Catherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

As the Deputy said, this amendment seeks to replace the words “any neglect” in the phrase “the consent or connivance of, or to have been attributable to any neglect” in the provisions for senior management liability, where a provider of a designated online service commits an offence for failing to comply with a notice to end a contravention.

I understand that some industry stakeholders have raised concerns that the liability standard of “any neglect” is too low and have sought to replace it with “wilful neglect”. I cannot accept this amendment for a number of reasons. It is important to note that the senior management liability provisions in the Bill can only be triggered as part of the following series of steps: an authorised officer investigation has been carried out; coimisiún na meán has determined that a contravention is occurring; the findings of an coimisiún have been confirmed by a court; an coimisiún has determined that a contravention is still occurring and has issued a notice to the provider of the designated online service to end the contravention; the provider of the designated online service has failed to comply with the notice and is being prosecuted for the offence by the Director of Public Prosecutions; and the Director of Public Prosecutions, independently to an coimisiún, seeks to prosecute a director or senior manager under the secondary liability provision. In this context, I think “any neglect” is appropriate. It was provided for in this way in light of, on the one hand, the extensive financial sanctioning powers in the Bill and, on the other, the need to provide a particular balance in a Bill that deals with media, user-generated content and fundamental rights such as freedom of expression.

For context, I understand, and the Deputy raised this matter in his contribution, there are almost 1,500 references to the same liability standard in Irish law so this is not unique. In this Bill, in fact, the circumstances provided for wherein senior management liability may be triggered are quite narrow. Recent examples of its usage include the sanctions on Russia in light of its illegal invasion of Ukraine, building regulations, protected disclosure legislation, food safety regulations, domestic violence law and childcare laws.

The Deputy referenced the UK's Law Commission report, but Ireland's Law Reform Commission report, Regulatory Powers and Corporate Offences, stated that this specific form of secondary liability "does not necessarily result in undue harshness to a defendant, particularly where in a corporate setting the processes and procedures required to meet the standard of negligence are within the peculiar knowledge of the senior managers and comparable agents".