Mr. Ronan Lupton:

I am sorry for saying this in this way but my view is the State needs to engage heavily in the central discussions that will happen on this in Europe. There are papers available, which I have seen, that deal with reforms to this area, such as good samaritan provisions for hosts that become aware of illicit or unlawful content, and take action but say they could be criminally responsible for it. That element to it exists. To answer the key point, there is a disincentive to a business that operates in the e-commerce host space to take steps because they say they do not know something is there until they are told and therefore they will take it down until a later stage. Deputy O'Callaghan was getting at this point earlier. If one reports content to a host provider one does not like or if there is a criminal offence such as hate speech, suddenly one is met with a response saying it will be assessed. One is not told under what law or regulation that assessment will be carried out, and the rejection comes with an explanation that the alleged offence has been assessed under the community rules. That is probably US law being applied but it could be someone sitting in India doing the assessment. Who knows where they are sitting. I said in my witness statement that there is a disjoint between the application of national law - and regional law in the European context - and what should occur versus what does occur. In Ireland, if one wants to take a defamation case and the assessment deems that under the community rules it is not defamatory, the next step is to go to the Four Courts to seek injunctive relief to have the defamatory material taken down or to disclose who posted it.

The Deputy asks how we can find the middle ground. It might be a duty of care situation where some form of legislation is deployed to bring it as close as possible to a provide for duty of care provisions as against the hosts without trampling on the defence and good samaritan provisions. Unfortunately, it is a case of assessing how long a piece of string is because some are in the Facebook category and others are newly developing businesses that want to be able to avail of these defences for whatever reason. I am not saying there is a criminal or a bad reason for that, but it might be they have no resource to moderate content and so forth. That is my take on it but it is a complex question.