Labour TD Alan Kelly has said individuals associated with tech companies should be held “criminally liable” in Ireland if their platforms fail to meet State requirements on illegal online content.
Speaking as Cathaoirleach of the Joint Committee on Arts, Media, Communications, Culture and Sport last week, the Tipperary North TD said firms would have to meet “our requirements” rather than the other way around.
Kelly told the committee that if companies did not meet those requirements over a period of time, based on an audit or on a percentage of failings, people would have to be held criminally liable.
“When they set foot in the EU, they will have to come to Ireland to answer questions,” he said.
“That is where this has to go because this is dangerous and illegal content. RTÉ, Virgin or any of the national newspapers could not do any of this. It all comes down to the bottom line of these companies not being publishers. That has to end.”
He said fines do not work.
“An e-commerce company was recently fined and their share price went up,” Kelly said.
“We accept that no moderation is perfect. It is impossible. It is utopian but there has to be legislation and regulations, and they have to have the necessary backbone where people will be held criminally liable because fines do not work.”
Fianna Fáil TD Peter ‘Chap’ Cleere pressed Coimisiún na Meán on whether it was satisfied with how Meta, TikTok and Google were taking down “harmful illegal content.”
The Carlow-Kilkenny TD asked Executive Chairperson Jeremy Godfrey if the regulator was “100% happy” that the companies were doing everything within their power.
Godfrey declined to give that endorsement.
“A regulator will never say whether they are happy,” he said.
Cleere said it was “very worrying” that the regulator was “failing to endorse the companies here” and asked whether Coimisiún na Meán lacked confidence in them.
Godfrey said he would not express confidence or a lack of confidence.
“We are a regulator,” he said.
“We have a legal process to follow. Our role is to assess whether regulated entities are complying with their obligations and take actions.”
Asked how many cases were under way, Godfrey said the commission had six formal investigations of its own and four being carried out jointly with the European Commission.
Those cases include questions over whether Meta, WhatsApp and Instagram are providing users with a real choice of recommender systems, as well as matters covering appeals against moderation decisions, age assurance and addictive design features.
Sinn Féin TD Joanna Byrne said the scale of that caseload did not match the harm being discussed.
The Louth TD said that if opening statements were taken at face value, people “could be led to believe that there is no problem with illegal and unsafe online content.”
“Herein lies the problem,” she said.
“We have a hands-off regulator and a Department led by a Minister who said that he does not believe social media companies should be fined.”
Byrne asked whether ten investigations constituted “taking action,” citing the Grok AI image scandal and TikTok challenges linked to deaths and serious injuries on Irish roads.
She said she had emailed Coimisiún na Meán in January and again in August urging action against X over Grok, and that it had taken nine months to open an investigation, with no fines issued.
“Is there a fear, a culture of fear, of taking on social media companies in Coimisiún na Meán?” she asked.
Godfrey said the commission was “absolutely independent and fearless.”
Byrne replied that it did not come across that way.
Godfrey said that in the Grok case the relevant duty was the obligation to assess and mitigate risks around non-consensual intimate image generation and distribution, an area led by the European Commission, and that the investigation was opened within weeks of the issue arising.
He said the regulator had to follow the law.
“It is a very litigious environment,” Godfrey said.
“If we do not follow the processes that we have to follow, we will just get challenged in court and we will not be successful.”
He said the commission was “extremely concerned” about a number of online harms, including those involving children and gender-based violence.
Fianna Fáil TD Malcolm Byrne asked whether the law should go further than existing sanctions for failing to co-operate with the regulator.
The Wicklow-Wexford TD said that if a company “knowingly allowed to go onto the market a product or service that would cause or encourage online harm, the director who signed off on that would be held criminally responsible.”
He asked Department official Tríona Quill whether it would strengthen the legislation if individual directors who “knowingly and wilfully” allowed such a product or service to be deployed could be held personally responsible.
Quill said any such move would depend on legal advice.
“There are lots of things we would like to do in legislation but we are not always able to do it unless we get legal advice to the effect they are permissible,” she said.
Byrne then put the principle to company representatives as a yes or no question.
Susan Moss, Head of Public Policy and Government Relations at TikTok in Ireland, said the Online Safety and Media Regulation Act already provided for liability in certain circumstances, including failure to comply with a notice to end a contravention.
She said TikTok had “robust engagement” with its regulator before launching TikTok Shop.
Dualta Ó Broin, director of public policy for Meta Ireland, rejected the proposal.
“No, I think there is an extensive regulatory framework in place,” he said.
“There is further legislation or regulation coming down several tracks at an EU level. The incentive structure is there and very strong.”
Ryan Meade, government affairs and public policy manager at Google Ireland, also opposed bringing personal criminal liability to the front of the process.
“I do not agree that it would be the most appropriate measure,” he said.
“Our directors are subject to personal and criminal liability in a whole range of areas. They take on a lot of responsibilities in that regard. One of their responsibilities is to co-operate fully with the various stages of the legal framework that is in place. If they do not do that, there is liability.”
Meade said it would be “inappropriate to try to foreshorten that approach, whereby there is proper engagement with the regulator and proper fulfilment of governance responsibilities, by bringing criminal liability to the front of that chain.”
Godfrey told the committee the regulator wanted stronger information-gathering powers so it could compel material even before an investigation begins, a change contained in the Broadcasting (Amendment) Bill, and that it was in discussions with the Department about extra resources because investigations are “very resource intensive.”
Ireland is the European Union base for several of the firms under discussion, and Coimisiún na Meán is the State’s media regulator and designated Digital Services Coordinator under the EU Digital Services Act.
The commission was established in 2023 under the Online Safety and Media Regulation Act 2022 and has said it is examining compliance with online safety rules while working with the European Commission on related cases.
As reported by Gript in January, the same committee previously heard calls for a harder line against the sector.
Kelly said then that Ireland might have to “fall foul” of European processes “for the betterment of our own society” and that doing so “may have other impacts on us economically.” Social Democrats TD Sinéad Gibney raised the idea of “nationalising” online platforms so that algorithms could be used to promote “whatever we choose to do.” Green Party Senator Malcolm Noonan said company officials should face “custodial sentences.”