TJ McIntyre: 'Social media will change only when there is a deterrent'
The Ana Kriegel murder trial is not the first time the Irish criminal justice systems North and south have struggled with social media. Indeed it has become an annual occurrence at this point.
The 2018 Belfast rape trial saw the #IBelieveHer hashtag trending as Twitter users supported the complainant and second-guessed the outcome.
One year prior, #JobstownNotGuilty was used to support Paul Murphy TD and others charged with the false imprisonment of former Labour Party leader Joan Burton during a water charges protest. In both cases there were complaints that this interfered with the trial process.
The naming of Boy A and Boy B is less politically informed and much cruder, but reflects the same trend of individuals disregarding legal rules they deem unjust or irrelevant.
In this case, anonymity for child defendants has been ignored by a number of social media users who see it as giving an unfair benefit to the two boys, and who presumably believe that there will be no consequences for their posts.
In both the Jobstown case and the Belfast rape trial the response of the prosecution and defence was to target individual posters. Paul Murphy was forced to delete tweets; Paddy Jackson threatened to sue those tweeting #IBelieveHer (counter productively sparking the #suemePaddy hashtag); and eventually one man was fined for revealing the complainant's identity.
This focus on individual posters was kept up in November when the Chief Justice, Frank Clarke, announced a ban on social media posts from the courtroom. In a clear reaction to the Jobstown and Belfast trials, Irish law now prohibits tweets from the courtroom in all cases, civil or criminal, from everyone other than journalists, lawyers and those with special permission from the presiding judge.
In the Ana Kriegel case, though, the focus of the response has been different. While gardaí are investigating posts naming Boy A and Boy B, the State also moved aggressively against the social media firms themselves.
Last Wednesday, the Director of Public Prosecutions (DPP) took an unprecedented approach by obtaining an injunction against Facebook and Twitter, despite the fact that neither company was in court, requiring them "to remove forthwith from their sites any material tending to identify the two children" and to "restrain any repeat" of such information. While not entirely clear, this appeared to require the firms to proactively seek out and remove these posts, and block similar posts in future.
The following day, however, that order was significantly cut back. When Facebook and Twitter appeared in court on Thursday they pointed to a European law - the E-Commerce Directive - under which they cannot be made responsible for user posts unless they have "actual knowledge of illegal activity", provided that they "act expeditiously" to take down the posts when they get such knowledge.
That law also provides that social media firms cannot be put under a "general obligation to monitor" posts or generally to block future posts.
Despite submissions from Brendan Grehan SC for the DPP saying that "it was not really good enough for Twitter to say it would act if the DPP brought matters to its attention" and that "he wanted some responsibility to be shouldered by the providers of the platform", the trial judge amended the order in line with the EU directive to require Facebook and Twitter to take down only any material which "they became aware of or was brought to their attention".
This does not prohibit social media firms from doing more on a voluntary basis, and in the Ana Kriegel case Facebook had liaised with the Courts Service at the beginning of the trial, had provided a dedicated email channel for concerns, and had attempted to proactively block re-uploads of photos identifying the children.
But the case does highlight an important point. The E-Commerce Directive, like similar laws, is a policy trade-off which takes the view that social media firms handle hundreds of billions of posts each year and can't be expected to seek out particular posts which might be illegal.
It is up to national authorities rather than internet firms to identify offending posts, have them taken down, and prosecute if appropriate.
In Ireland, the State has failed to provide the resources necessary to do this. The main unit responsible - the Garda Cyber Crime Bureau - now has just 27 staff, or fewer than two per internet giant with a Dublin headquarters.
Ultimately, the law requires enforcement to be credible. We should not let the issue of private action by internet firms distract us from the need for public policing and prosecutions to act as a deterrent.
Dr TJ McIntyre is Associate Professor in the UCD Sutherland School of Law, chairs Digital Rights Ireland and is a consultant with FP Logue Solicitors