Gerard P. Craughwell challenges ISP immunity over social media defamation

Crockwell. Thank you. Thank you, Minister. That was a fairly comprehensive series of replies. I want to talk about the social media providers, the internet provider. You say that they are merely providing a service. So I put up a tweet or I put up a post that says Joe Bloggs is corrupt and anything he ever earned was earned through corrupt means. And Joe Bloggs, not being corrupt, may have a case of defamation against me if he can identify me. And you say that the internet service provider has no liability here. They use algorithms. It strikes me that when the law of the liability that an internet service provider may or may not have had is somewhat dated now. Because nowadays the internet service providers rapidly use algorithms to further a topical issue. So you get somebody with a very well-known name, named on one of the social media platforms. The interest drives the internet service provider to use an algorithm to actually push that even further and further and further. Is it not the case, and I'm sort of in a bit of a corner here with two eminent lawyers in the room who understand these things much better than I would, but is it not the case that once the algorithm kicks in, that the internet service provider is now actually publishing the defamation, publishing defaming data without any knowledge other than the knowledge that was provided by the original person putting down the data? I've watched with interest since I moved off Twitter. Some of the stuff that's said about me, for example, has stopped. Because I'm not there to respond anymore. There's no interest anymore. It's gone. It's finished. And yet, when you look at that, there is now a G Crockwell on Twitter. And it's not me. Has the internet service provider not got a legal obligation to ensure the person that's using my name is actually me? And if somebody, this person who's now using my name, if they defame somebody? This goes back to your last point. The account may hold my name, but I'm not publishing on it. And then you have the issue of, and frequently members of this house and members of the Dáil will use members of staff to keep their social media up to date. So does that mean that they're immediately immune from whatever has been said in their name? I'm just a little confused on it at the moment. I just think we're letting off the people with the serious money to meet defamation cases and allowing the lunatics, if you want to call them that, or allowing those who want to say defamatory things, who don't have the means to compensate those they defame. It's, to me, somewhere along the line, I'm missing the trick here. So I'd be interested in your views on that. Thank you. Senator McToole, sorry. He wants to answer. Whichever. Yeah, just very briefly. Like obviously Senator Crockwell has raised issues that are going beyond what's in the defamation bill here today. I know he's very conscious of that. As I said at the outset, however, the Digital Services Act and the e-commerce directive provide what can be described as a high level of immunity to internet service providers. They are not liable for what is put on their platform. You can understand the reason for that in terms of the social media wouldn't operate if somebody had to assess it and modify it every time. This is part of the reason why a lot of traditional newspapers have stopped the comments section. Because previously, there was a liability for them in terms of their comments section, although they had some similar protections. But it does require a lot of review and respect of it. In terms of people using your name online, there may be other people, but obviously there's a mechanism for you to say that your identity has been passed off by another individual. You could contact the internet service provider yourself in respect of it. But we're struck with the law at present that says that under the Digital Services Act, the e-commerce directive, there is protections for internet service providers. In terms of the algorithms, I would have thought it was just an issue that goes to the increased circulation of the publication. It doesn't really go to the issue about liability of the publisher. Thanks. Minister, Senator MacDool has brought up a very interesting point, a number of them. Let me start with the simplest one. A long-standing tradition in the trade union movement, back in my good old days involved in trade unionism, was always resolve an issue at the lowest possible level. So actually, your bill should enable me to write to an ISP, to a service provider, and say, I believe I've been defamed on your platform. I wonder, could you give me the name and address of the individual? And only then, on a refusal, should I have to look for legal representation. And my solicitor should be the next port of action. After that, then the courts, if that's the way I have to go. But that is in favour of the ordinary individual citizen who has limited funds up against these ginormous individuals. Now, let me put something to you at the moment. Somebody sends me an email today. And it says that Joe Bloggs is a paedophile. And I say, well, everybody in South Dublin needs to know this. And I have a massive emailing list. And I send out an email saying, I have been informed that Joe Bloggs is a paedophile. And Joe Bloggs actually isn't a paedophile. He's a fine upstanding citizen. Have I defamed him? By rebroadcasting information that I am not capable of proving? Have I defamed that person? Am I liable? Similarly, I run a website. Most of us run a website. I'm sitting tonight, looking at social media, and I see something about a member of this house. And I decide, I'm going to take a screenshot of that and put it up on my website. I'm only a conduit. That's all I'm doing. I'm only putting up on my website what I saw on a social media site. Social media site is not liable. That's what you're telling us. Am I liable? Because I've just put up a screenshot of a social media post on my website. Am I liable? I want to know that. Now, we talk about the social media companies. When I sit down at my laptop, my PC, my phone, and I decide to tweet something, or to put something up on a social media site, I am transmitting. There is a transmission that takes place in bits and bytes and packets, etc., that move their way through the internet from original to source. You then sit on this evening and you look at the social media website, and because the algorithm knows you're interested in the sort of thing that I've just tweeted, it appears at the top of your list. Has the internet service provider transmitted something? Is there a transmission that has taken place which is defamatory? It's not simple to turn around and say the internet service provider is merely a conduit. They are not merely a conduit. They use sophisticated algorithms in order to rebroadcast things that they think will drive traffic to their website. So, I'm afraid you're talking about the digital act, you're talking about European directives, etc. These are all grossly outdated. Technology moves in exponential leaps at a phenomenal rate. And what you're doing is providing protection to people who are making massive profits out of the gutter of interaction between human beings. I don't believe that they are just a conduit. A conduit, you stick it up on your window, that's it, it's a conduit. If I manipulate it in some way in order to ensure that it has a greater audience, then it is no longer, I'm no longer acting as a conduit. I am now acting as a transmitter. I'm now acting as somebody who is bringing forward defamatory information, if it turns out to be defamatory. I have huge concerns at the way in which we're protecting the most wealthy of the individuals who are involved in this. The individual posting the stuff, Senator McDoulson, may not actually be aware of the fact that what they're saying is defamatory. But you can be damn sure the ISP or the service provider has a string of lawyers to provide them with advice and information. We're going to run out of time today, but I'll tell you one thing I will do. I will come in here the next day and I will go through the transmission methodology that's involved in bringing forward messages. You can't say they're not liable if they are transmitting the information. And as Senator McDoulson pointed out today, there is no border. Put something in the front page of the Irish Times of the Irish Independent. It's probably restricted to Ireland. Put it up on the internet anywhere in the world. It can be seen anywhere in the world. I'd just like to simplify things and see if there's a way that we can move things forward in a way that is justice for the individual. Because we all can't afford to run to the courts. And that's the bottom line on it. We'll see what else comes up. Thank you.