Social media may be fined for allowing posts prejudicial to trials

Social media giants such as Twitter and Facebook could be fined if they fail to take down posts likely to prejudice a criminal trial.

Proposed legislation to be put before the Dáil today, by Fine Gael’s Josepha Madigan, will seek to push responsibility for such posts away from the individual poster and onto the social media companies hosting the comments.

The bill comes just months after the Jobstown trial, in which six people were cleared of charges in relation to the alleged false imprisonment of former tánaiste Joan Burton. The issue of social media commentary on the trial made headlines while, in advance of that trial, Judge Melanie Greally said the existing contempt of court laws were “hopelessly inadequate” to curb such commentary.

The proposed legislation aims to modernise and clarify the existing contempt legislation, by placing it on a statutory footing.

Calls for changes to the contempt legislation have been made by the Law Reform Commission as far back as 1994, and as recently as last July by former Chief Justice Susan Denham.

Speaking in advance of the legislation going before the Dáil, Ms Madigan, who is a solicitor, said the bill would provide for suppression and take-down orders for comments that may prejudice a trial, but said that it would also seek to strike a balance.

“Again, it is something that was proposed by the Law Reform Commission in New Zealand,” she told RTÉ’s Seán O’Rourke.

“It’s important to strike a balance between the right to free speech and the integrity of our justice system. It is a difficult balance. I think online people are entitled to have their opinion, but, if it is specifically designed to try and prejudice a criminal trial, then I think there is a question to be asked... there are, obviously, defences in relation to this bill, in terms of normal comment and comments that aren’t prejudicial, and that’s ok, so there has to be a balance.”

Eoin O’Dell, associate professor of law at Trinity College, said he supported the bill “in principle”, but said the timing “could be better”.

“The situation is that, after the Chief Justice made the comments, she put a group together to examine precisely this issue and came back with recommendations for reform,” he said.

“The Law Reform Commission did look at this issue in 1994, but they’re looking at this issue again. So, in other words, there are already two full-scale reviews ongoing and it would be much better to wait until those reviews had completed, or to feed into those reviews, rather than trying to pre-empt them.”


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