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

There were a few points. First, merely to clarify, what I outlined is a general basis for a definition of harmful communication. The behaviours I enumerated were general behaviours rather than specific offences. They are not necessarily all criminal offences. Some of them are proposed criminal offences from the Law Reform Commission paper. That is for the purpose of drafting this.

My view is that one could consider whether only communications which are at the threshold of being criminal could be subject to take-down procedures and the regulations proposed in this. That would not be the right approach. There are behaviours which are extremely harmful which probably fall short of criminal and the definition would have to take that into account.

I also believe that if we were to use the word "criminal" specifically in a definition of harmful communications - I am open-minded on this - it would seem that there is a danger that one could be entering into the area of a commissioner being responsible for the administration of justice, which, obviously, can only happen before the courts and through the Garda and all that is constitutionally provided. My initial view is that it would be better to stick with the phrase "harmful communications" but to define that specifically to take in areas that include issues which are criminal behaviour.

There is much that happens online, in terms of abuse and all the rest of it, that would currently qualify as harassment or as one of a variety of criminal offences - for example, stalking - but that often are not progressed to the Garda and the DPP. However, there has to be a category just short of that that should be subject to take-down procedures as well. There is a balance to be struck because one needs to be conscious of freedom of speech but we should not only be dealing with matters that are criminal.

In regard to the platforms, it is a fair point that it would likely be the case in some circumstances that where they see certain behaviours they would refer them to the Garda. However, that would depend on the nature of the communication or the behaviour and, as I say, every harmful communication that we should be looking at should not be at that level because that is a very high threshold and much of what we want to address would fall short of that.

The Minister spoke in terms of what added value was involved. As I said, Facebook states it sees great benefit in a single office having the ability to oversee and co-ordinate efforts to promote digital safety. If one is in the space that one is talking about where self-regulation is no regulation and we are going beyond that, then one needs something that is a regulator. This is, essentially, what we are talking about here. If one has a regulator or a commissioner of this kind, it must have real powers. If it has those real powers and is involved in taking down harmful material, intervening with platforms and perhaps, occasionally, having to go to the court to see measures enforced, but it is dealing with that kind of responsibility all the time, then it makes sense. This commission will be the body at the front line of developments in and behaviour on social media and those working for this body will be the first to see the dangers that exist with new platforms or new uses of the platforms and it is right and proper that they would be responsible for co-ordination.

That is not to say that every person who is dealing with online safety in any Department or body needs to be subsumed into it. That is not the case but the commission may need to be the central body for co-ordination and designing policy, and identify issues arising in different platforms and their use. Of course, it is the case that there should still be staff in the Department of Education and Skills, in whatever form that Department may see fit, who would be responsible for addressing this and identifying how this material is worked out through the schools. However, they should be talking to a digital safety commissioner and asking what has been happening recently, what are the new platforms, etc. That is the dialogue that needs to happen. The Ombudsman for Children can have a role in communication but the direction and formulation of research and analysis of what is harmful and what the best way of dealing with it should come from the digital safety commission.

In relation to Deputy Dooley's points on strengthening powers and on fines and penalties of that kind, I am open-minded in that regard. It is a power that exists in the Australian eSafety Commissioner and in Netsafe in New Zealand and that is something that is well worth considering. I would be interested in the Minister's views on that. However, if one has a commissioner, it is important not only that he or she has powers to remove material but that, if he or she is not getting co-operation from those platforms, the commissioner can sanction them, not only through the revocation of their certificate of compliance which is an incentive to an extent because it allows parents and users to identify what is safe and what is not but - there is a case for going beyond that - through sanctions, such as fines.

The point has been made in terms of Europe. I recognise a great deal is being considered here but there is nothing in European legislation of which I am aware that precludes us from doing this. If we are talking about proposal formulations that Europe is currently considering, European legislation can take eight or nine years. There is no sense in us waiting. I believe there is a consensus in this country that this is something that needs to be proceeded with. We need serious regulation. Self-regulation needs to be brought to a close. We cannot afford to simply stand around and wait for Europe to take action and see what it comes up with because we could be waiting a long time.

On the point on jurisdiction raised by Deputy Stanley, as I stated at the start, what is proposed, first of all, by the Law Reform Commission, is not particularly radical in terms of extraterritorial effect. It is limited to situations where harmful communication affects an Irish citizen or a person ordinarily resident in the State and the means of communication used in connection with that harmful communication is in the control of an undertaking or company established under the law of the State or such harmful communications affect an Irish person or a person ordinarily resident in the State where the means of communication used in connection with such harmful communications are within the control to any extent of an undertaking established under the law of another state or where a court established in this State would have jurisdiction to give notice of service outside the State in respect of civil proceedings to which harmful communications refer. That is in keeping with Order 11D of the Rules of the Superior Courts 1986 and many other areas of the rules of the courts. As I understand it, this is standard enough. Certainly, there is no great difficulty in bringing cases. I suppose it is fair to say it may be difficult in practice pursuing persons on foot of proceedings brought before the court but there is no difficulty in what I have outlined here in the ability of the proposed commissioner to bring proceedings, which is absolutely possible.

In summary, I will make two or three final points. As I outlined, I believe there is a consensus that self-regulation is no regulation. That is the case across a wide range of sectors. It should be the case here. It is an issue that affects an ever-growing percentage of the population. We need to be ambitious and imaginative. Other common law jurisdictions, such as Australia and New Zealand, have put in place robust regulators and commissioners with real teeth. There is no reason, in another common law jurisdiction such as ours, that we cannot do the same. We need to do that.

I am not sure whether the Minister stated it clearly so I take this opportunity to ask him whether he favours, in general, whatever about the technicalities and details, putting in place a commissioner or an office of regulator of the kind outlined here.