Dr Eoin O'Dell

Last week, in his column in The Irish Times, Michael McDowell took social media platforms to task for shirking their responsibilities on defamation. His analysis of the legal issues was, uncharacteristically, incomplete. Even so, he has a golden opportunity to do something practical to address the problem.

First, the legal issues. He provides the usual bromides that the Constitution provides for a balance between freedom of expression and the right to a good name, and that the platforms’ seeming impunity threatens to upend that balance. However, he never quite states what the balance is.

Nor does he address the point that an alternative position, such as the one he implies is being struck by social media platforms, could also satisfy the constitutional balance. Merely to state that there is such a balance is not to make it in an individual case, and McDowell fails to do so in his piece.

Moreover, the current position is largely dictated by EU law. A Directive of 2000, implemented in Ireland in 2003, provided that social media platforms are not liable in damages for hosting defamatory content of which they have not been made aware. An equivalent US provision, introduced in 1996, has been described as “the twenty-six words that created the internet”; another US equivalent, introduced in 1998, is here.

In all three cases, to ensure that the then-nascent internet was not stifled at birth, to promote the continued development of the internet, and to remove legal obstacles in the way of this objective, the law protected platforms from suits based on user content. So, there were good reasons for where the balance was struck at the turn of the millennium.

This does not mean that states cannot do more at national law; and it certainly does not mean that they cannot seek amendments to EU law. This is where McDowell can do something practical to address the problem. For he is not only an Irish Times columnist, he is also a Senator, a legislator. And since he has identified a problem with legislation, he could legislate to solve it.

He already has an opportunity. When Minister Frances Fitzgerald announced a review of defamation laws in 2016, one of her stated concerns was to ensure effective protection against damaging online comments. That was one of the key themes when Minister Charlie Flanagan hosted a symposium in 2019 as part of that review process.

When the report of that review was published in 2022, it duly recommended a series of reforms against online platforms, which were welcomed by Minister Helen McEntee. When a draft bill was subsequently published the following year by the acting Minister for Justice Simon Harris and Minister of State James Browne, one of its stated aims was to “improve the ability to tackle online defamation”. Later that year, the Joint Oireachtas Committee on Justice recommended that those provisions be strengthened.

All of these proposals were directed to making it easier for people to bring defamation to the attention of the platforms, and to impose greater obligations on platforms responding to them. If the platforms did not do so expeditiously, it would then be easier to make them liable in damages.

By this point, there was an unbroken line of ministers for justice and other politicians supporting the position taken by McDowell in last week’s article. Then something odd happened. When the Defamation (Amendment) Bill 2024 was published, the provisions relating to online publication had entirely disappeared, without explanation or comment by Minister McEntee and Minister of State James Browne when they launched the bill, even though they both previously pointed to the need to tackle online defamation as an important aspect of the reforms.

As the bill now travels through the Oireachtas under the stewardship of Minister O’Callaghan, these provisions show no sign of coming back, even as other omissions have belatedly been reintroduced. When the bill was at Committee Stage in the Seanad last July, Senator McDowell co-sponsored five amendments, but none on this issue. No other Senator proposed amendments on this issue either.

But all is not lost. The Committee Stage was not completed in July. Nor was it completed yesterday. When it resumes, even if it is too late to propose amendments at this stage, he can still point to the absence of these provisions from the bill. Then, at Report Stage, as amendments arising out of proceedings in Committee, he could propose their reintroduction. Rather than re-inventing the wheel, and for the reasons given in the 2022 report, he could simply propose Heads 32 and 34 of the 2023 draft Bill, which are the provisions that disappeared from the 2024 Bill.

Basically, this is asking the Department of Justice to do what it said it was going to do in 2023 for the reasons it itself gave in 2022. Of course, there are limits to what these amendments can do, imposed by EU law. But he can at least get the ball rolling.

Others can pick up that ball and run with it to Brussels. There is a political consensus that online defamation needs greater regulation. Any Irish proposals to amend EU law to address these issues could be pushing on an (at least partly) open door in Brussels. The Commissioner for Justice, Michael McGrath, has specific responsibility for countering online disinformation, in particular during elections; and he is determined to ensure that social media platforms must respect EU rules.

So, how about it, Senator?

• Eoin O’Dell is a Fellow and associate professor of law in Trinity College Dublin. This is a lightly updated version of a post that first appeared on his Cearta.ie blog.