Ms Cliona Richardson:

I thank the Chairman and the committee for the invitation to attend and discuss this very important issue. I am joined by my colleague,Detective Chief Superintendent Barry Walsh, who is responsible for our Garda National Cyber Crime Bureau.

While not wishing to encroach on the responsibilities and remits of the other State agencies represented here, I must point out that An Garda Síochána continues to have concerns regarding the use of misinformation and disinformation on social media platforms. Many times we have seen the influence of false or misleading information and the effect this can have on our communities, requiring a policing response.

An Garda Síochána has in the past had to resort to issuing statements regarding inaccurate information circulating online. Most recent examples include false claims that properties are to be used as accommodation centres and are subsequently targeted in arson attacks. An Garda Síochána has commented publicly on the challenges of the circulation of completely inaccurate information about particular properties and on the potential for serious harm arising from this, including a risk to life of occupants, such as construction workers and-or security persons who could be inside any such property. Gardaí are continuing to investigate a number of arson attacks and attempts to damage buildings that were falsely rumoured to be intended to house migrants, as well as some buildings that were in fact intended for use as refugee accommodation. An Garda Síochána condemns in the strongest terms any such criminal activity and will fully investigate such activity in every circumstance.

Another recent example includes the allegations of a sexual assault on a child by a number of men residing at an accommodation centre in Kildare, which were completely untrue. These false rumours were widely circulated and were shared by a number of agitators. Following the posting of comments on social media, a group of protesters gathered at a hostel housing migrants in Kildare. During that protest, gardaí were verbally abused and targeted with fireworks and other missiles.

An Garda Síochána continues to receive concerning reports of online abuse from members of the public, including politicians, celebrities, journalists and gardaí, which were instigated by disinformation means. These reports generally include posts which are abusive and-or threatening or harmful to the individual. Each report is fully investigated by An Garda Síochána for criminal offences. These offences can include offences relating but not limited to: the Harassment, Harmful Communications and Related Offences Act 2020; the Non-Fatal Offences Against the Person Act 1997; the Prohibition of Incitement To Hatred Act 1989; the Child Trafficking and Pornography Act 1998; the Criminal Justice (Theft and Fraud Offences) Act 2001; the Criminal Justice (Offences Relating to Information Systems) Act 2017; and the Criminal Damage Act 1991.

As more and more social media platforms transition towards the use of end-to-end encryption, it is becoming increasingly difficult for law enforcement and prosecution agencies to process requests for disclosure on accounts used to post abusive or hatred-inciting disinformation online. The end product of this focus on privacy by social media companies is that the perpetrator of crime is afforded more protection than the victim with a ready-made platform to pursue their activity, or spread disinformation, with significant access barriers created for them to hide behind.

It is respectfully submitted that any successful response to the spread of disinformation, via social media or any other online communication sources, can only be achieved as part of a combined societal response, which includes law enforcement agencies, Government agencies and social media platform providers.

Without this joint approach, any response is highly likely to be largely reactive and limited in its effectiveness. At the same time, part of any response must be built on an appropriate reporting and restricting response from the providers and the public who encounter incidents of disinformation that are clearly identifiable as such.

Proactive physical monitoring of social media platforms will not always be a possibility for law enforcement agencies, including An Garda Síochána, given the variety and volume of messages and posts. Ongoing meaningful engagement with social media platforms is essential if the policing response to disinformation is to be effective, ensuring timely and appropriate proactive reporting and that disinformation content removal processes are in place and observed. At the same time, it is imperative that An Garda Síochána continues to harness its positive relationship with the public to foster an environment of engagement and reporting in which users are willing and eager to report incidents of such cases.

In some cases, incidents of disinformation that have been spread via social media and clearly constituting fake or false news with a motivation to confuse, create division or sow seeds of public protest have acted as a catalyst for physical acts that been criminal in nature. From the perspective of An Garda Síochána, there is an inherent difficulty in addressing such disinformation in advance of that physical manifestation. This is because those postings may not be illegal in terms of content, despite it clearly being disinformation.

Removal of material is most commonly achieved via a request to the service provider. Even in circumstances where the post or message is disinformation, it may not actually breach any law. In circumstances where it does breach a statute, a Garda investigator may seek removal, which can be achieved by submitting a written notice or request. Compliance with any such request is entirely a matter for the applicable service provider and An Garda Síochána has no power of compellability that is immediately available for use.

From a criminal investigation perspective, some limitations can arise when it comes to An Garda Síochána’s ability to investigate sources of disinformation or false postings on social media. In order for An Garda Síochána to initiate a criminal investigation, there must first be a criminal offence in this jurisdiction or an element of an offence that is being investigated here so that the member can apply to the court for an order compelling disclosure of relevant evidence, and this is not always the case.

Another recurring difficulty within engagement between An Garda Síochána and social media service providers is the preservation and disclosure process around seeking account and content data from social media platforms used to post disinformation or illegal and abusive content online. While many of the providers have effective online methods for requesting preservation of accounts, serving court issued orders to disclose and receiving the content in response, others do not, or the rules imposed are subject to regular change. Most service providers will state that account content data can only be accessed via legal applications within the jurisdiction where they are headquartered. This necessitates use of the mutual legal assistance process, which can delay access to evidential information for up to 12 months or more.

Encryption is becoming an increasing difficulty when it comes to disinformation. Many of the social media platforms now operate end-to-end encryption and state that they cannot provide copies or content data for accounts.

All of the aforementioned present difficulties for An Garda Síochána when it comes to securing removal of posted disinformation and, when required, in investigating offences arising. However, they are not insurmountable and do not deflect from the organisational enthusiasm to ensure such cases are robustly investigated, to work closely with service providers, the global law enforcement community and the public to monitor content, gather intelligence and, in every circumstance where the option is available, to effect the removal of disinformation posted to social media accounts and platforms.