I welcome the Minister to the House. We will resume on amendment No. 20 to section 22 and I believe Senator McDowell has the floor.

On the last occasion, I moved a number of things and the Minister was to reply to some of them.

It is my view that section 22, which we are discussing at present, is probably the most consequential and important provision in the Bill. The reason I say that is because it is predominantly the case at present that people in Ireland who are defamed are defamed on an online basis. They find themselves being subject to very serious defamatory publications that are made in circumstances where the identity of the publisher is unknown. Therefore, it is important that, as an Oireachtas, we try to put in place a statutory mechanism that enables a person who is the victim of such a defamation to be able to identify who it is that is the publisher that has made defamatory stations statements about the person concerned.

At present, the procedure that operates is that if I am defamed on social media and it is defamation through what we would refer to as an anonymous or unidentified account, in order for me to do anything about it I have to bring an application to the High Court to seek an order from the Internet service provider so that it will provide me with details as to the identity of the individual behind the particular publication. Once I get that information, by way of going to the court, I can then institute proceedings for defamation against the now identified publisher. It is a procedure that operates in the High Court. In this provision in section 22 I have sought to ensure that within the Act, there will now be a simpler, and obviously cheaper, statutory mechanism available that can be pursued in the Circuit Court. The benefits of pursuing such an application in the Circuit Court are, in the first instance, that it will be cheaper. Second, it should be faster because the Circuit Court operates issues on a more speedy basis.

Last week, a number of Senators made some very interesting points about online defamation. If I may, I will briefly respond to them. It is important for the purposes of understanding this issue that we are aware of the differences between online defamation and how it can be pursued and defamation through the more orthodox mechanisms. Obviously, if an individual defames another individual and that is done in the public sphere and the person is identifiable, one can institute proceedings against that individual for defamation. If, as is more common, an individual is defamed through what we would refer to as the traditional media, there is a mechanism available to the person who is the subject of the defamation to bring a claim against the traditional media provider, whether a newspaper or broadcaster. It is also worth pointing out that if somebody is quoted in a newspaper or something is broadcast by a broadcaster making defamatory comments about another individual, it is open to the individual so defamed to institute proceedings against the traditional media provider and the individual who made the defamatory comment.

There may be consequences for the person initiating the claim under the Civil Liability Act if they do not sue both. In most instances, however, if an individual is defined by a newspaper or broadcaster, they sue the broadcaster or newspaper. The reason for that is because in law the newspaper or broadcaster is held liable for publications that they make in their newspaper or which happen through their broadcasting mechanism. If somebody says something in a newspaper – this of course is separate to any statutory defences that are available – a newspaper can be held liable. If a newspaper article publishes something false about an individual, the individual can sue the newspaper.

The law in respect of online Internet service providers is different. It may be the case that Senators and other individuals in Irish politics and elsewhere believe the law should not be different but I have to deal with what the law is. The law is different in a material respect if somebody is defamed online. The reason for this is because of the e-commerce directive and the more recent Digital Services Act. The latter piece of legislation, which is an EU regulation, has a section that deals with the liability of providers of intermediary services. This is how online service providers are described in the legislation. In effect, they are designated in the Digital Services Act as being what is referred to as mere conduits. They are people who are designated in law as merely passing on information. This is provided for in Article 4 of the Digital Services Act. Similarly, there is also a reference to them hosting information that is put online by individuals who are the immediate publishers of it. There is a significant difference between the liability of Internet service providers and a traditional media provider. Many people may object to this and say it is wrong but this is what the law is. It is law that has been transposed, and will need to be transposed, on the basis of the Digital Services Act. This is the way it applies.

However, if somebody is defamed online, a serious defamation is put up, the individual defamed contacts the Internet service provider, tells it they are being defamed and puts it on notice they are being defamed, it may be the case there will be a liability on the Internet service provider because it has been informed and it has been advised of the fact the information is false. This, however, is the only circumstance in which an Internet service provider is going to be held liable for defamation. There were previous examples in the UK where this was invoked. A decision of one of the superior courts in the UK referred to it as being like writing or graffiti on a wall. If I own a wall, or if there is a wall on my house, and it says on it that Senator X is corrupt, if this is brought to my attention and I leave it up there and do not take any steps to remove it, even if I did not write it, I can then become liable in terms of the publication of it.

It is important to make this statement in respect of the different laws that apply in respect of the liability of Internet service providers and the liability that applies in respect of the traditional media. I am fully aware that many in the traditional media may think it is unfair that Internet service providers have this defence that they are mere conduits but it is the law. There is a difference between what is practically achievable where there is a newspaper or broadcaster making a conscious decision to publish information and an Internet service provider that probably has very little immediate control over what is put up there.

I will now deal with the amendments tabled by Senator McDowell. Amendment No. 20 seeks to amend what would be the new section 45 by stating there will be jurisdiction not only in the Circuit Court but also in the High Court. My response to this is that it is important to note the common law power that exists in the High Court to make Norwich Pharmacal orders will continue. This will remain in the High Court. What I did not want to do was find myself in a situation where there was going to be a statutory power in the High Court provided for in the legislation and, at the same time, there would also be a common law power to make orders pursuant to Norwich Pharmacal. It is important to point out that section 45 has no impact on the existing powers of the High Court to grant identification orders by way of Norwich Pharmacal orders. It is an equitable remedy and its application is not limited to cases of alleged defamation. It will still be possible for parties to seek an identification order in the High Court should they wish to do so.

Consideration was also given to providing statutory jurisdiction to the High Court, as has been suggested by Senator McDowell, but it was felt this would be unnecessary given the High Court's existing powers in that it has this power already. Further, it was felt that confusion might arise if the High Court had two jurisdictions for carrying out the same function, one equitable and one statutory, and that this could add to the complexity of applications for such orders. It would also create a situation where distinction was drawn in the High Court between cases seeking an identification order based on whether they concerned a defamatory statement or any other category of wrongdoing. The point being made is that if it was the case the statutory provision was going to be extended to the High Court, it would only apply in respect of defamation actions. There are still many Norwich Pharmacal orders that apply in the High Court which are not in respect of defamation actions. In a way, we would have too many parallel jurisdictions if I extended the statutory power to the High Court. Regrettably, therefore, I do not propose to accept Senator McDowell's amendment No. 20.

Senator McDowell's next amendment is amendment No. 21. This is in respect of subsection (3)(b). It replicates a previous amendment proposed in respect of the Bill by Senator McDowell, which was that we would have to have a serious defamation test. What Senator McDowell proposes is that such an identification order would only arise where there is a claim by the applicant in any defamation proceedings against an anonymous publisher that the statement is seriously defamatory. I have defined it as a statement that is defamatory and Senator McDowell wants to change this to it being seriously defamatory. As I stated previously, my concern with the introduction of a serious harm test is that, rather than making the system more efficient, it would result in it becoming more protracted and more costly. If we are going to have a situation where a Circuit Court judge on an interlocutory basis or, I suppose, a preliminary application basis has to determine whether the defamation is serious, it will add a different level of test.

Since it is not within the body of the legislation that a defamatory statement has to be seriously defamatory, it seems it would be completely inconsistent if this section stated an identification order could only be granted if it was established the statement was seriously defamatory. Had Senator McDowell's earlier amendment passed, I could see the logic of this, but in light of the fact that it was rejected, it would create confusion and it would be inappropriate if this provision was agreed to. In circumstances where the amendments seeking to introduce a serious harm test have not been accepted, this amendment would see an applicant needing to establish a higher level of harm to succeed in an application for discovery against a third party. Unfortunately, I cannot accept amendment No. 21.

Amendments Nos. 22 and 23 concern the requirement set out in the proposed new legislation that an identification order would only be granted if there was no other practicable means of obtaining relevant information. I will start by stating in response to this that people should only be going to court if it is absolutely necessary to do so. Because of this, it is appropriate that we would have a provision in this statutory test for an identification order. The order should only be granted if there is no other practical means of obtaining the relevant information. If people have another means of obtaining the information, they should not be going to court. In such circumstances it is unnecessary for them to go to court.

In many respects this mirrors the procedure in place for the discovery of documents in proceedings. People looking for inter partes discovery or non-party discovery are granted an order for this discovery by the court only if they can convince the court that the discovery is necessary. Similarly, when people go to court looking for an identification order, if there is another mechanism they can simply avail of to find out who is the publisher of the information online or if it is available to them otherwise, then they should not seek to invoke the jurisdiction of the court. It is important that a party who has been the subject of an anonymous defamatory statement can have recourse to the courts to assist in vindicating their right to a good name. However, this should only happen where it is necessary, and it is not necessary where there is another practicable means of obtaining the information.

It is important we recognise that identification orders are sought and granted on an exceptional basis. I do not want to see a situation or statutory provision created where people can haphazardly seek to go down the route of going to court and seeking an identification order if they do not need to go down that route. The whole architecture of civil law should be that we should only be providing a mechanism for people to go to court when there is no other mechanism available. Identification orders are necessary in some cases but they should only be available where necessary and not where it is practicable to obtain the information by other means. My understanding is the word "practicable" will be given its ordinary meaning when this condition is being considered by the courts. It is appropriate the Legislature provide such an indication to the courts, which will be in a position to determine what is practicable based on the circumstances of individual cases. Regrettably, therefore, I cannot amendments Nos. 22 and 23 from Senator McDowell.

Amendment No. 24 is proposing an amendment to subsection (4) of what will be the new section 45. At present, the provision I have sought to introduce is that a court may make an identification order only where it considers that a series of tests have been complied with. Senator McDowell wants to change that so that it reads a court "shall" make an identification order. We have to be very careful about introducing mandatory obligations upon a court. We would have to be very certain that a mandatory obligation was required in what is at present a discretionary remedy. If you go to the High Court seeking a Norwich Pharmacal order in respect of a defamation case, there is not a mandatory obligation on the court to provide it. It is a discretionary equitable remedy and it is preferable in the statutory framework if we continue with the test that a court shall exercise its discretion in terms of determining whether to grant an identification order or not.

Subsection (4), which is the one Senator McDowell seeks to amend, provides that where the conditions of subsection (3) are satisfied, a court may make an identification order only where it considers it is in the interest of justice and that the interests favouring disclosure outweigh the interests against disclosure. Again, this reflects the case law on identification orders, which notes there is a broad consensus that certain threshold conditions must be satisfied but that even where those conditions are satisfied, identification orders are not available as of right and are a matter for judicial discretion. Subsection (4) also provides that, in making an identification order, a court may attach conditions to the order. In other words, subsection (4) leaves it to the discretion of the court to determine whether an identification order should be granted but at the same time seeks to provide guidance to the court when exercising that discretion to ensure the making of identification orders is proportionate and considers the rights of all impacted parties.

My understanding from looking at Senator McDowell’s amendment No. 24 is it would remove the court's discretion and instead require the court to grant identification orders where the conditions in that section were satisfied. That should be for the courts to determine rather than the Oireachtas directing them that they must do it. Obviously, it will depend on the individual circumstances of the case as to whether it is appropriate to grant an identification order. It should not be a mandatory obligation on a court to provide it. I understand Senator McDowell’s concern is to ensure identification orders are granted in appropriate cases. However, that does not require removing the discretion provided to the courts and replacing it with a mandatory provision. We entrust the Judiciary to defend rights and provide access to justice and it is the courts that will be aware of the individual circumstances of cases, so it is appropriate that the courts retain discretion in this matter.

I also noted what Senator Mullen said on the previous occasion that were this amendment to be accepted, subsection (4) may be interpreted as having a limiting impact on the jurisdiction conferred by the new section 45. I note Senator McDowell’s intention but agree that there is a risk the wording might be interpreted as requiring a stricter application of the conditions than is intended, so I cannot accept amendment No. 24.

Amendment No. 25 seeks to remove subparagraphs (i) and (ii) from paragraph (b) of subsection (4). These are the provisions that say that, when making the order, the court can make the order setting out terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher. This is an important statutory provision but what I do not want to see happening is individuals or entities using the identification order procedure for the purpose of just securing information that they are then not going to use for the purpose of a defamation action. I can envisage a situation where somebody wants to find out who the person who has been defaming them online is. They find out that information through an identification order. They then decide that rather than issuing defamation proceedings, they will target that individual online through social media or use this information for another purpose - lawful, no doubt – like trying to damage the interests of the online publisher. When we are setting out a statutory provision to enable an identification order, we need to be absolutely clear the only reason we are providing that statutory mechanism is to enable an individual to access justice through the courts. It is not for any other non-court reason. That is why I am concerned about removing the subparagraphs via amendment No. 25.

Subparagraph (ii) says there will be “an undertaking by the applicants not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher”. In many respects, this is similar to the implied undertaking that exists when somebody is granted access to documents by way of a discovery or disclosure order. You are only entitled to use those documents for the purpose of the litigation. If somebody obtains documents pursuant to a discovery order in civil proceedings, they cannot then decide to use those documents for the purpose of damaging the individual who disclosed them or another individual in the public realm. Those documents can only be used for the purpose of the proceedings and that is why it is important that subparagraphs (i) and (ii) be kept within subsection (4)(b). For that reason, I regret I cannot accept the proposed amendment.

In response to what Senator McDowell said previously, I emphasise that subsection (4)(b) provides that the court may make an order subject to such conditions as it considers appropriate and they may include what is in subparagraphs (i) and (ii). It allows the court to consider the circumstances of an individual case so that if, as Senator McDowell mentioned, proceedings for malicious falsehood are also contemplated by an applicant, this can be reflected in the conditions attached to the order. Regrettably, I cannot accept amendment No. 25.

A very powerful discussion emanated from Senators at the last debate on amendment No. 26. This is the provision that provides that when an identification order is made by the court, the court may, whether or not it has made an identification order and whether it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediary service provider. I think it is accurate to describe this as irritating Senators who believed this was going to be unfair and that these large Internet service providers, which have vast amounts of money, could find themselves getting an order for costs against an individual who has been defamed on one of their platforms. When we are discussing the principle of these issues, we need to not take into account the identity or the relevant status of the individuals or entities that may be concerned. We need to look at this from a point of principle. The point of principle here is that an individual in law does not have liability for the publication. That is the law as set out the Digital Services Act and e-commerce directive. An entity that does not have any liability for the publication is being asked to provide information to an affected party so that the affected party may institute proceedings against a third party. That is something we have in other aspects of our civil law.

We have many times in civil procedure seen examples of parties to litigation seeking what is referred to as non-party discovery from a party that is not a party to the litigation. In many instances, two parties could be suing each other and they look, for instance, for non-party discovery against a bank or another individual or corporate entity. Those individuals, entities or banks have no responsibility for the litigation. They are not being sued and they are not party to it but they find themselves caught up in it because they may have relevant information in respect of the issues in dispute in the proceedings.

Similarly, on a point of principle, the Internet service provider does not have a liability for the publication. It may have a liability, as I said earlier, if it is the case that it has been informed of it and has not taken it down, but in principle, it does not have a liability for the publication. An application is being made in court to get it to provide information. It is understandable why it would want a court order to provide that information. In practice, however, and this happens already when it comes to Norwich Pharmacal orders, what may happen is that courts will either reserve the question of the non-party’s cost to a future date - the determination of the action - or alternatively, if they are granted their costs, a court may put a stay on the order for costs until the conclusion of the proceedings. It is strongly likely that at the end of the proceedings, if the plaintiff has succeeded in his or her claim against the actual publisher, the costs of the Internet service provider will be held to be the liability of the publisher who has been held liable.

What is contained within this subsection (5) reflects the position adopted by the superior courts in the case law on identification orders at present, when they are done through the Norwich Pharmacal procedure. The view of the courts is that cases for identification orders are similar to non-party discovery applications, where it is appropriate to expect the person seeking information to cover the costs of the party providing the information, unless there are particular circumstances justifying a departure from that approach. The courts in those cases have also recognised that it is generally not possible for Internet service providers to provide identifying information without a court order, and that it is legitimate for a respondent to an application for an identification order to have those orders thrashed out, and to have their costs covered, even where they unsuccessfully but in good faith object to the making of an identification order.

I know that may come as a surprise and an annoyance to Senators, but I ask them to consider it as a point of principle. What the amendment seeks to do is change the wording to: “The court may order that the relevant internet service provider pay any or all of the applicant’s costs”. What Senator McDowell is seeking to do is direct that the Internet service provider may pay the costs of the applicant in bringing the application. That would be a significant change to what happens in civil proceedings at present. We are seeking, under Senator McDowell's amendment, that a party that is not liable in proceedings, and not a party to the proceedings, may have to pay the costs. We all accept that in order for that information to be given, they need a court order. That is why I am putting in the statutory mechanism for the Circuit Court. They need a court order. If they comply with the court order, and there are costs associated with that, there will be a liability for those costs. I can hopefully give Senators some solace by pointing out that, at the end of the process, the publisher who is held liable will be the entity that, ultimately, has to pay the costs for the identification order being sought. Regrettably, therefore, I cannot accept amendment No. 26.

Amendment No. 26 would also delete the existing subsection (5) and replace it with one that provides that the intermediary service provider could be considered liable for the applicant's costs. This amendment could be interpreted as allowing costs in any case where an applicant obtains an identification order. I understand that costs normally follow the event in court proceedings, but this is not a normal adversarial court case. This is a case where a service provider, who is not a party, is being asked to disclose the personal data of one of its users. Whether that disclosure is appropriate involves a weighing up of the rights of the parties, and a determination as to whether the applicant's claim for defamation is likely to succeed. It is appropriate that such an exercise would be carried out by a court. It would be difficult, in my view, to think of a scenario where it would be reasonable to expect a service provider to make such an assessment and to fix it with the costs of an identification order application for failing to do so.

It is also important that Internet service providers engage fully with applications for identification orders because there are some cases where, as Senator McDowell acknowledged, identifying an anonymous service user may expose that user to significant adverse consequences. It is, therefore, not desirable, in my view, that we might have a scenario where Internet service providers limit their engagement with applications for identification orders because they may be fixed not only with their own costs for appearing at the proceedings, but also with those of the applicant. There may also be potential legal risks with such an approach. I understand that EU law - I specifically mentioned the Digital Services Act and the e-commerce directive - limits the liability of intermediary service providers in relation to the actions of their service users for information transmitted, cached or hosted by them, subject to certain conditions. The subsection as presently drafted is discretionary. It provides that a court “may” order that the costs of an Internet service provider be covered by the applicant. It does not require that they must be, so it is a discretionary order that the court can exercise. This would not prevent a court refraining from making an order requiring an applicant to cover an Internet service provider’s costs if it is considered that such a provider acted unreasonably in opposing the application, or used a more inefficient or costly method than necessary to obtain or provide the identifying information to the applicant.

It is also important to remember the purpose of an identification order, which is to enable an applicant to bring a defamation action against an anonymous poster of a defamatory statement. It will, therefore, be open to an applicant who successfully obtains an identification order to seek damages from the poster of the statement. Section 31 of the 2009 Act provides that in making an award of damages, regard should be had to all the circumstances of the case, which, in my view, and as I said earlier, could include the need for the plaintiff to incur the costs of identification order proceedings in order to initiate the defamation action. Therefore, I cannot accept amendment No. 26.

I should also point out that we are assuming, when it comes to this type of application, that, if I can use the expression, it will be the small man or woman who is trying to identify who is the villain out there who has defamed them online. I am also conscious that this statutory procedure could be used by a large entity to try to find out the identity of a much less powerful individual who, maybe because of his or her position, cannot identify himself or herself, but has made statements online. We have to be conscious that this is not always going to play out in the way we assume it will. It is important for me not so much to ensure that this does not happen but, rather, to accept there may be circumstances where identification orders may be used to try to ensure that a defamatory statement is not repeated, and to pursue an individual who has made it. I am conscious that in the realm of the SLAPP provision that I have already introduced, I want to ensure that this is something that is guarded against in the legislation. I believe it has been so done. Therefore, I cannot accept amendment No. 26.

Senator McDowell has put forward amendment No. 27. This amendment seeks to insert a new subsection (7) in section 45. It would provide that a court may order that any information supplied on foot of an identification order would be admissible in any subsequent defamation proceedings without further proof. That is quite a radical amendment. We need to think about how that would play out in terms of the identification order and the subsequent proceedings that are initiated.

Let us use the example of a Senator who is defamed online on a social media platform. An outrageous statement has been made in respect of them, and they want to find out who has published this statement. They can go to the Circuit Court under the statutory regime that I am putting in place. They apply to the Internet service provider for the identification of the individual who the service provider says is liable for the account. That is all they are going to get; they will get who is liable for the account. That information is then provided to the Senator. The Senator decides to issue defamation proceedings against the individual who has been identified by the service provider.

Senator McDowell's amendment is suggesting that the order that is being made can be admissible without further proof of the fact that the individual identified by the service provider is the publisher. It may be the case that the individual is not the publisher even though the individual's name is the name on the account. I would be extremely hesitant about putting in place a statutory procedure which would, say, enable a person who has issued proceedings - let us say that Mr. Murphy is the person whose name is being given as the person identified with the account - to go to court to say “I have issued proceedings against him; he is the publisher of it; I do not have to prove this any further”. It is an essential part of any defamation proceedings that you prove who has published it. In many instances the publisher will admit publication. If they do not, you have to prove it. Obviously, there will be enormous advantage in having the information from the Internet service provider that Mr. Murphy is the publisher. You have issued proceedings against him, and he will then have to deny or admit liability in respect of it. If he does not admit liability, you can still bring the case against him. You can give evidence in the court that you went and got an identification order and he was identified as the person who owned the account. However, he should be entitled to come in and say that even though his name was on the account, he was not the publisher. The publisher might have been another individual who used his account; perhaps an employee who used the account. I do not think we should automatically assume and say that in law it is admissible without any further proof. I think that would be a step too far.

I do not consider such an amendment to be necessary or appropriate. An identification order is only to be made where it is necessary to allow an applicant to obtain information necessary for them to bring defamation proceedings. Such information would generally be limited to a party’s name or contact details. I do not think it is necessary to enable the court to order that such information would be admissible in subsequent proceedings without further proof. As I have noted, identification orders are exceptional orders made in the absence of representations by the party whose information is to be disclosed. This is one of the reasons that section 45 sets out conditions which must be satisfied before they are granted and goes on to provide guidance to the courts as to the factors to consider when exercising its discretion to grant them. I would be wary of including a provision in this section which might be interpreted as an indication that information beyond that necessary to bring proceedings could be obtained through an identification order. For that reason I cannot accept amendment No. 27.

I am coming to the end of my response to the grouping of amendments Nos. 20 to 27. I thank Senator McDowell for putting the amendments down. I cannot accept them but I agree with him that section 22 is a very consequential provision that will have a very significant impact in enabling people who are defamed to find out who the defamer is so they can seek access to justice before the courts.

I thank the Minister. That was a fairly comprehensive series of replies. I want to talk about the social media providers or the Internet provider. The Minister says they are merely providing a service. If I put up a tweet or post that says "Joe Bloggs is corrupt and anything he ever earned was earned through corrupt means", then Joe Bloggs may have a case of defamation against me if he can identify me. The Minister says that the Internet service provider has no liability here. They use algorithms. It strikes me that the law around the liability that an Internet service provider may or may not have is somewhat dated now. Internet service providers use algorithms to further a topical issue. Someone with a very well-known name might be named on a social media platform. Interest drives the Internet service provider to use an algorithm to push that further and further. I am in a bit of a corner here with two eminent lawyers in the room who understand these things much better than I do, but is it not the case that once the algorithm kicks in the Internet service provider is now publishing the defamation without any knowledge other than what was posted by the original person? I have watched with interest since I moved off Twitter how some of the stuff that was said about me has stopped because I am not there to respond any more. There is no interest anymore. It is gone; it is finished. Yet, if you look, there is now a @GCraughwell on Twitter and it is not me. Has the Internet service provider not got a legal obligation to ensure the person using my name is actually me? What if this person who is using my name defames someone? This goes back to the Minister’s last point - the account may hold my name but I am not publishing it. Members of this House and the Dáil frequently use members of staff to keep their social media up to date. Does that mean they are immediately immune in regard to whatever has been said in their name? I am a little confused on it. I think we are letting off the people with the serious money to meet defamation cases and allowing the lunatics, if you want to call them that, or those who want to say defamatory things who do not have the means to compensate those they defame. It seems I am missing a trick somewhere. I would be interested in the Minister’s views on that.

I call Senator McDowell.

Does the Minister want to answer?

Obviously Senator Craughwell has raised issues that go beyond what is in the Bill here today. I know he is very conscious of that. As I said at the outset, the Digital Services Act and the e-commerce directive provide what can be described as high-level immunity to Internet service providers. They are not liable for what is put on their platform. You can understand the reason for that. Social media would not operate if somebody had to assess it and modify it every time. This is part of the reason a lot of traditional newspapers have stopped the comments section. 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 in respect of it.

On people using the Senator’s name online, there is a mechanism for him to say that his identity is being passed off by another individual. He can contact the Internet service provider about it. We are stuck with the law at present that says that under the Digital Services Act, the commerce directive, there are protections for Internet service providers.

On algorithms, I would have thought that was just an issue that goes to the increased circulation of the publication. It does not really go to the issue about liability of the publisher.

I listened very carefully to the Minister's response to amendments Nos. 20 to 27. It reminded me of many years ago when I was at the same school as the Minister. I was not particularly athletic and I was scoring in a cricket match against St. Mary’s College. The captain of the Gonzaga team came over to me and said, “We are a man short, will you go in and bat?”. I told him I had never batted in my life. I had glasses at the time and the whole thing was a highly dangerous proposition. He said "You have got to do it, Michael". He was, in fact, the late Mr. Justice Kevin Feeney. So I did it. He told me what to do: that I was to just hold the bat in front of my legs and do nothing; do not attempt to hit the ball – just block and he would try and score the runs from the other end.

Listening to the Minister's analysis today, I have never seen a greater demonstration of blocking tactics being used in a House. Virtually everything the Minister has said in response to my amendments is illogical, inadequate or simply wrong.

I will start with the first one, which was that there should be concurrent jurisdiction in the Circuit Court and the High Court. I was not suggesting that the Circuit Court should be debarred from doing this. By the way, the Minister should be aware that the Circuit Court is often not the cheapest and the quickest. If he were to try to get something on in the Circuit Court in Galway or Cork, he would be far quicker to bring a motion in the High Court in Dublin; I can tell him that for starters. He will find himself with his team of counsels sitting down there waiting for the family law list or whatever to be finished and by the end of a day he will be told come back tomorrow and have to stay overnight in a hotel. This is the reality of a Circuit Court being given jurisdiction.

We are not even clear which Circuit Court has this jurisdiction. I do not know where the territorial jurisdiction of the Circuit Court is provided for in this section. Does somebody who wants to apply go to Dublin because they live in Dublin or go to Tralee because they live in Kerry? I am not clear that the Bill actually distributes jurisdiction of a local and limited kind to any particular court.

The Minister has explained in a very convoluted and wholly unconvincing way that the existing equitable jurisdiction of Norwich Pharmacal orders will continue to exist in the High Court. Therefore, the High Court will have jurisdiction to make similar orders to these ones but instead of saying the Circuit Court can make Norwich Pharmacal orders on its equitable jurisdiction, the Circuit Court procedure will be as laid down in this statute. That is the Minister's explanation. He wants a statutory jurisdiction to make these disclosure orders or identification orders in one court and a non-statutory equitable jurisdiction in another.

That sounded great as the Minister outlined it to the House but it is utterly illogical. Why not allow a Circuit Court judge to make the same judgment and decision as a High Court judge? Why set out for a Circuit Court judge all sorts of jumps that the applicant has to go through in statute form as a matter of legal requirement when the High Court, exercising its equitable jurisdiction, does not necessarily have to follow all those procedures? Just because it is the current practice in the High Court that X or Y is normally required, it does not mean that the court is bound to do so by statute. So, we are introducing a two-tier, twin-track approach where the High Court will continue to have its existing jurisdiction to do all these things and the Circuit Court will only have a statutory jurisdiction of the kind being proposed by the Minister.

I will stop there and say there is simply no logic in that. If the Minister wants to encourage people to go to the Circuit Court to seek these reliefs on the grounds that he claims it will be quicker and cheaper, why not simply say that the Circuit Court will have the same jurisdiction as the High Court to make these orders? There is no logical answer to that question.

The second point is this. It is very strange that the Bill does not say that the right to appeal a Circuit Court order to the High Court is in any way affected by conferring this jurisdiction on the Circuit Court. As matters stand under this legislation, a defendant ISP, having lost an application for an identification order, will be entitled to appeal that matter to the High Court for a second run of the issues. This is not a specious lawyer's point because the section outlines the things the court must be satisfied about. They are first of all the conditions set out in the proposed section 45(3). These are the statutory requirements that an applicant must comply with. Those matters are ones that have to be ventilated and argued if necessary in the Circuit Court. At the end, the Circuit Court judge will say he or she will make an order. The next thing is the ISP claims it should have won that and takes the case to the High Court. The Minister claims that is cheaper and more convenient; it simply is not.

The Minister has said that we are using a sort of presumptive example that it is the small man against the big ISP that is at issue here. I am not relying on some kind of unrealistic or improbable scenario. I am looking at the Constitution, Bunreacht na hÉireann, which provides that the State is obliged to vindicate the citizen's right to a good name and to defend and, as far as possible, vindicate that right. I am talking about citizens. If the Minister wants to say that companies or people with SLAPP injunctions or whatever are a different kettle of fish, so be it. However, I am talking about ordinary people whose lives can be destroyed by what is on the Internet, what is put up on the Internet and what is cached on the Internet. As I said on the last occasion, a woman might be seeking a job and this great big artificial intelligence, CGI behemoth spits out that when she was in college she engaged in sexual misbehaviour, and the prospective employer can see that simply by pressing a few buttons. I am thinking of the damage that is done to someone in those circumstances.

I start from the proposition that the High Court should have jurisdiction. I gave the example on the last occasion that the High Court could be in a position whereby it is already seized with a case where something happens on the Internet to worsen the situation from the point of view of the plaintiff in the High Court. The Minister will say that is fine because the High Court still retains its Norwich Pharmacal equitable jurisdiction to act in the matter. All I am saying is that if there is a cheap, efficient and simple method for ordinary citizens to seek identification orders, it should be available both in the High Court and in the Circuit Court and that no harm is done thereby. There is no confusion whatsoever.

If on Report Stage the Minister wants to make an amendment stating that nothing in this section affects the jurisdiction of the High Court to make a Norwich Pharmacal order, so be it; let him do so. However, there is no good reason to say that only the Circuit Court - we do not know which Circuit Court - can make this application.

The section does not identify which court in the Circuit Court is to be vested with this jurisdiction. That is a mistake, in my view - a fairly elementary one. The Circuit Court is justified in constitutional terms by its being a court of local and limited jurisdiction, other than the High Court. It is incumbent on somebody who confers on the Circuit Court a right to give an order against an ISP, that the decision as to where the ISP is the receiving party in such an application is provided for in statute. We cannot say the Circuit Court has the right, for instance, to revoke a publican's licence because it has to be in the circuit. This application is at large, that it is the Circuit Court, wherever that is, any circuit judge or any convenient circuit judge. Does one go to Galway because one lives in Galway or does one come to Dublin because the ISP has an office in Dublin and is located there? That is not provided for in this section and it should be. That is the first legal error, in my respectful submission through the Acting Chair, that the Minister has made here.

On the Minister's broader point, I do not see that there will be any confusion in saying this identification order is available and that the wider jurisdiction of the Norwich Pharmacal-type order in non-defamation cases still continues to exist. I do not think the courts will be in the slightest bit confused by that matter. I do not accept that proposition. What I am trying to do is make the system easier to operate, not more difficult.

I will not waste time on the "seriously" provision because I have already explained why that was done, which related to amendment No. 21.

Amendments Nos. 22 and 23 are designed to have a particular effect and that is to remove the obligation on an applicant to demonstrate that the applicant has no other practicable means of obtaining the relevant information. If something is published anonymously, what possible other practicable means are there? We are not being told by the Minister that here are other ways we could identify the person who posted an anonymous defamation. I do not know why that was inserted but it seems to be to be an unnecessarily conservative provision to put into the particular procedure. Why would somebody go to court? Why would anybody go to court to find out the identity of an anonymous poster if they had a non-court-based means of achieving the same result? I do not understand this point. Why would anybody say, I have two methods open to me, one is to employ lawyers to go to court to find out who has defamed me anonymously, but there is some other practicable method - I do not know what it could be and nobody has suggested what it could be - which I could employ to the same purpose? I simply do not understand why that has to stay as one of the statutory conditions.

Amendment No. 24 vests a further jurisdiction in the court asked to make an identification order. It is not much of a discretion because the word "only", as Senator Mullen said, has to be looked at very carefully. In subsection (4) of the new section 45, the further discretion is to say that:

A court may -

(a) make an identification only where it considers that -

(i) it is in the interests of justice to do so, and

(ii) the interest favouring disclosure of relevant information outweigh those against.

The Minister is proposing they are absolutely necessary preconditions to the making of an order. That is fine but if the court comes to that view, how could it not be a mandatory obligation on the part of the court to make the order then? If the interests of justice require it and the interests favouring disclosure of relevant information outweigh those against, why do we say that, on top of that there is a further discretion just to simply say "No" vested in the courts.

The next paragraph states:

... having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order ...

If it is in the interests of justice, and those interests favour disclosure and outweigh the interests of other people, then we have to have regard to the possible rights of any third parties who are reasonably likely to be affected by the order. I wonder about this. What is that designed to do? Is the Circuit Court to say, tell me who it is secretly before you reveal it to the applicant? Will the Internet service provider inform the judge secretly, without identifying the applicant, who the anonymous poster is? Let us remember this, the Minister at a later stage in his comments said it is not necessarily to be assumed that the person who actually put the post up is the defamer. If the court is to decide whether the interests of the anonymous publisher are taken into account, how can it do so without being informed as to who the anonymous publisher is? If it is done in open court, the applicant gets the information during the course of the argument. If it is not done in open court but is done on an ex parte basis, there is a situation where the court is making an inquiry as to the justice of the situation and is vested with a discretion not to make an order, where the person who is seeking the order and who has already complied with (a) to (e) on the Minister's list, that he or she appears to have been defamed and is likely to succeed at trial, that the relevant information is necessary to identify the person and that the relevant information is likely to be in possession of the relevant ISP.

I will stop there. If (c) is satisfied that it is necessary to enable the applicant to bring the defamation proceedings, why is (e) put in there at all? I do not see why you should duplicate those two things. In any event, all my amendment is designed to do is to say that where a court considers that it is in the interests of justice to make an identification order and that the interests of justice in favour of disclosure of relevant information outweigh those against, considering the rights and obligations of the applicant, whatever they are, and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, the court may still say no order to be granted in this case. I do not know what that is supposed to achieve. If those conditions in (4)(a) were satisfied, I cannot see how a court could possibly refuse to make an order.

The Minister has come into this House and said that he still wants to keep it within the discretion of the court, notwithstanding the proof of everything in subsection (3) and subsection (4)(a) that the court should have a jurisdiction. Again, I find the Minister's approach extremely conservative and misguided. What I am dealing with here is the right of a citizen to vindicate their good name. What I am talking about is the obligation of the State to defend the citizen's good name and to vindicate as far as possible the right of the citizen to re-establish their good name. There in paragraph (4)(b) is the following. The Minister explains it as analogous with discovery.

At the moment, there are various legal procedures. If A is litigating with B, A is entitled to serve what are called interrogatory notices on B. They are questions before the trial of this action that B is required to give a sworn reply to. The courts have the right to tell someone, by way of interrogatory, to answer the question whether they did or did not do X or Y. The defendant, in conventional proceedings and the Commercial Court, can be directed, without even a court order, by the rules of the High Court commercial division, to comply with interrogatories properly served. The point is that the whole jurisdiction to order discovery is not applicable to an Internet service provider. It is not and it should not be.

I fully accept that the Minister has said that the current state of the EU directive and the Irish digital services legislation is that Internet service providers, ISPs, are not liable for the messages and the traffic on their service because they are regarded, to use the European phrase, as mere conduits. There is an analogy for that. An Post, for instance, is not a likely co-defendant if a defamatory letter is sent by post. Any of the telephone companies cannot be found liable for what one subscriber to a phone service to another of a defamatory kind. I see that analogy. It is sensible within certain limits. One of the differences between the Internet and the phone company and the postal service is that there is no obligation, and I think the European Court of Justice has reiterated this, to engage in surveillance to stop defamatory material appearing any more than there would be in An Post to intervene and start opening envelopes or to telephone operators to sit listening to conversations and disconnect a subscriber halfway through a defamatory conversation. I accept all that, but, and this is the fundamental thing, it is well settled law in Europe and in Ireland that somebody who is an Internet service provider is nonetheless liable to injunctive relief to take down defamatory material and to prevent its dissemination once it is put up to them and they can identify the injustice or wrong that is alleged to have been committed. Internet service providers are not just like An Post or a telephone exchange. They are something different.

To go back to what Senator Craughwell said, they are putting up stuff, say on X. Why does it appear at the top of the list on X? Why does anything appear at the top of the list on X when you consult it? It is done by elaborate algorithms which, based on your previous use of X, and other factors, bring to your attention material which they consider you are most likely to be interested in. You do not have to follow somebody on X to see what they say about you. If they actually include you as somebody to whom the material posted relates, or if an algorithm somewhere in cyberspace comes to the conclusion that you are a person who would be interested in this, it is put up there.

I do not accept the proposition that the laws relating to discovery are in any way analogous to the law which must be there to identify somebody who is posting anonymously. Let us remember that it is the Internet service providers that facilitate anonymous publication. I am glad to see someone is carrying on Senator Craughwell's Internet existence even though he has withdrawn from it. Even if I use a pen name, I am not entitled, because X chooses that to be so, to know who is behind the pen name. I am not permitted to know that. They choose to afford to their posters impenetrable anonymity save without a court order.

That is their choice. They could say it is a term and condition of posting on X, and I can tell you I have been very tempted on occasion to set up an anonymous account myself to have a right go at some of the people who have had a right go at me. I have refrained from doing that. That does not take away from the fact that anonymity is a contractual gift from the ISPs, in most cases, to their customers. They know that if somebody posts under a particular nickname and the posts are defamatory, the author will be unknown to the person defamed. They know that and they decide that it is better for the use of their network, or whatever their service is, and more profitable for them to grant anonymity. It is a choice they have. They could easily have a system whereby every time "Dissatisfied, Ranelagh" posts something, people are entitled to look and see who is "Dissatisfied of Ranelagh", and be told in fact that it is Michael McDowell using an anonymous tag. The ISPs guarantee this anonymity; nobody else does. When they choose to guarantee anonymity it is a bit like the analogy the Minister used of the person on whose gable wall defamatory graffiti is painted. That is one thing but if you are charging for the paint, leaving the brush out there and then saying "Have a go", it is very different from somebody who is simply passive in the circumstances. They are not passive, however, and that is the huge danger.

The ordinary Irish citizen who is defamed by an anonymous poster is entitled to look to this State for protection, vindication and the restoration of their good name, but is faced with the profitable contractual arrangements that ISPs make with their customers, which afford the people who do the defamation a privacy, subject to the intervention of the courts, and allow them to do so for profit. That is the fundamental difference. This is not a case of a bank being told, in aid of civil litigation, to discover when a transaction was made. It is not analogous with that at all. The defamation is absolutely impossible without the profit-driven and policy-directed activity of the Internet service provider. If it is a citizen versus an Internet service provider which affords anonymity, I do not accept the proposition that this is not a David and Goliath situation. It is a David and Goliath situation.

When we are providing a practicable remedy in the Circuit Court we should recognise that someone who is defamed and who has to go to lawyers has to take money out of his or her bank account to pay for the application to be made. Very few lawyers are going to do it on a no-foal, no-fee basis except in the most grotesque manner. The person is going to have to pay for this. Then we are being told by the Minister that because the Internet service provider is legally innocent, you can pay to find out who lurks behind its contractual guarantee of anonymity. I do not accept that proposition at all. I think it is most unjust.

The Minister sort of said he thought these kind of orders should be difficult to obtain, or not easily obtained. I do not accept that. If somebody defames me, it should be very simple that I contact X and say, "Who wrote that? It is obviously defamatory", in a solicitor's letter and X is then obliged, unless it wants to fight it out in court, to say who, to the best of its knowledge, put up a post with defamatory material. This is another point about the Minister's whole approach to this, which I consider to be not merely utterly conservative but slavishly designed to protect the interests of the ISPs rather than the citizen.

Telling somebody who has been defamed anonymously that it is simply a discretion, a difficult discretion and a rare discretion, in terms of the occasions on which it is exercised and vested in the courts, is to erect a series of barricades in the interests of the ISPs. I am not going to make an unfounded allegation but I have a deep suspicion - I will not put it further than this - that the attitude, which is so conservative, in this legislation is designed to pay obeisance to the interests of the large multinationals who control the Internet. I am not hostile to them but I think they have social responsibility as well.

In discovery, the Minister is quite right that if you start an action, A versus B, and if you get discovery from B or C third party discovery, one of the rules is that you do it on condition that you only use the discovery process for the purpose of your litigation. That is fine, but just think about an anonymous defamer. What if it turns out the anonymous defamer lives in South Africa or the United States of America where there is no defamation law worth talking about in these circumstances as long as the person can claim to be honest in their misguided belief? If you find out that is where the person who posted it is, what are you then to do? Are you to go to America to sue that person and employ American attorneys in the hopeless task, bearing in mind the constitutional guarantees to free speech in the US, to somehow sue the person who has defamed you? It is not much of a remedy. However, if you do get an identification order from an Irish court, it might be of huge significance to say, "It was Elon Musk who posted that anonymously but I am damned if I am going to sue him because it is pointless - I cannot sue him", or it could be somebody in the jungles of South America. However, at least I know and can say in public that the damaging lie written about me was published by Joe Soap or Elon Musk, or whoever it is. The Minister is saying that, in an analogy with discovery, you cannot make public the fact that the person who wrote this stuff about you is a particular person, unless you are going to sue them. We then have to ask this question: if there is an argument about the anonymous poster's rights in court, is the whole procedure going to have to be held in camera or can a member of the media listen to the whole proceeding, find out that it is Elon Musk who was actually the anonymous poster and everybody is bound to secrecy in that respect?

That is what the analogy with the discovery process brings us to, namely, a most unwarranted veil of secrecy thrown over an identification order. If it was made a condition that it would only be used for defamation proceedings and someone discovered that it was Elon Musk who had been tweeting about them - I do not think it is unfair to name him since he was the man who tweeted an allegation that the man who was putting together the engineering to get the Malayan football team boys out of a cave was a paedophile for no particular reason - and there was no prospect of suing him, will the person then be subject to some Trappist obligation of secrecy? Elon Musk said something about me and it is gross but he did it anonymously and I am bound by the terms of a Circuit Court order that says I can only use it if I sue him. That is not reasonable at all. It is not a proper vindication of my rights if I am defamed by him, that I would never be a allowed to reveal who defamed me because of a condition laid down by the Circuit Court that the information can only be used for the purpose of defamation litigation.

If any of these provisions had been even remotely considered by or raised in Dáil Éireann - they were not because it was never considered in Dáil Éireann really - all these questions would have been teased out before this Bill came in this form to this House. Now we are faced with schoolboy Michael McDowell and the blocking tactics whereby the Minister claims he cannot accept any of the amendments to improve his Bill with a series of deeply conservative arguments, which are unnecessary. What possible grounds could there be, if it is in the interest of justice to make an identification order, if the interests favouring disclosure of relevant information outweigh those against, and all the conditions are met - that it is defamatory, it is likely to succeed if brought to trial - for a person who has been defamed to be restricted from revealing who the defamer was? I cannot understand that proposition at all.

Amendment No. 26 is different from the Minister's proposed subsection (5), in that it takes away completely the nod and wink that the Circuit Court judge - the Minister has more or less re-echoed the same kind of thinking - should be willing to order that applicants for an identification order, having won the case with all the interests of justice arguments having been concluded and perhaps even the whole thing having been appealed to the High Court, nonetheless should pay the ISP's costs for finding out who defamed them. What possible argument could there be for that?

The amendment we are dealing with also includes the proposition that "the court may order that the relevant internet service provider" - and the discretion still exists in this - "pay any or all of the applicant’s costs where it appears that the service provider failed or refused unreasonably to provide the applicant with relevant information when requested so to do or where the applicant succeeds in obtaining an identification order." What that formulation is supposed to bring about, and the Minister has never zeroed in on it at all, is that there should be a provision that the person who has been clearly defamed can write to the Internet service provider and ask it to identify who operates the account. That is all the person would ask for in a letter and if the ISP refuses to do so, for whatever reason - perhaps it has a contract guaranteeing anonymity so that its profits are bigger or whatever - and if it becomes necessary to make an application for an identity order, it can bear the costs of this. Why should there not be a pre-trial process or a system for making a demand of an ISP?

For example, I have clearly been defamed. He has called me a paedophile, whoever this person is. The ISP cannot just sit there and say that I may be a paedophile, it does not know, so it will not identify the defamer and then tell me to go to court if I want to force it to identify the person. Is that to be the Irish State's attempt to vindicate and protect the good name of a citizen? Is that what we are saying is a serious demonstration and execution of that constitutional duty of the Irish State? It is not. At the very least, the procedure should involve a person asking to be told who posted something. If the Internet service provider says it will not, so be it on your head. In those circumstances, to say to applicants who have been defamed that, even if they succeed in court, they can pay the ISP's costs is grotesque.

The Minister defended this on grounds of principle. I see no principle here. I see the exact opposite of principle. The principle I see is that individuals who have been defamed are entitled to know who has defamed them and the multinational company that has broadcast the defamation across the world - in that respect, it is different from the postal or phone services - for everyone to see will not tell them who committed this tort and attempted to destroy their good name. To say that is grossly inadequate in the circumstances. I am not just playing to some imaginary gallery, because the media do not give a damn what happens in this House. It is in this House that we have the duty - and in Dáil Éireann, which unfortunately abandoned its duty - to tease this out so that it will be addressed. Therefore, what I am saying is that people who have been defamed should have, as part of the statutory procedure, a recognition of their right to write to the ISP and say this person has called me a paedophile and ask it to identify who it is, because it was done under the cloak of anonymity. That is, there should be a presumption that the ISP would do that and if it wants to contest it, let it got to court and take the cost consequences of doing so, but the Bill reverses that completely and says "No".

It says a solicitor has to warn clients on day one that even if they succeed with the application, they may end up not only paying the solicitor and their counsel to make this application in the Circuit Court, but also the costs reasonably incurred by the ISP in losing its effort to refuse the information requested. That is grotesque.

There is no principle that requires this because we are dealing with a novel situation. As I said, the Internet is not analogous with the post or phone service. Rather, this is publication to the entire world. It is just as much publication as The Irish Times publishing something on its front page. The EU may say that immunity from suit must be afforded for the simple fact of communicating the information as a mere conduit but, where defamation has taken place, the rights of the person defamed are of a different order. If they are entitled, which they are, to seek an order against the ISP telling it to take down the material on a website, they must also be entitled to know who was responsible for it in the first place. The damage is the damage. Saying it is some kind of privilege based on court discretion and that the people who actually disseminated defamation have no responsibility because they did not know it was defamation and do not check, for good reason, and that no one else can be made amenable for it unless the person takes the risk of paying the ISP’s costs in contesting his or her right to know is absolutely indefensible.

The Minister says that he cannot accept amendment No. 27. I am astonished. Why can he not accept it? I will give an example. Amendment No. 27 states: "In any defamation proceeding, relevant information supplied by a relevant service provider shall be admissible without further proof where the court so orders ...". It requires a court order to make it admissible, as an exception to the hearsay rule, because normally a statement by a company not party to the proceedings of fact is not admissible to prove that fact under the hearsay rule. The amendment continues: "... if it is supplied to an applicant upon request or on foot of an identification order”. The Minister rejected this on the deeply mistaken and utterly flimsy ground that it might be that the account holder did not actually type the defamatory words. So what? If the defamation proceedings proceed, the account holder can make that defence. All this amendment proposes is that the information given on foot of a court order, whether contested or not, or on foot of an application for a letter preceding an application, should be admissible, not proof of its contents beyond contradiction. For example, if X tells me that the man who defamed me and called me a paedophile is Elon Musk, I would not have to prove again that it was Elon Musk unless he came to court and said it was not in fact him. Something being admissible does not mean it is conclusive evidence. If people who get an identity order cannot use that order but have to prove all of the sequence of events that have been investigated by the company in America as to who the owner of that particular Internet account or whatever is, this is an absolutely worthless remedy. As regards telling me in court that it was Elon Musk who made that remark about me under the guise of anonymity and then telling me that, by the way, I will have to prove it myself, who is in a position to prove this? It is the company. How do you prove it? Is it to bring in some low-grade executive in Dublin to say the company investigated it and when asked, "Did you investigate it, Mr. Bloggs?", to say "No, I did not but I was told by somebody in America that they investigated it and it turned out to be Elon Musk’s personal account"? How is that justice? You have your an identification order and a High Court judge is saying "Sorry, it is inadmissible, does not prove anything and is hearsay". The Minister says here that, as a matter of principle, it should be inadmissible, even with the right of the alleged poster to contradict it in court. People are being asked to somehow prove it otherwise themselves. How could an ordinary person prove that? How could an ordinary person in Ireland prove who posted something outside the Irish jurisdiction? Practically speaking, they cannot. Think of the money that would be involved in putting together the chain of evidence necessary to get around the hearsay rule.

Amendment No. 27 is the least problematic of the amendments we have tendered in this Chamber. Yet, we are told that the Minister, like Senator Michael McDowell with the bat in his hand, cannot accept this. He cannot accept it because it is “wrong in principle”. Wrong in principle? X knows who runs an account. If someone who runs an account says it was their teenage son who did it, that is fine. At least if you are going to sue X and the account holder is going to establish that he allowed his teenage son to use the account to defame you, that is fair enough. There is no way of proving it if the certificate is not allowed to be admissible at the very least - not conclusive proof that the person is the defamer but that they are the account holder of the anonymous account. If the Minister cannot accept that, then I have to ask a much more fundamental question - what is this Chamber about? Dáil Éireann never considered this Bill at all. It came to this Chamber unconsidered. It passed in the Dáil without any kind of examination. The Minister comes into this court-----

The Senator is straying from the debate.

The Minister comes into the Seanad and says that, on principle, he cannot accept any amendments tendered to any part of the Bill so far. I am beginning to suspect that his plan is to pass it without even having to bring it back to Dáil Éireann. I am beginning to suspect that is the strategy. If the Minister were to tell me he even had his own Report Stage amendments to deal with something I may never even have raised, I would be interested to hear that. I feel we are dealing with the batsman blocking here.

It is simply a case of holding the bat, saying "No" and hoping the game will be over fairly soon. That is no way to treat this House or this Parliament. If one part of the Parliament says it is not interested in discussing these changes, so be it. That is its responsibility. If those involved have other, more important things to do like denaming or renaming parks in Rathgar, God bless them all. This will affect the constitutional rights of ordinary citizens. I cannot for the life of me see why the improvements we are suggesting should all be batted away at the other end of the crease as if they are of no consequence whatsoever. The only coverage this debate has had so far was in an article in The Irish Times suggesting that there is a filibuster in progress. That is pretty shocking.

Shocking.

That is shocking.

It is shocking. This is the legislation they have been pleading for.

I will say one thing to the representatives of the newspapers who are in the Public Gallery. They at least should be strong on defending citizens' rights in the context of the anonymous publication of details on the Internet. They carry a different burden, as the Minister conceded. They cannot publish a defamatory letter or repeat a defamatory statement without there being editorial and legal consequences. We are trying to do something to reverse the gross injustice done day in, day out to decent people on the Internet because the Internet companies accord anonymity to keyboard cowards who know they can get away with it. If the Minster says this is one of the most important provisions in the Bill, that is fine. He should make it really work. This will not work because, as I said, an identification order made by Circuit Court in the hands of a plaintiff in the High Court cannot even be handed up to the judge to say it was Joe Bloggs who did something. The Minister stated that, as a matter of principle, that should remain the law. I cannot believe that, but it is what we are hearing.

I thank Senator McDowell and call Senator Craughwell. We will then hear from Senator Gallagher.

Senator McDowell raised a number of interesting points. I will start with the simplest. A long-standing tradition in the trade union movement back in the good old days when I was involved in trade unionism was to always resolve an issue at the lowest possible level. The Bill should enable me to write to a service provider and say, "I believe I have been defamed on your platform. I wonder if you could give me the name and address of the individual involved." Only then, on a refusal, should I have to look for legal representation. My solicitor should be the next port of call. After that, it would be the courts, if that is the way I have to go. That is in favour of the ordinary citizen who has limited funds going up against these ginormous concerns. Let me give an example. If somebody sends me an email today saying that Joe Bloggs is a paedophile and I say that everybody in south Dublin needs to know this, so I send out a message to everyone on my massive email list saying that I have been informed that Joe Bloggs is a paedophile in circumstances where Joe Bloggs is not actually a paedophile and is a fine, upstanding citizen, have I defamed him by rebroadcasting information I am not capable of proving? Am I liable? I run a website - most of us do. If I am looking at social media tonight and I see something about a Member of this House, if I decide to take a screenshot and put it up on my website, I am only a conduit. I am only putting up on my website what I saw on a social media site. The social media site is not liable. That is what the Minister is telling us. Am I liable because I just put up a screenshot of a social media post on my website?

You are.

I want to know that. We talked about social media companies. When I sit down at my laptop, PC or phone and decide to tweet something or put something up on a social media site, I am transmitting. A transmission takes place in bits, bytes, packets, etc., which move their way through the Internet from the original source. If the Minister looks at the social media website in question this evening, because the algorithm knows he is interested in the sort of thing I just tweeted, it will appear at the top of his list. Has the Internet service provider transmitted something? Has a transmission taken place which is defamatory? It is not as simple as saying that the Internet service provider in question is merely a conduit; it is not. It uses sophisticated algorithms to rebroadcast things it thinks will drive traffic to its website.

The Minister talked about the Digital Services Act, European directives, etc. They are all grossly outdated. Technology moves in exponential leaps and at a phenomenal rate. The Minister is providing protection for people who are making massive profits out of the gutter of interaction between human beings. I do not believe they are just conduits. A conduit - you stick it up on your window and that is it. If I manipulate something in some way to ensure it has a greater audience, I am no longer acting as a conduit; I am acting as a transmitter. I am acting as somebody who is bringing forward defamatory information, that is, if the information turns out to be defamatory.

I have huge concerns about the way in which the most wealthy of the individuals involved here are being protected. The individual posting the material, as Senator McDowell said, may not actually be aware that what they are saying is defamatory, but you can be damn sure that the service provider will have a string of lawyers to provide it with advice and information.

We are going to run out of time today. I will come to the House on the next occasion and go through the transmission methodology involved in bringing forward messages. Someone cannot say they are not liable if they are transmitting information. As Senator McDowell pointed out, there is no border. If you put something on the front page of The Irish Times or the Irish Independent, it is probably restricted to Ireland. Put it up on the Internet and it can be seen anywhere in the world. I would like to simplify things and see if there is a way to move things forward in a way that will ensure there is justice for the individual, particularly as we cannot all afford to run to the courts. That is the bottom line. I will see what else comes up.

I am conscious of time. I found this afternoon's session very informative on a number of fronts. On a lighter note, I learned from the right honourable and learned Senator McDowell that in the event of the Minister deciding to change careers, there may be a future for him on the cricket fields. I am sure that provides the Minister with a great deal of reassurance.

On a more serious note, the debate has been very informative. I have enjoyed it. We are fortunate that we have a number of learned individuals with very strong legal backgrounds involved in this debate. I thank all of those who have made contributions so far. As the debate proceeds, I am conscious that Joe and Josephine Bloggs may, perhaps, be sitting at the kitchen table listening to it.

I apologise for intervening. I ask Senator Gallagher to report progress. He will be called on again to complete his contribution on the next occasion.

I report progress.