but perhaps, just maybe, we could try letting the audience decide where they want to put their trust. Perhaps, if only in this obscure corner of the media landscape, we could let people actually have that ‘current debate’ that S39 finds so worrying and be glad that there is somewhere that the expression of our ‘own views’ isn’t a forbidden activity.

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Why I’m not a Progressive

The Myth of ProgressI struggled with the title for this post. What I really wanted to call it was “You are not a Progressive”. I’ve compromised on this impulse to tell people that their beliefs are just wrong.

But you can’t be a Progressive, in the current political sense of the word, because there is no such thing as historical Progress. Progress is a journey, travelling towards a predetermined destination. But things do not gradually get better over time, moving towards a pre-destined better place. History is one damn thing after another until extinction. There is no reason to it. It does not have a shape. It doesn’t travel on rails, with the odd hesitation. Either things get better for people, or they get worse or they stay the same. But if they get better, that isn’t a step forward on a well mapped path along which we are Progressing. It’s the result of one set of social pressures and circumstances, sometimes planned and sometimes not, bringing about a change which can- as soon as opposing forces gather themselves to assault that change- be reversed or kept. The NHS in the UK wasn’t a result of Progress. It was a revolution. And it is always at risk from a counterrevolution. It had a beginning and just as certainly, it will have an end.

The outlawing of the slave trade was a moral triumph by UK abolitionists. If they hadn’t done all the things required to build that political change, it wouldn’t have changed by itself. There was no inevitability, no arrow of history, that would have ended the profitable activity of trading in humans without their intervention, or the intervention of another comparable group of people. Votes for women, labour laws, weekends, health systems, human rights- all social improvements, none of them inevitable, all of them fought for, all of them always at risk of reverse.

I am all in favour of efforts to make things better for as many people as possible. It devalues those efforts if they’re simply taken for granted as the invisible hand of progress. And it lulls us all into a false sense of security if we think that, once achieved, a material social improvement can just be banked.

There’s no such thing as progress. It’s much harder than that.

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