Malcolm Byrne (Fianna Fail) | Oireachtas source

I move amendment No. 191:

In page 87, between lines 32 and 33, to insert the following: “139QA.(1) Where an offence under any of the relevant statutory provisions has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to by, or is attributable to connivance or neglect on the part of, a person, being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that the doing of the acts by the undertaking which constituted the commission by it of the offence concerned under any of the relevant statutory provisions was authorised, consented to or attributable to connivance or neglect on the part of that person.

(3) In the event of a dispute as to the identity of the person responsible for the alleged offence, it shall be presumed, until the contrary is proved, that the person designated as responsible for online safety on the register as provided for in section 139J(2)(c), shall be the responsible person.

(4) Summary proceedings may be brought and prosecuted by the Commission in the case of an alleged offence.”.

I thank the Minister and her officials for being here and for engaging at various stages, both in the House and privately. This is a significant and substantial amendment to the legislation. We are happy to work with the Minister on the wording. The amendment seeks to ensure there is a change in culture within social media companies. While we are very much in favour of looking at a redress mechanism or dealing with the problems of online harm, redress arises after the online harm has taken place. This amendment seeks to ensure that individuals in the social media companies take responsibility for online harms.

We know that very heavy fines can be levied by an coimisiún on those who are guilty of causing online harm or breaching codes. The difficulty, as we have seen with data privacy breaches and so on, is that those companies will tend to write off those large fines as business costs. Indeed, we have even seen in the past few days that Meta is making allowances within its budgets for likely fines as a result of data breaches. We want to ensure there is a change in culture. We believe the only way we will see a change in culture is by making individual directors of the companies responsible.

This provision would not be applied in a very light way. It would apply where the company is made aware of problems with its algorithms or allows its algorithms to perpetuate online harms. The principle we want to apply is the same one that applies in health and safety, environmental, anti-bribery and white-collar crime legislation and even legislation the House discussed last week. It is about making individual directors responsible. The Minister will know that when it comes to health and safety or environmental legislation, we can slap big fines on companies, but many companies pay attention when they know that one or more of their directors may be held personally responsible for their company's actions.We have not tabled the amendment because we want to see social media bosses walking away in shackles. That is not the case at all. We do not wish to see anybody facing that. What we do want to see, however, is a change in culture. When it comes to measuring risk, somebody within a company should take responsibility and know his or her job is on the line as a result of this and that it is not just about a fine for the company. Therefore, we believe these measures are proportionate.

I totally understand that the legislation provides that if a person fails to co-operate with a direction of the commission, he or she could face criminal offences in those circumstances. That is welcome. What the amendment deals with is where whistleblowers or others within a company make clear to a director of the company that, as a result of the design of the algorithm or practice that is about to be rolled out on the social media platform, there is potential for online harms as specified within the legislation. The wording of the amendment is based on provisions in the Health and Safety Act. It is the exact same provision that would apply there. The person who is responsible for health and safety has to measure the risk. Therefore, if we are going to take online safety seriously, persons have to be held responsible.

The fear we have is that if it is simply a question of large fines, the companies in question will write that off. Unfortunately, there are certain social media companies that, frankly, in terms of the culture within the company, take online safety about as seriously as the US National Rifle Association takes gun safety. They sort of say they are committed to it, but the evidence is not there on the ground. We believe that by making sure a person takes responsibility for it, we will see a change in culture within the company. We are quite happy to consider amendments to the wording and so on. As I stated, the amendment is based on wording in the Health and Safety Act. We believe that, as a principle of this legislation, if we are going to take this seriously, somebody has to be held responsible.