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Monday 30 January 2023 Dublin: 6°C
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Legislating for online and social media is possible and it is necessary, writes Josepha Madigan.

IRELAND CURRENTLY HAS no legislation to deal with contempt of court. Effective contempt of court laws are necessary to protect the right of everyone to a free trial, particularly to ensure that juries are not unduly influenced while a case is ongoing.

While contempt of court is a common law offence, it is apparent that there is an urgent need to enact relevant legislation to deal with the changing nature of communications technology in our society.

The severity of contempt of court is largely recognised already in Irish law. In recent years two Irish newspapers were fined a total of €60,000 for their coverage of Criminal Assets Bureau proceedings against a Dublin gangster, while RTÉ was obliged to donate €40,000 to charity after it made comments about an ongoing tiger kidnapping case.

Nonetheless, current contempt of court laws are not sufficient to protect the right to a fair trial.

Social media usage during trials

The pressing need for contempt of court legislation to deal with social media usage during trials was highlighted in the recent trial which saw Paul Murphy TD and his co-accused acquitted of the false imprisonment of the then Tánaiste Joan Burton and her advisor Karen O’Connell.

Throughout the trial #JobstownNotGuilty was trending on Irish Twitter. This was accompanied by marches and ongoing social media commentary on the trial from Deputies Paul Murphy and Ruth Coppinger among others.

We do not and cannot know if the social media campaign had undue influence on the jury, but it is apparent that we need to protect jurors from attempts to influence them through social media.

The use of social media throughout the Jobstown trial prompted me to begin drafting a Private Members’ Bill to legislate for contempt of court and to address the challenges presented by social media.

Calls to place contempt of court on a statutory footing are not new

However, calls to place contempt of court on a statutory footing are not new. The Law Reform Commission has been calling for contempt of court legislation since 1991 and published its most recent paper on the subject last year. The Supreme Court called for legislation in 1999.

We are not the only common law country where it is being recognised that a codification of contempt of court laws is necessary. The UK has had contempt legislation since 1981 and last month the New Zealand Law Commission called for contempt law to be put on a statutory footing, specifically “giving courts the power to make takedown notices for material on the internet and social media platforms that breach suppression orders.”

It is clear that we need legislation to directly deal with contempt of court. This need has been brought into stark relief by the advent of social media. As Chief Justice Susan Denham said at the launch of the 2016 Annual Report of the Courts Service earlier this week “the fundamental right to a fair trial does not change in the face of any new means of communication. Rules can and must reflect the new reality.”

Reality has clearly changed. Now we must change the rules.

We must do our utmost to protect our court system

In 2014 the case of Delfi AS v Estonia came before the European Court of Human Rights. This held Delfi AS, an Estonian news site, liable for defamatory comments posted by its users.

This ruling does not yet have direct legal effect but is illustrative of developing trend in European law dealing with online and social media. Similar cases, in other jurisdictions, have found online platforms liable for comments made by their users.

In the UK, Tamiz v Google (2013) found Google liable, in principle, for defamatory comments hosted on Google Blogger. Hulk Hogan was awarded $25 million in damages after Gawker, an online news platform, leaked a sex tape in which he was featured.

Legislating for online and social media is possible and it is necessary. The Bill will provide for a notice and takedown system whereby a court may direct the removal of material from websites for the duration of a trial to protect the independence of the jury.

The introduction of such legislation would in no way be intended to curtail freedom of speech. Rather, it is a recognition that our current laws are outdated in light of modern developments in communications technology. Our democratic system under the rule of a law relies on the integrity of our court system. We must do our utmost to protect it.

As society changes, legislation is needed to ensure that our laws keep apace. We need to legislate for contempt of court, particularly dealing with the role of social media, to protect the integrity of our court system.

Josepha Madigan is the Fine Gael TD for Dublin Rathdown and Chair of the Oireachtas Committee on Budgetary Oversight. She is an award-winning family lawyer and a qualified mediator. Josepha is passionate about using both her business and legal skills in assisting constituents.

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