Why is Elon Musk and his US headquartered X company, formerly known as Twitter, concerned about a proposed Irish law?
Musk says the Criminal Justice (Incitement to Violence or Hatred and Hate Offences Bill), which Minister for Justice Helen McEntee has said will be progressed early this year, curbs free speech. In an interview this week with Gript media, he said people should be “able to say what they want to say”.
The Minister has said the legislation will mean people cannot incite hatred or violence against others but has disputed claims it is too vague and will criminalise speech that some might find offensive.
Is it possible for X to fund any such litigation in Ireland?
It faces an immediate hurdle. Irish law has for centuries outlawed maintenance, the provision by a third party of funding for litigation in which the funder has no interest, and champerty, where such funding is provided in exchange for a share of any proceeds of the litigation.
These rules have been abolished in many other common law jurisdictions but are still criminal offences and civil wrongs here as confirmed by a key Supreme Court decision in 2017.
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In litigation over the award of a mobile phone licence to Denis O’Brien’s company Esat Digifone, Persona Digital Telephony Ltd argued its case was of public importance, could not be taken without third-party funding and its agreement that the funder would get 40 per cent of any proceeds of the litigation did not breach the law. The Supreme Court ruled the law is that professional third-party litigation funding for profit is not permitted and it was not for the court to change it.
Could X provide funds via another company to take the case?
The fact that Musk has openly said X will fund a challenge means the State could seek discovery aimed at establishing who exactly is funding any particular challenge to the legislation. If it turns out X is the holder of the purse strings, the State might then apply to have the case halted.
Does that rule out X getting involved in any challenges to the legislation?
Not necessarily, there are exceptions to the rules against maintenance and champerty, including for third-party funding of litigation for charitable purposes. Legal sources suggest that if Musk were to fund a not-for-profit challenge to the hate speech laws by, for example, a non-governmental organisation, a court might allow that.
Could X not just take its own challenge to the legislation?
That option might be open to the company after the legislation is enacted. In any such challenge, issues could be raised as to whether X has legal standing to bring such an action. The State would be likely to argue in such a case that the hate speech measures conform with Irish law, are similar to those in place in other EU states, and are required by international human rights law.
On the other side, concern has been expressed in several quarters about aspects of the proposed legislation, including that “hate” and “hatred” are not defined and that privacy rights may be affected.
Some might think third-party funding is necessary in some cases
There have been policy and legal developments in Ireland concerning third-party funding and a report with recommendations on the issue is being prepared by the Law Reform Commission (LRC). A new law which came into effect last July provides the offences of maintenance and champerty do not apply to international commercial arbitration and related proceedings and a policy review on third party funding is to be carried out this year.
The Representative Actions Act 2023, giving effect in law here to a 2018 EU Directive providing for a new legal framework to allow a “qualified entity” bring representative actions on behalf of consumers, stopped short of making allowances for such funding. However, the Minister of State at the Department of Enterprise, Trade and Employment has indicated he would follow up on any LRC recommendations that would enable the Act to “work to its optimum”.
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