Jim O'Callaghan (Dublin Bay South, Fianna Fail)

I move amendment No. 14:

In page 18, between lines 2 and 3, to insert the following: “Circuit Court identification order

The Principal Act is amended by the insertion of the following section after section 44:

“45. (1) The Circuit Court (in this section referred to as the ‘court’) shall have jurisdiction to hear and determine an application in accordance with this section.

(2) An application shall be made by an applicant—

(a) in good faith, and

(b) on notice to the relevant intermediary service provider concerned.

(3) Upon an application, the court may, subject to subsection (4), make an order (in this section referred to as an ‘identification order’) requiring a relevant intermediary service provider to provide to the applicant such relevant information as the court may specify in the identification order where the court is satisfied that—

(a) a statement was published, or caused to be published, on an information society service by means of an intermediary service provider by a person or entity (in this section referred to as an ‘anonymous publisher’) whose identity is unknown to the applicant and whose identity is not readily ascertainable on the face of the statement or from other information available to the applicant on the information society service,

(b) a claim by the applicant in any defamation proceedings against the anonymous publisher that the statement is defamatory is likely to succeed at trial,

(c) the relevant information is necessary to enable the applicant to bring defamation proceedings against the anonymous publisher to whom the relevant information relates,

(d) the relevant information is likely to be in the possession of the relevant intermediary service provider, and

(e) the applicant has no other practicable means of obtaining the relevant information.

(4) A court may—

(a) make an identification order only where it considers that—

(i) it is in the interests of justice to do so, and

(ii) the interests favouring disclosure of relevant information outweigh those against,

having regard to the rights and obligations of the applicant and those of the anonymous publisher and any third parties who are reasonably likely to be affected by the order, and

(b) make the order subject to such conditions as it considers appropriate, which may include, in relation to the relevant information disclosed to the applicant by the relevant intermediary service provider in accordance with that order—

(i) terms restricting the use of the relevant information so disclosed to the bringing of defamation proceedings against the anonymous publisher, and

(ii) an undertaking by the applicant not to use the relevant information so disclosed other than to bring defamation proceedings against the anonymous publisher.

(5) The court may, whether or not it has made an identification order and where it considers it appropriate to do so, order that an applicant pay any or all of the costs of the relevant intermediate service provider in relation to an application and the costs resulting from the making of any identification order.

(6) In this section—

‘application’ means an application under this section for an identification order;

‘defamation proceedings’ means—

(a) an application under section 33 for an order to prevent the publication of an alleged defamatory statement,

(b) a defamation action, or

(c) a claim for other relief under this Act in respect of an alleged defamatory statement;

‘information society service’ means a service normally provided—

(a) for remuneration,

(b) at a distance, that is to say, that the service is provided without the parties being simultaneously present,

(c) by electronic means, that is to say, that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, and

(d) at the individual request of a recipient of services, that is to say, that the service is provided through the transmission of data on individual request;

‘intermediary service’ means one of the following information society services:

(a) a ‘mere conduit’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network;

(b) a ‘caching’ service, consisting of the transmission in a communication network of information provided by a recipient of the service, involving the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients upon their request;

(c) a ‘hosting’ service, consisting of the storage of information provided by, and at the request of, a recipient of the service;

‘intermediary service provider’ means a provider of an intermediary service;

‘relevant information’, in relation to an anonymous publisher, means information as to the identity, address or other contact information of the anonymous publisher;

‘relevant intermediary service provider’ means an intermediary service provider that provides the intermediary service by means of which a statement referred to in subsection (3)(a) is published, or caused to be published, by the anonymous publisher.”.”.

I outlined on Second Stage a section I thought was missing from the Bill, which was that it contained no statutory mechanism to provide for a person to seek what is known as a Norwich Pharmacal order. Those orders are necessary in circumstances where a person has been defamed online but is not able to identify the publisher of the defamatory material. In such circumstances, at present, it is necessary for the defamed individual to go the High Court to seek a Norwich Pharmacal order that can then be served on the social media provider. After that, it can be possible for the individual who has been defamed to identify the person responsible for the publication. Amendment No. 14 seeks to address an issue many people raised. It provides that the Circuit Court will have a statutory jurisdiction to make identification orders in relation to defamation matters. Such orders, known as Norwich Pharmacal orders, are currently available through the High Court. However, obtaining them can be costly. Defamation actions can be heard in the Circuit Court but until now it lacked power to grant identification orders. This amendment has no impact on the existing powers of the High Court to grant identification orders. This amendment inserts a new section 19 into the Bill, which will insert a new section 45 into the Defamation Act 2009. The new section empowers the Circuit Court to hear and determine an application for an identification order. The applicant must make the application in good faith and note it to the relevant intermediary service provider, a term defined in the section, and is based on existing definitions in the digital services regulation. It requires an intermediary service provider to provide an applicant with information in its possession relating to the identity of an individual or entity who had posted defamatory material about the applicant online anonymously or under a pseudonym. Section 45(3) identifies requirements which the court must be satisfied have been met in order to grant the application. They include that the claim by the applicant in any defamation proceeding against the anonymous publisher is likely to succeed at trial, the relevant information necessary to bring defamation is likely in the possession of the ISP and the applicant has no other practical means of obtaining it. In addition, section 44(4) outlines the need to consider interests of justice and right and obligations of the applicant, anonymous publisher and any third parties reasonably likely to be affected by the order.

See this speech in context