Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

I thank the Chairman and congratulate the Minister. I am very pleased to have the opportunity to present this Bill this afternoon. It has been discussed in previous meetings of the committee and I commend the Chairman and am encouraged by the sentiments expressed by the committee on the need for a digital safety commissioner at this time. There is no doubt that online safety has become one of the most significant challenges facing Irish life and is arguably one of the most significant child protection issues of our times. It is one which legislators very urgently need to face. While it is the case that this requires a policy response and an educational response, it is also my belief that we need strong regulation and a statutory office with real powers and teeth. In most areas of policy, we generally accept that self-regulation is no regulation, and I do not see how this area is any different. It is for this reason that I have introduced the Bill, which I think would be a significant move towards promoting a positive and safe online culture for all. There should be a permanent statutory body rather than an office internal to the Department. I acknowledge the work of the Law Reform Commission in producing the report on digital safety and harmful communications, upon which the Bill is built, and acknowledge particularly the primary author of the report, Dr. Fiona O'Regan.

We face significant challenges and many, especially parents, are concerned about what is happening online. It is hard to blame them when we read the stories of predatory behaviour, harmful material and online bullying. While bullying in any circumstances is bad, the idea that it can follow the child home bothers many parents and must be a very difficult experience for the children affected. However, the digital safety commissioner is not intended as an office solely responsible for preventing harm to children online, but for the population as a whole. It should be responsible for the promotion of a positive online experience. I said on Second Stage that the Internet is a significant public space. It is part of the life of most citizens and increasingly of the lives of younger citizens. As well as the risks it contains, it creates great value which must also be reflected in discussions on the risks and harms associated with it. Our philosophy should not be to be hostile to the Internet or to see it only as a source of danger. We must try as best we can to ensure that Irish citizens will be protected from those who use the Internet for harm and abuse but can also access its benefits. We need a measured, proportionate and sensible response to the risks and hazards. This Bill and a digital safety commissioner are a part of that.

Technology and online platforms evolve very rapidly and dramatically. It is vitally important that the remit of the office is drawn in such a way as to ensure that it stays abreast of all changes and is in a position to evolve. The primary proposed functions of the commissioner as outlined in the Bill are, among others, to promote digital safety for all, and to support and encourage the implementation of measures to improve digital safety, including oversight, regulation and, crucially, a timely and efficient procedure for removal of harmful digital communications. This would ensure that take-down procedures and removal of material are made available to all affected individuals by digital service providers free of charge. The commissioner would ensure that there is a code of practice of safe and responsible Internet usage, develop national digital safety standards and ensure compliance with them, and he or she would have powers to revoke a certificate of compliance with same. Crucially, the commissioner would be responsible for ensuring digital service providers such as websites and social media platforms abide by those codes of practice and national digital safety standards.

There should be recourse directly to the office, but we should seek to have quick, effective and timely remedies put in place by the platforms themselves without having to be forced to do so by the commissioner, to reach the standards because if there is a significant delay in dealing with harmful material, then some damage is already done by the time the material is eventually removed. Some providers have good mechanisms, but some do not.

We also need legislation to ensure that where they are not stepping up to the mark and putting in place safeguards, they are made to do so.

I wish to address some of the criticisms of the Bill, which I take in the co-operative spirit in which they were intended. These were stated on Second Stage by the then Minister for Communications, Climate Action and Environment, Deputy Naughten, who has since been replaced by Deputy Bruton. I am anxious to engage with the new Minister on this. I hope that the Minister, like his predecessor, believes there is value in a body of this kind and in a robust digital safety commission. I am open minded about these issues and proposals and about any issues people may flag. Moreover, I am amenable to any potential suggestions or amendments.

I will address some of the points made by the former Minister. The first relates to a definition of harmful communications, a term used in this Bill to denote when a take-down mechanism could be engaged. The former Minister stated that the Bill does not define what is meant by harmful communications other than those which will be addressed through criminal law. It is possible that it would be appropriate for this to fall within the ambit of the digital safety commissioner's office. Such an office could draw up the definition. In any event, it certainly should not be left to the provider. The commissioner could define what harmful communications would be suitable for take-down mechanisms. However, on balance, I believe it would be appropriate for the sake of legal certainty to provide a definition, especially given that there would be a legal requirement to be in compliance with sections 4 and 5. I am developing a draft of a definition, as I believe it will be necessary.

We should look to the Law Reform Commission recommendations for guidance in this regard. The recommendations did not define harmful communications in terms of a specific stand-alone offence or conduct. Rather, they provided a description of a category of offences that already exist, including section 10 of the Non-Fatal Offences Against the Person Act 1997. That provision would require updating in terms of communications as well as in terms of what the Law Reform Commission proposes. Potential new offences are outlined within pages 5 to 7 and pages 167 to 172 of the Law Reform Commission report. These behaviours require legislation to make them clear and specific criminal offences and that, in turn, would require updating existing legislation. While I do not propose to introduce amendments at this stage to make such criminal offences in this Bill, I favour seeking to address these types of behaviours. In general, such behaviours would include: distribution or publication of an intimate image of another person taken without consent, or threatening to do so; taking or distribution or publication of an intimate image of another without consent; distribution or publication of intimate material where it seriously interferes with privacy or causes alarm, distress or harm to the other person; the distribution or publication of a threatening, false, indecent or obscene message to or about another person for the purpose of causing alarm, distress or harm to the other person, or where it is done persistently; and persistently communicating with a person in circumstances which seriously interfere with the other person's privacy or which cause alarm, distress or harm and any other inchoate behaviours related to the same. This formula is one I am working on. I will communicate with the Minister and the committee further on the matter but I believe there needs to be a definition.

The former Minister also said that the Bill provides for a role for the courts where an entity is established outside the State in respect of a harmful communication and that it was not clear how this would work in practice. He did not elaborate on this so I cannot necessarily describe what specific difficulties would arise.

Committee members have a copy of my opening statement and I can elaborate on the detail in response to questions. I note that the extra-territorial elements of the Bill are not particularly radical or unusual. I believe the Law Reform Commission recommendations dealt with this comprehensively. What is drafted is consistent and entirely in keeping with existing practice on extra-territorial proceedings on Norwich Pharmacal orders in the Rules of the Superior Courts. However, I will listen to argumentation and points in this respect. In the interests of absolute clarity, I am willing to consider whether it may be appropriate to include a specific enabling provision in the Bill.

The former Minister also said that the Bill imposes a number of obligations on digital service undertakings established in the State. Clearly that is the intention. This is not intended to be a dead letter or a soft body. It is intended to have teeth and powers. I see no difficulty with that.

The former Minister also referred to overlap with other State organisations with statutory and non-statutory roles in this area and said the delineation was not clear. I believe this is a matter which requires direction from the Minister. Much of this cannot be dealt with in legislation given that many of the bodies dealing with this area are not doing so on the basis of legislation or statute but on the basis of responsibility assigned by Departments and Government offices. It is possible that some of this could enter the ambit of legislation. Ultimately, if the Minister wishes to support the Bill or a proposal such as this, which I hope he does, he will recognise that there will be a role for the Department in identifying work done by other offices such as the Office for Internet Safety and how any relevant functions could relate to the digital safety commission.

I note this matter was briefly addressed by Ms Niamh Sweeney and Ms Siobhán Cummiskey of Facebook at the Joint Committee on Communications, Climate Action and Environment some weeks ago. I note that they were not opposed to the idea. They stated that Facebook sees great benefit in a single office having the ability to oversee and co-ordinate efforts to promote digital safety. Ms Sweeney went on to state that while it would clearly not be the intention of the Bill to impact on free speech in Ireland, the commissioner's ability to issue a decision ordering the removal of harmful communications should be considered in light of the potential for limiting freedom of speech. She argued that it was important, therefore, to have a clear definition of what constitutes a harmful communication included in the legislation. I accept the point on freedom of speech. We must be conscious of it in all our deliberations. The other point relates to the harmful communications definition, which I have already addressed.

Some other points have been raised with me separately. There has been a suggestion that it might be more appropriate for the parent or key Minister identified in the Bill to be the Minister for Communications, Climate Action and Environment rather than the Minister for Justice and Equality. Given that the Government directed the Bill to this committee, this is clearly the view of the Government. It is probably the view of the committee as well and I am happy to take that on board and agree that the parent Department should be the Department of Communications, Climate Action and Environment.

Reference was made to sections 3(e) and 3(f). I believe these provisions require some amendment. The onus placed on the Ombudsman for Children should perhaps be revised. Certainly there is a role for the Ombudsman for Children but the key responsibility for directing and initiating any material for the curriculum should be from the digital safety commissioner in consultation with the Ombudsman for Children and the Department of Education and Skills as well as perhaps the National Council for Curriculum and Assessment and any other relevant bodies. Rather than simply producing material and documentation, I believe the commissioner should be focused on working with the NCCA to hard-wire digital literacy into schools. I know the Minister has done good work in the Department of Education and Skills in respect of digital literacy already.

In general, these are constructive positive suggestions. I am keen to hear the views of committee members. I will be open to potential amendments across a wide range of areas. I am keen for the Bill to improve and progress. I want to see a digital safety commissioner established in this jurisdiction. I have included my contact details in my opening statement to all committee members and the Department. I am open to people for any contact following this meeting.