Malcolm Byrne (Fianna Fail) | Oireachtas source

I entirely understand there are legal difficulties and accept that the level of proof required in a criminal case to prove something beyond reasonable doubt is always going to be the case with regard to any criminal charge. I am afraid I have to respectfully dispute the Minister's assertion that this would be a matter of choice. There is not a barrier, as I read the legislation, that would prevent an coimisiún from pursuing its standard case and expecting somebody to be able to co-operate with its direction and codes or, if there is a failure to comply with the codes, from taking action on foot of that or if it discovers evidence that there has been what we would call a criminal breach in terms of adhering to deal with some of the online harms.

I draw a parallel with environmental legislation. If a factory was polluting a river and the EPA investigated and an order was made against the factory, if the factory continued to pollute, the EPA could take action against the factory. If the EPA subsequently discovered that the director of that company was told that a course of action was going to lead to the pollution of the river and the director decided to go ahead, does the Minister honestly believe the director of the company should get away with that?

This is what we want to happen with the social media companies. If a social media company makes a decision and the commission investigates and discovers the code is being breached, and gives the company an order, the company may comply with the order or it may not. There might be a need for a follow-on order. An coimisiún can take action in those circumstances. However, if it discovers that the director of the social media company took a deliberate decision to allow an algorithm to roll out simply because it could make a lot more money, even though the director knew it was in breach of the codes, that means the individual is not responsible. Criminal prosecutions are always difficult but it is not impossible. It is about trying to ensure that within the company, somebody takes responsibility for what happens. All the evidence is there. There have been numerous whistleblowers. I refer to the excellent book, An Ugly Truthby Sheera Frenkl and Cecelia Kang, two New York Timesjournalists.They talk about how Facebook was aware of a series of evidence about Russian interference in the American elections and genocide in Myanmar, yet it failed to take action. This is not a case of discovering something and it being brought to the attention of the social media platform. A director of the company, the person in charge of the design or algorithm, or the person named as being responsible for online safety, allowed the creation or perpetuation of an algorithm or platform that allows for online harm. We all want this Bill and the commission to succeed, but there are the same challenges that we have seen with data protection, which is not taken sufficiently seriously by certain companies, which worries me. In two or three years, when the commission is up and running, we want directors in companies to tell engineers, when designing an algorithm that the company is about to roll out, to ensure that it does not allow the creation of online harms. If the only fear is that the company might be fined, that will not be a priority. If people can roll out an algorithm that makes €1 billon and the risk is 10% of that, they will not be worried because it is a profit of €900 million, but if somebody is held personally responsible, then action can be taken.

I do not doubt that proving a criminal case is difficult, but the same arguments have been rolled out by pharmaceutical companies which were responsible for the opioid crisis in the USA and by tobacco companies, historically. We have to ensure that people will take responsibility and be held to account. We have had good engagement with the Minister's officials. We are happy to discuss this further but we have to ensure that the companies take responsibility. As Senator Cassells said, we have been debating this for over a year. Many of the social media platforms engage in correspondence. As soon as we put forward this suggestion, every single Government Minister got a letter expressing concern about what we were proposing. Pressure was applied to Senators due to the potential impact of this. This would mean that companies would finally take online safety seriously. They are not afraid of huge fines, but there is fear when somebody will be held responsible.

We all want to solve this problem but until somebody in the company takes the responsibility seriously and there is a change in culture, we will not see a change. I support the individual complaints mechanism but I do not believe it will work unless we have company change. We are happy to engage earlier but I ask the Minister for the opportunity to sit down with her officials to discuss this between now and Report Stage.