I welcome the Minister back to the House. Senator Gallagher was in possession.

Gabhaim buíochas leis an Chathaoirleach agus cuirim fáilte ar ais arís eile go dtí an Teach seo tráthnóna roimh an Aire. I thank the Minister sincerely for his efforts in relation to his attendance in the Chamber. It is appreciated by all the Members. He is giving his time freely and it is appreciated.

To conclude my contribution and following on from the contributions of my two learned colleagues to my left, the whole area of social media seems to be in many ways a bit of a runaway train at the moment. We are trying to catch up and give protection to those affected. No later than this morning, someone contacted me who was never on social media in his life and suddenly he discovered in the past few days that someone has made a fake profile of him and is posting material that would be slanderous of those he speaks about. It is causing trauma to him and his family. He is under serious stress because he did not know anything about it until he was contacted by one of the people affected by and referred to in the posts. The gentleman in question knew nothing about it because he had never been on social media. It has caused him undue stress. He is not familiar with social media and it was only when he was notified by one of the affected parties that he was informed of it. He is at a loss as to where to go and what he can do. It is a big problem. He made the point that surely there is responsibility on the Internet platforms to make sure the accounts of those who are posting material are proper accounts, that they have been authorised and that relevant data has been given. He said that before he puts a bet on at the bookie's, he has to verify his identity and go through a process. Surely, he says, the same should apply to these Internet platforms. They should be looking for some form of identification to ensure those who are posting are who they say they are.

In many ways, what we are doing here today is reacting to something that has already happened. That is a difficulty, as the Minister outlined on a previous occasion. We are chasing it in real time. That man said that perhaps the only way we can try to get to grips with this and get ahead of it is to put as much pressure as we can on, or make it mandatory for, the platforms to ensure that anyone who posts on their platform gives their identity and that the identity is substantiated. If it is Robbie Gallagher, I will have to prove it is Robbie Gallagher making the post.

I do not know what the Minister's comments will be about that. That only happened this morning and to say this man was in a distressed state would be a complete understatement.

In response to what Senator Gallagher said, I found on one occasion that someone was posting stuff in my name. The funny thing was that they could do so with impunity and when I tried to get it taken down, the Minister should have seen the obstacles that were put in my way, including having to get copies of my passport, sworn declarations and all sorts of things. It is not really to do with defamation, but it should be an offence to impersonate someone else. I fully accept what Senator Gallagher said about the consequences. In my case, the account was putting out views which were the diametric opposite of my views and the gullible would accept them, but that is it.

In any event, I think we will wrap up Committee Stage this afternoon. Does the Minister intend to bring Report Stage amendments and will he give us reasonable time to prepare ours?

There is a G. Craughwell Twitter account and it is not me. I have contacted Twitter and it has moved from one individual to another. There you go.

I do not intend to take any more of the Minister's time. I thank him for the time he has given on Committee Stage in listening to arguments on the amendments and I look forward to seeing what amendments he will bring forward on Report Stage. I thank him for his patience.

I appreciate the contributions Senators have made to the Committee Stage debate of the Defamation (Amendment) Bill. I have been here for around 20 hours of debate on Committee Stage. I have listened attentively and the debate has been illuminating and helpful in making me consider proposed amendments that I will bring on Report Stage. I will come to that presently.

On the last occasion, Senator McDowell was not criticising me, but he said he thought it would be disrespectful if amendments were not made in light of his proposals. I have great respect for the House, but I am sure Senator McDowell and other Senators will appreciate, when it comes to the amendments I intend to bring forward on Report Stage, it is the case that while they have, to a large extent, been influenced by what has been said here, I have to retain the autonomy and prerogative to decide what I think is in the best interests of the legislation, in accordance with Government policy.

On Report Stage amendments, we had a good debate on section 11 on reasonable publication. I have asked for some amendments to be made in respect of that. As I said at the outset, the amendments put forward by Senator McDowell in respect of section 13 and live broadcasts were also worthwhile and I have asked officials in my Department to try to give effect to the intention of the amendment he put forward in respect of that. Those Report Stage amendments will come before the Seanad in the new year.

I hope and I ask - I am conscious that I do not want to be seen to restrict Seanad debate - that we will be able to finish Committee Stage today. I think that is the intention of the Senators present as well. However, I do not want people to think I regard this in some way as an unimportant debate. It has been an important debate. I take on board what Senator McDowell said last week. In fairness to him, he was slightly critical of the Lower House. In defence of the House of which I am a Member, when it comes to Second Stage debates and Committee Stage assessment of legislation, it can be the case that pressures on Deputies have an impact on the speed with which the Second Stage or Committee Stage debates are dealt with. That is the purpose of this House. The reason many people voted in favour of keeping this House a number of years ago was that they were aware the Seanad has an important role in carefully considering legislation that sometimes might not get the same level of consideration in the Lower House of the Oireachtas. It is an important role.

It sometimes makes sure that a Minister is required to slow down to consider issues that have been highlighted in the debate. That has happened here. I commend Senators on their contribution to the debate and the amendments they tabled.

What has been apparent in the body of amendments we are looking at here, amendments Nos. 20 to 27, inclusive, is that the focus of the debate in many respects has concentrated on the opening of social media accounts. As Senators will know, that is an issue which goes far beyond what is within the parameters of defamation law or indeed the defamation Bill. Senators have raised extremely interesting questions, such as that raised by Senator Gallagher just a few moments ago, as to what should be the rules in respect of the opening of social media accounts, the extent to which people be permitted to pass off the identity of another person by using a false social media account and the remedy an individual who wants a false account taken down should be able to avail of to ensure that it is taken down. They are difficult and complicated questions. I am not trying to avoid them. They are issues that will have to be considered nationally and internationally. There are reasons individuals may not wish to disclose their identity when it comes to running a social media account. Senator Craughwell presented an account - I was not aware of it previously - of somebody presenting themselves as him. I can understand why he would want to take that down. It seems to be very targeted at him. There may, however, be circumstances in other countries where there may be an oppressive government and individuals may absolutely require to have their identity protected in order to communicate openly on social media sites. There are obligations that are going to have to be considered under EU law. I will certainly play my part in respect of them.

In terms of defamation and social media, we had a good discussion the last day on the difference between the traditional media and social media. There is a logic and understanding as to why they are treated differently. It would be impossible for a social media operator to appraise and assess every post that goes up online. It simply would not be feasible for social media to operate in that way.

What we are looking at in these amendments is the Norwich Pharmacal-type orders I am putting on a statutory basis in the Circuit Court. Senator McDowell on the previous occasion queried the need to have concurrent jurisdiction, asking why it would not be possible to set out the rules for a Circuit Court judge as to which circuit should have jurisdiction. I do not see any incompatibility between there being a jurisdiction for a Norwich Pharmacal order that continues in the High Court, not on a statutory basis, and, at the same time, there being a statutory-based Norwich Pharmacal identification order process in the Circuit Court. I have limited it to the Circuit Court because I want people to avail of the statutory mechanism of getting an identification order in the Circuit Court. I put it in the Circuit Court because it will be cheaper to obtain it there. It will also make it more amenable for individuals who are seeking it to know that they can go to a Circuit Court, get an identification order, and it does not require the ceremony and expense of going to the High Court. It is a clear and legitimate policy objective for a Minister to say he or she wants a statutory process in place and to put it in the Circuit Court. I do not want to interfere with the full original jurisdiction that rests in the High Court. It would be inappropriate for me to do so. However, in the future I hope that individuals will go to the Circuit Court for the purpose of securing an identification order.

Senator McDowell also asked why the legislation does not specify the circuit to which a person should apply. In most statutory schemes where there is a process of applying to the Circuit Court it is not set out which circuit should be applied to. In general, the individual complies with what is within the Circuit Court rules. As Senator McDowell will know, one generally has to sue in the Circuit where the defendant, or in this case the respondent service provider, has their principal place of business or registered office. In many instances the applications will be made to the Dublin circuit.

Senator McDowell also talked about the right to appeal. The right to appeal is not affected. We do not need to state that if the Circuit Court order is refused and an entity wishes to bring an appeal, it can apply to the High Court, which hears appeals from the Circuit Court. To a large extent, a significant amount of the contribution of Senator McDowell related to his wish to give voice to the ordinary citizen and protect the good name of the ordinary citizen. I hope he will agree with me that I want to do that as well. I assume everyone in this House is seeking to vindicate and protect the good name of ordinary citizens. Similarly, however, we have to respect freedom of expression and indeed, in certain instances, the right to privacy may be invoked here.

The purpose of the identification order being sought, as I said on the previous occasion, should not be viewed as it has been presented, as though it is the small man or woman against the big Internet service provider. In many instances, that is how it will be in practice but it is misleading to present it as a David and Goliath-type contest. We regularly forget who won that fight. We sometimes think Goliath won that fight. He did not. David won that fight. It was the small person. However, in the context of what an identification order is, it is not that the person who has been defamed is in combat with the Internet service provider. What they are seeking to do is they to obtain information from the Internet service provider to facilitate them in taking their claim against the defamer. In many respects the Internet service provider is a bit like a postman, as was helpfully mentioned here on the previous occasion. It does not have an immediate direct liability but it does have information that can facilitate an individual in identifying the person who has defamed them. Generally, where an entity that is not a party to litigation is brought before the courts for that purpose, its neutrality within the proceedings is recognised. In most instances, at the outset the defamed person will write to the Internet service provider asking it to identify the person who published the defamatory material. Its defence or line is that it will facilitate that person but only with the benefit of a court order. There is a logic to ensuring that there is a court order in place in order to protect its legal position and order, and also to ensure that an individual has a legal entitlement to get that information. The purpose here is that the Internet service provider will then identify the individual or entity that has published it.

One of the issues that was argued and debated trenchantly by Senator McDowell was that when it comes to that order, why would we leave in place a mechanism whereby costs can be awarded by the court against the applicant and in favour of an Internet service provider. If we are looking at the legal situation, leaving aside the characteristics of the entities involved, and it is accepted that the Internet service provider does not legally have a liability for the defamation - that is the law at present, a law that I cannot change because of the provisions of the e-commerce directive and the Digital Services Act - or the cause of action which the applicant wishes to bring, and it is only providing information to facilitate the bringing of a cause of action and a claim, in that instance it would be unusual to hold that independent entity liable for costs. The reality, as Senator McDowell will know, is that in the vast majority of instances, there may be an order for costs made in favour of the Internet service provider but a stay will be put on it pending the conclusion of the action or, alternatively, costs will be reserved.

Whatever the situation, I am leaving a discretion to the court in this instance for the court to determine what order should be made in respect of costs. That discretionary power that the court has exists at present in the High Court under the Norwich Pharmacal order where there is no statutory regime in place. I suspect, in respect of most of those Norwich Pharmacal applications, that either the costs are reserved or the Internet service provider gets its costs but a stay is put on them. There is a logic in what is proposed in the legislation as it does not change the practical operation of Norwich Pharmacal orders as they exist at present in the High Court.

Another point raised by Senator McDowell in his amendment was that he objected to the fact that there is a provision, which is contained in the identification order, which says you will only get it if there is no other practical means to obtain the information sought. That is included for a very particular reason. The requirements in terms of there being no other practical means to obtain the information sought and the need to consider the rights of the anonymous poster and any relevant third parties are both intended to address the fact that an identification order application is essentially a request to an Internet service provider to hand over the personal data of its user without that user being in a position to make representations in respect of that decision.

It is also important to remember that these provisions are based on case law from the superior courts. The requirement that an applicant would have no other practical means of obtaining the information has been applied repeatedly by the courts and it has not been interpreted as a requirement that the application must be made as a last resort or that it is the only available means of identifying the anonymous poster. Similarly, the superior courts already adopt a practice of considering the rights of the alleged wrongdoer and, to my knowledge, they do so without requiring details as to the identity of that individual or entity in open court.

On the matter of good name, I have an obligation and the State has an obligation to vindicate the right to a good name, but the State also has an obligation to respect privacy rights and the other rights which may be adversely impacted by the granting of an identification order. Section 22 seeks to achieve a balance between these competing rights and obligations. It is worth not just categorising this as a David and Goliath-type application. I have no doubt there may be circumstances where another Goliath may seek an application by way of an identification order. There could be a circumstance where a very powerful business entity or a very large employer may seek to go to court to try to get an identification order against an employee or competitor that is putting information that is stated to be defamatory into the public domain. Therefore, there has to be a balance there and an ability for the court to recognise that it may not be appropriate to grant the order in some circumstances. That balancing of rights is important.

Senator McDowell also questioned what the discretion provided for in subsection (4) is designed to achieve. The purpose of allowing the court to retain discretion, even where the conditions set out in subsection (4) are fulfilled, is to recognise that situations might arise which the Legislature cannot account for and which can be appropriately dealt with by the exercise of a discretion by a court which has vast experience in balancing competing rights.

With regard to subsection (5), which provides a court with discretion to order an applicant to cover the costs incurred by an Internet service provider in responding to the application or in providing the information requested, Senator McDowell is correct to say that Internet service providers do not require their users to verify or provide their identity in order to avail of their services and that the liability of Internet service providers in respect of content appearing on their services differs from that of more traditional media, as I said earlier. Identification orders must not only address the State’s obligation to vindicate the right to a good name. They must also take account of privacy rights and property rights. If they do not, the provision risks being found unconstitutional.

Senator McDowell asked me to identify my intentions with regard to Report Stage amendments. As a result of the contributions of Senators, I will bring forward amendments on Report Stage in relation to section 11, which provides for defence of publication in the public interest, and section 13 in relation to the defence of live broadcasts. The amendments in respect of section 13 will address the points raised by Senators and clarify that a short delay in transmission will not impact on the defence.

I know Senators may not be satisfied with the full breadth of the Report Stage amendments I intend to bring. I have no doubt some Senators will bring Report Stage amendments as well. I have an objective to try to get the legislation enacted in the most appropriate fashion possible. It is important that we change the law on defamation as it exists at present. It can always be improved. My objective is always to try to balance the right to the good name with the right to freedom of expression. I think I have sought to do that as much as possible. The courts vigorously defend the good name of the individual. They also vigorously defend the right to expression. However, as everyone in this House will be aware, when it comes to the balancing of rights, all we can do is set out the architecture. It is then for the courts and witnesses before a court to determine where the balance should lie in terms of the determination of a claim where the competing interests of defamation and freedom of expression conflict.

I thank the Cathaoirleach. I have very much appreciated my time in Seanad Éireann on Committee Stage. It shows again the benefit of the Upper House and the deliberation it gives to important legislation.

I just want to say a couple of things to the Minister. I welcome his openness to further amendments to the Bill. However, in relation to section 22, whereas I take a good deal of what he says on board, I think he should consider that, from the point of view of the Davids facing the Goliath, this is a fairly frightening thing for an individual who is defamed anonymously. I ask the Minister to consider this very carefully. This individual does not know who has defamed him, by definition. He does not know whether the person is a mark for damages. He does not know, if he succeeds in getting his identification order, whether the whole thing will end up useless because the individual is not a mark for damages, lives in Timbuktu or whatever it may be. Applying for an identification order is, in one sense, an exercise in bravery on the part of somebody who is defamed. They do not know what or who they are dealing with. They do not know if money they put into even applying for the order is just money thrown away when the identity is finally revealed. That is why I ask the Minister to think really carefully before Report Stage about whether we are in the business here of making the Davids capable of going to their solicitor and saying they want to know who did this when they face a statute that says that, even if they succeed, the court can tell them to pay the Internet service provider’s costs.

I do not accept the proposition of a stay on the order or "pending the outcome of the case". That is no use. The Internet service provider will just say that even though it turned out the person was not a mark for damages, lived in Timbuktu or whatever it may be, it still wants its costs, it has an order for costs in its favour and the litigant can pay it for the effort they made to find out who was defaming them. I ask the Minister to think really hard about whether it is fair in these circumstances that the small person, the citizen who wants to defend himself or herself, faces these serious obstacles, which require resources and bravery to go to court to get justice.

Regarding amendment No. 27 in my name, I ask the Minister to look at the situation as to what happens if somebody is identified. How then does the victim of defamation actually prove the contents of an identification order? It is very difficult. If he or she is simply told by the Internet service provider that the person who posted is Mr. Joe Bloggs who lives in Liverpool, how do they then prove that? Does he or she issue proceedings against Joe Bloggs? Does he or she have to go to England to do it? If the publication takes place in Ireland, the obstacles are fairly significant. The complainant is then confronted with Joe Bloggs saying it was in fact his or her son, who is a bit of a wild fellow, who put that up. The complainant is left with no remedy whatsoever.

It is relevant from this point of view that it is not always just about damages. A person may want correction orders. They may want the publicity of saying that the allegation was false and a public acknowledgement through the court system that they have been defamed. If the complainant ends up with an identity order which is as opaque as they may well turn out to be, getting a correction order against nobody or against the wild son, or faced with a denial by the poster that he or she personally put that up, it is going to be very difficult. What I am trying to do is to bring justice to the ordinary person. I accept the proposition, especially when we see President Trump threatening the BBC – he has increased his claim for damages from $5 billion to $10 billion - that there are plaintiffs and there are plaintiffs. I am talking about people about whom really scurrilous things appear on social media and who really do need some kind of protection.

The other thing, and this is the important part, is I am thinking of the person who is tempted to post defamatory matter about somebody else anonymously. If we are not going to have a system that frightens that person and makes them think they may be caught, identified and sued, if they do not really fear that and instead think the person they defamed is going to have to spend €2,000 or €3,000 to find out who they are and instruct a solicitor and a barrister in the Circuit Court and the High Court or wherever they want to do it, if there is no real fear in the anonymous defamer’s mind, then all of what we are doing here is slightly academic. I ask the Minister to bear those points in mind. Section 22, as it presently is, is attempting to improve things. I fully accept that, but I do not think it goes far enough.

One last point occurred to me between the last day and today is that, if there were a lengthy Norwich Pharmacal or statutory identification proceeding which took months, which may well happen, the Minister might consider also adding into section 22 that a court, when granting an identification order, can extend the two-year absolute time limit for defamation, because the clock starts ticking the day the first post is made. Many people may not know that they have been defamed and they may find it out late in the day, and if they then have to face a contested identification order procedure, they may find that the time has run out for their proceedings. I ask the Minister to consider adding into section 22 that the time limits provided in the 2009 Act, albeit there is already a power to extend, can also be extended further if the court considers that that is required in the interest of justice.

The point Senator McDowell is making is on the basis that we are going to have a very large, powerful Internet service provider which is the respondent. The reality is that is correct and probably will be the case. However, I have to look at it completely legally and neutrally, and whether I like it or not or he likes it or not, we have an entity, the Internet service provider, that does not have legal liability for the defamatory publication. In many respects it is similar to a financial institution against whom somebody is looking for a non-party discovery in proceedings that do not involve the financial institution. If I am to put in place a rule which demands that orders be made against that financial institution in terms of the non-party discovery or, in this instance, against the Internet service provider for making an identification order, it is very well-resourced and will say it is a serious challenge to fairness. It is a challenge to hold an entity that has no legal liability responsible for legal costs and proceedings where it is not a defendant. I have to be conscious as to how that will play out.

What is in the legislation is sufficient. I will consider what Senator McDowell said. I have no difficulty doing that, but the provision that is contained within this is a discretionary statutory power that the court has in respect of the making of a cost order in favour of the Internet service provider. It does not demand that the costs of the Internet service provider be paid. It simply says that, when making an order, the court can order that an applicant pay any or all the costs of the relevant Internet service provider in relation to the application. It is simply putting into a statutory scheme what is there at present in common law in the High Court when a Norwich Pharmacal order is being applied for. I have to be careful about imposing further obligations on an Internet service provider which does not have any legal liability for defamation in the legislation.

Another point Senator McDowell raised was publication and how one proves it. However, the likelihood here is, to use Senator Craughwell as an example, Senator Craughwell has been defamed by something online. He is trying to find out who the individual is. He will write to the Internet service provider and it will write back to him and say it cannot give him the information about the identity of the person until such time as he gets an order from the court. He goes to the Circuit Court and gets the identification order from the court. The Internet service provider then complies with it. Senator Craughwell then finds out that the person publishing the defamatory posts is Joe Bloggs. Once he gets that information, Senator Craughwell then has to write to Joe Bloggs and say he or she has defamed him and he has got an identification order from the Circuit Court that has identified that he or she is the individual behind the defamatory publication about him. Whether or not the claimant goes through that procedure or a different procedure, Joe Bloggs is entitled to say he or she is not the publisher. When the claimant issues their proceedings, they will say he is the publisher. He may deny or admit publication, and that can happen regardless of whether there is an identification order. However, if the claimant does then go to the court with the identification order, he or she is in a position whereby his or her solicitor can give evidence in court that they got this identification order and it identified that Joe Bloggs is the publisher. That will be of assistance in proving to the court that the publisher is, in fact, Joe Bloggs. One cannot delineate absolutely that the person identified is going to automatically be the publisher.

That cannot be done because it is for the court to determine whether, on the balance of probabilities, Senator Craughwell has proven Joe Bloggs is the publisher. With the benefit of an identification order and depending on other circumstances of the case, that will, on the balance of probabilities, enable you to prove the identity of the publisher.

I will give consideration to it but I do not think putting a rule as to admissibility of evidence into an Act is a good idea. We are better off sticking to the rules of evidence as they exist at present.

Senator McDowell stated there could be a lengthy Norwich Pharmacal application but in my understanding of these applications, in general, the respondent to a Norwich Pharma order simply wants the protection of a court order, provided they are not the defendant as well. Where an identification order is sought against a non-party entity before the courts, the objective in general is to get the protection of a court order and comply with it, so there are not lengthy applications for those orders.

I note what the Senator said about the two years - or perhaps it is one year - in terms of the Statute of Limitations when it comes-----

It is one year, and it can possibly be extended to two.

The Statute of Limitations is one year but it can be extended to two. The type of identification order granted in the Circuit Court will be granted, hopefully, on an immediate and summary basis, on the basis that the Internet service provider will turn up and say, "Yes, if we get an order, we will comply with it." That is how it is operating in the High Court and how it should operate.

I thank Senators for their contributions.

I move amendment No. 21:

In page 22, line 11, after “is” where it firstly occurs to insert “seriously”.

I move amendment No. 22:

In page 22, line 17, to delete “provider, and” and substitute “provider.”.

I move amendment No. 23:

In page 22, to delete lines 18 and 19.

I move amendment No. 24:

In page 22, line 20, to delete “may” and substitute “shall”.

I move amendment No. 25:

In page 22, to delete lines 32 to 37.

I move amendment No. 26:

In page 22, to delete lines 38 to 42 and substitute the following:

“(5) The court may order that the relevant internet service provider 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.”.

I move amendment No. 27:

In page 24, between lines 9 and 10, to insert the following:

“(7) In any defamation proceeding, relevant information supplied by a relevant service provider shall be admissible without further proof where the court so orders, if it is supplied to an applicant upon request or on foot of an identification order.”.”.

When is it proposed to take the next Stage?

Next Tuesday.

Next Tuesday, but if Senators are here next Tuesday, I will be mightily surprised. Is that agreed? Agreed.