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

I move amendment No. 34:

In page 19, line 33, to delete “intermediate” and substitute “intermediary”.

These amendments make changes to the definitions contained in the proposed section 45 of the Defamation Act 2009 introduced by section 19 of the Bill. Section 45 provides the Circuit Court with jurisdiction to make identification orders. This allows a person who has been subject to defamatory comments by anonymous posters online to seek information identifying those posters. Amendment No. 34 corrects a mistaken reference to an "intermediate" rather than an "intermediary" service provider. Amendment No. 35 adds wording to the existing definition of "information society service" to clarify that although such services only include those provided for remuneration, this remuneration may be received by the service provider either directly from the user of the service or indirectly through advertising or other means. Amendment No. 36 adds a further definition of "recipient of the service", a term used in the existing definition of "intermediary service provider". The definitions of "information society service" and "intermediary service provider" align with those contained in EU law instruments, most notably the Digital Services Act.

When looking at the amendments we have just discussed, particularly those dealing with section 45, these really take into account the fact that we are going to see an opportunity here for people being defamed online to bring applications before the Circuit Court to secure identification orders. We have been talking here about defamation in the context of defamation taking place in what is the traditional format, where the media - a newspaper or broadcaster - publishes something false about an individual. Fortunately, that happens very infrequently. The vast majority of defamation that takes place now is online, where anonymous people publish to a large number of individuals defamatory material about an identifiable person. In most instances, it is extremely hard for the person defamed to get any remedy because it is not possible to identify who the publisher is and it is difficult in the context of trying to hold social media companies liable for it. The real benefit of this legislation is that we now have a statutory mechanism provided in the legislation in section 45 for the purpose of enabling somebody to go to the Circuit Court and to apply for an identification order that will compel a social media company to tell them the identity of the account holder who has published the defamatory material.

Deputy Carthy spoke earlier about members of his party being defamed. No political party in this House - and it certainly does apply to Fianna Fáil - has not been defamed. I think it is fair to say, however, that politicians should have a thick skin when it comes to publications put out there in the traditional media. We should perhaps also have a thick skin when it comes to false and defamatory comments made about us online, although that is a matter for each individual politician. I refer to a situation, however, where egregious defamatory statements are made about individuals, falsely accusing them of the most heinous and serious offences.

That does merit a statutory response. The constitutional right to one's good name means something. Sometimes I am concerned that the debate on defamation focuses very much on the right to freedom of expression and the organised campaign that can be put forward by the media, as it is entitled to do. However, as legislators, we must take into the account the individual - the citizen - who does not have an organised group campaigning to ensure his or her right to his or her good name is protected and defended. That is why it is so important that provisions like this are included and that is why it is so important that the Defamation Act respects the balance between conflicting rights: the right of an individual to his or her good name, and the right of an individual or corporate entity to freedom of expression. Our job in the Oireachtas is to try to balance those rights. I suspect that the most egregious development in the world of defamation in the past 100 years is the development of social media and the ease with which individuals can make false defamatory statements about persons who might not even be well known - private individuals who have no recourse. I hope this statutory provision will give them some recourse.

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