Gary Gannon (Dublin Central, Social Democrats) | Oireachtas source

I move amendment No. 257:

In page 116, line 39, after “any” to insert “wilful”.

This involves a simple matter of phraseology. The regulatory framework provided within this Bill is strong and well-intentioned. However, I have an issue with the specific language under Chapter 5, section 139ZT of the Bill regarding a notice to end contravention, which outlines a criminal liability for senior managers and directors of companies where they fail to intervene in removing harmful online content. I believe Digital Business Ireland has written to all of us on this specific language issue. This section of the Bill provides that a senior manager or director can be held liable for any offence proven to be committed by "any neglect" rather than "wilful neglect" of their duties. This has the potential for some very severe prosecutions for what potentially could be an unintentional error. As a result of this offence, a director or senior manager would be liable for fines of up to €500,000 or ten years in prison. I put forward that the term "any neglect" in this section of the Bill should be replaced by "wilful neglect", which would refer to negligence on the part of a senior manager or director that is deemed to be intentional or reckless and reflects a "couldn't care less" attitude. The use of "wilful" versus "any" neglect in this section underlines the seriousness and strengthens the nature of the offence committed.

Looking at case law and other legislation addressing crimes of a serious nature such as this, we will not see the term, "any neglect", used in place of "wilful neglect". The Minister might clarify if that is the case. For example, wilful neglect is the standard applied in respect of corruption offences under the Criminal Justice (Corruption Offences) Act 2018. It is also there in the context of aiding and abetting of certain fraud offences under the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021, and in references to certain money laundering or terrorist financing offences under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, to name but a few. By inserting "any" instead of "wilful" neglect into this important legislation we are therefore moving away from Irish law. We should question why this departure is taking place in this instance.

There is a distinct difference between the two phrases. While there is a lack of specific Irish case law that underlines this distinction, the UK Court of Appeal distinguished "any neglect" from "wilful neglect", stating that wilful neglect requires the defendant to be aware of the breach and still turn a blind eye. On the other hand, "any neglect" could relate to an entirely inadvertent error on the part of a director or senior manager. This distinction was also noted by the Law Reform Commission of Ireland in chapter 9 of its report, Regulatory Powers and Corporate Offences. Significantly, the Law Commission for England and Wales in a similar paper, Criminal Liability in Regulatory Contexts, also concluded that the "any neglect" standard should never be used for serious criminal offences.

It is also important to emphasise that this offence will place a category one offence in the Bill, which is one of the most serious offences contained within it. Individuals should not be exposed to such offences due to "any neglect" on their part, rather, deliberate or wilful neglect must take place.

I am conscious that I would like to see future-proofing of the Bill, especially for online social media companies. For example, Meta is now building what it describes as the metaverse, a concept many of us cannot even understand. If we strengthen this Bill to ensure that the phrase "any neglect" rather than "wilful neglect" is in it, we could tie up our courts for years with philosophical debates about what constitutes neglect rather than wilful intent. I want to create a scenario where there is not a get-out-of-jail free card for social media companies that would have volumes of lawyers behind them debating the philosophical concept of "any". Let us strengthen the Bill by including intent. If a social media company and its directors, for example, become aware of an issue, they have to enforce and act upon it. However, we are talking about this Bill being with us for the next ten, 20 or 50 years, potentially. We do not know what these technologies look like, but we know what intent looks like. That is why I want to remove "any" and include "wilful". Somebody should be held accountable by the courts for an act they are responsible for but as we move to future technologies we are not aware of, we cannot legislate for that yet. That is why intent must be placed in the Act. I would love to hear the Minister's response.