Dáil debates

Wednesday, 21 September 2022

Online Safety and Media Regulation Bill 2022: Second Stage


3:07 pm

Photo of Catherine MartinCatherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

I move:

"Go léifear an Bille an Dara hUair anois."

Dlí ceannródaioch is ea é an Bille um Rialail Sábháilteachta ar Line agus na Meán agus tá áthas orm é a chur faoi bhráid an Tí.

The Online Safety and Media Regulation Bill is ambitious, comprehensive and wide-ranging media legislation. It will be the first major overhaul of the Broadcasting Act 2009 since that Act was last considered by this House. Since that time, there has been a dramatic transformation in how we consume content, whether on television, radio or by way of services offered over the Internet. This transformation has been made possible by new technologies, in particular the widespread availability of smartphones and broadband services. The most radical aspect of this transformation has been the vast amount of user-generated content that is now created by people across the world and made available online. The rise of online services has allowed new ways for people to communicate with one other and new outlets for creativity and self-expression. However, with these new benefits come new risks, particularly for our children. Some of those risks are an extension of existing dangers, such as bullying and harassment, to a new environment in which they can be magnified.

Others, such as image-based abuse, represent a new challenge.

This Government is determined to confront these risks by bringing an end to the era of self-regulation. For the first time in Irish law, this Bill creates a regulatory framework for online safety, in which online services will be held to account when the public, and children in particular, are not appropriately shielded from harmful online content. The Bill also provides for the modernisation of the regulation of broadcasting services and video-on-demand services. This is essential in light of the significant expansion of video-on-demand services and the need for better alignment of the regulation of those services with broadcasters to ensure a level playing field and consistent application of media regulation.

Prior to detailing the key elements of the Bill, I will briefly update the House regarding the infringement proceedings in respect of the revised audiovisual media services directive. On 19 May 2022, the European Commission decided to refer Ireland to the Court of Justice of the European Union for failure to meet the transposition deadline for this directive. Unfortunately, this is likely to result in the imposition of significant financial penalties. I am aware this House needs no additional motivation to progress this legislation, but I note this development reinforces the need to get this Bill enacted swiftly. I sincerely thank the Seanad and the Joint Committee on Tourism, Culture, Arts, Sport and Media for their intensive scrutiny of this legislation to date. I am proud to have been participating as Minister in the interesting and thought-provoking debates we have had, and will have, on this ground-breaking legislation.

Prior to giving a more structured overview of this Bill, I will first speak about some of its most important provisions. First, Part 3 provides for the creation of coimisiún na meán, a regulatory body which will be responsible for implementing and enforcing online safety and media regulation. To do so, an coimisiún will have a robust and modern suite of regulatory functions and powers in line with EU law and best practice. Of fundamental importance will be its independence in the exercise of those functions and powers.

The powers of an coimisiún include the power to fund its operations by levying regulated services, create legally-binding regulatory codes, gather information and appoint authorised officers to conduct investigations and the power to seek the imposition of sanctions for non-compliance, including financial sanctions of up to €20 million or 10% of the turnover of the non-compliant service provider, whichever is higher. While the functions of an coimisiún primarily relate to the regulation of services, it will also have wider roles in respect of the protection of children, research, education, media literacy and journalistic and creative supports.

As provided for in the transitional provisions at Part 16, coimisiún na meán will also take over the current functions of the Broadcasting Authority of Ireland, BAI. This includes the transfer of the staff of the authority to an coimisiún. I envisage that an coimisiún will need to scale up quickly to a staffing level of at least 160 people and in the longer term may require a staffing complement of up to 300 people. This scaling-up process will be particularly important following the Digital Services Act coming into effect because the Government has decided that an coimisiún will be designated as the digital services co-ordinator for the purposes of the Act's implementation.

Given the importance of an coimisiún, the Government approved its establishment on an administrative basis prior to the enactment of the Bill. In this regard, an extensive programme of work is under way with the Public Appointments Service, PAS, and the Department of Public Expenditure and Reform to recruit corporate and senior staff and to lay the groundwork for an effective regulatory environment. The posts of executive chairperson, the online safety commissioner and the media development commissioner are being recruited through open, transparent and public competitions. Each post was advertised by the PAS in July and it is also now managing the next stages of the competitions, which are expected to be concluded by November. While it was always the intention to appoint an online safety commissioner, as demonstrated by the ongoing recruitment process, to highlight the importance of the role and to provide certainty to stakeholders, and in light of relevant discussions in the Seanad, I brought forward an amendment to explicitly provide for the position in the Bill on Report Stage in the Upper House.

As I mentioned, perhaps the most significant matter for an coimisiún to address will be the regulation of certain online services in respect of user-generated content. This legislation provides for a regulatory framework for online safety in Part 11. Through this framework, the online safety commissioner will tackle the availability of harmful online content. Regarding the online services which may be regulated in line with the revised audiovisual media services directive, the Bill firstly requires an coimisiún to designate video-sharing platform services for regulation. An coimisiún may also designate further online services which facilitate access to user-generated content for regulation. This will encompass a wide range of services, including social media services and many gaming, online messaging and storage services.

To designate a service, an coimisiún must conduct a risk assessment. This will include consideration of various factors, such as the nature and scale of the service and the risk of exposure to harmful online content. This risk-based approach will enable an coimisiún to direct its energies and resources to the areas where they are most needed. Once an online service has been designated for regulation, an coimisiún can require it to comply with binding online safety codes. These codes can require online services to adapt their systems and processes in three key areas: in rules for content moderation and complaints handling; in rules regarding the design of a service and how and why it displays certain content to users; and in rules about commercial communications, including advertising. The main aim of the codes is to tackle and progressively reduce the availability of harmful online content on designated online services. The Bill clearly defines "harmful online content". Online content is harmful where it relates to one of the 40 criminal offences listed in section 45 of the Bill or cyberbullying, or promotes or encourages eating disorders, self-harm or suicide or makes available knowledge of methods of self-harm or suicide.

The schedule of criminal offences includes, for example, those under Coco's law, that is, the Harassment, Harmful Communications and Related Offences Act 2020, regarding image-based abuse, abuse of communications and harassment. For harmful online content not related to an existing criminal offence, cyberbullying material for instance, a risk test must be met for it to be considered harmful. This includes consideration of whether the online content gives rise to any risk to a person's life or a reasonably foreseeable risk to a person's mental or physical health. The Bill also provides for a mechanism, which is subject to Oireachtas oversight, for future categories of harmful online content to be brought within its scope.

In summary, the online safety elements of this Bill will ensure that an individual will be exposed to far less harmful online content and that online services will be required by law to respond to and robustly deal with complaints when they are made. In this regard, an coimisiún will have significant powers of compliance and sanction to hold these services to account. In the context of online safety, it is important to mention the work of the expert group on an individual complaints mechanism. I brought its report to Government yesterday. As Members may be aware, the expert group was tasked with examining the potential legal and practical issues involved. It has backed the feasibility of establishing such a mechanism but only if certain key factors and dependencies are addressed. As an example of those dependencies, the expert group emphasised the importance of allowing appropriate time for the systemic forms of regulation relating to complaints to bed in before phasing in the mechanism. In particular, the report emphasises that an individual complaints mechanism would not be workable or effective without systemic online safety regulation being in place.

As part of the report, the expert group included draft heads which provide for an individual complaints mechanism within the Bill. These draft heads have been provided to the Office of the Parliamentary Counsel for detailed drafting and it is my intention, subject to Government approval, to bring forward the resulting amendments on Committee Stage. I thank once more the members of the expert group for their report and comprehensive consideration of the issues at play regarding the feasibility of an individual complaints mechanism in the context of this legislation. Additionally, regarding the individual complaints mechanism, the recommendation of the expert group is to first deal with harmful online content that targets children.

Regarding the regulation of broadcasting and streaming services, this will primarily be done through media service codes and media service rules, the provisions for which are set out at Part 5. Media service codes are mostly about the content of programming, including rules for programme standards and advertising. Media service rules, on the other hand, are mostly about the presentation and structure of the service, including rules regarding the time given to advertising, accessibility requirements for persons with disabilities and quotas for European works.

To ensure the uninterrupted regulation of broadcasters, the transitional provisions at Part 16 provide for the existing broadcasting codes and rules to be carried over and to become media service codes and rules.

Part 5 also provides for the mandatory registration of streaming services to ensure that, in line with the revised audiovisual media services directive, all streaming services established in Ireland are subject to appropriate regulation. Broadcasters will remain regulated on a contractual basis, as is set out in the current Broadcasting Act 2009.

The Bill also provides for the transposition of an optional provision in the directive which will empower an coimisiún to levy broadcasters and streaming services, including those established elsewhere in the EU, in respect of any revenues that they may make in Ireland in order to fund the production of European work, including Irish-produced works. Provision is made so that the money collected may be disbursed by an coimisiún through a content production scheme. The Bill does not set the amounts of any such levy as this would be inflexible but enables an coimisiún to design and implement a levy having regard to relevant economic factors. There are potential risks and benefits to a levy, including for consumers, and it is intended that an coimisiún would thoroughly examine these matters before these provisions are commenced.

At this point, I would like to acknowledge the importance of media development and sustainability and note the constructive engagement I had last week with the joint committee and the Seanad on the report and recommendations of the Future of Media Commission. While legislation separate from this Bill will be brought forward to progress the implementation of the Future of Media Commission recommendations, the appointment of a media development commissioner, who will work in tandem with the broadcasting commissioner, will be key to the successful implementation of those recommendations.

I reiterate my gratitude to Members of the Seanad for their extensive consideration of the Bill. Productive engagement with Senators led to 62 Government amendments being brought forward on Report Stage. In the interests of time, I will not go through each amendment but will highlight a few of them. They included amendments to require an coimisiún to establish a youth advisory committee; an amendment to require coimisiún na meán to promote and encourage the use of the Irish language by communications media operating in the State; and amendments to explicitly expand the educational remit of coimisiún na meán, including to provide that an coimisiún can engage with community, local and sorting bodies in awareness raising, training and education.

In addition, I note that there were certain issues raised by Senators which I committed to returning to in the Dáil following a period of further consideration. I am still considering some of those issues with a view to potentially bringing amendments on Committee Stage, including in relation to the operation of a potential content production levy and content production scheme, as well as amendments in relation to media service codes and rules regarding defining party political broadcasts and the time given over to political parties during electoral periods.

I also intend to bring forward a number of other amendments on Committee Stage in the Dáil. These are primarily technical in nature and include consequential amendments in light of the enactment of the Electoral Reform Act 2022, amendments to clarify the nature of the territorial scope of content limitation notices, amendments to clarify that local broadcasters will be able to apply for funding under the scheme for professional journalistic practices and amendments to clarify the application of the provisions providing for the prominence of public service content.

Turning to a more structured overview of the provisions of the Bill, it is, first, important to note that this Bill amends the Broadcasting Act 2009. Part 1 addresses preliminary and general matters. Part 2 amends the 2009 Act to insert and amend a number of definitions to support the operation of the Bill. Part 3 amends Part 2 of the 2009 Act to provide for the establishment of coimisiún na meán. Key aspects of this Part include provision for the independence of an coimisiún; for the appointment of commissioners; for an coimisiún to impose levies on regulated services, excluding community broadcasters, to fund its operations; and for the accountability of the chairperson to the Committee of Public Accounts and the chairperson and other commissioners to relevant Oireachtas committees.

Part 3 also provides for the high-level powers and functions of an coimisiún. These include upholding Ireland's democratic values; protecting the interests of the public, in particular, children; ensuring the diverse needs of the people of this island are served by our media; and sustaining independent and impartial journalism.

Part 4 provides for matters related to the registration of providers of streaming services through the insertion of a new Part 3A into the 2009 Act.

Part 5 concerns the duties, codes and rules applicable to radio and television broadcasters and streaming services and provides for these through the insertion of a new Part 3B into the 2009 Act. Chapter 2 of this new Part concerns duties on those services. Chapters 3 and 5 of this new Part concern media codes and rules. Chapter 3 of this Part also provides that existing broadcasting codes and rules made by the Broadcasting Authority of Ireland will continue in force following the enactment of the Bill.

Part 6 amends Part 4 of the 2009 Act and primarily concerns changes to take into account the establishment of an coimisiún and the statutory regulation of streaming services in respect of redress mechanisms.

Part 9 amends Part 7 of the 2009 Act to, among other things, take into account the establishment of an coimisiún in relation to public service broadcasting, provide for changes to the calculation of total advertising time for broadcasters and insert a new Chapter 7 regarding the availability and prominence of public service programmes and services.

Part 11 inserts a new Part 8A into the 2009 Act concerning online safety regulation. Chapter 1 of this new Part concerns the definitions of harmful online content and age-inappropriate online content. Chapter 2 concerns the process for designating relevant online for regulation. Chapter 3 concerns the making of online safety codes, the matters which they can address and matters which need to be taken into account when the codes are being drawn up. Chapter 4 concerns the making of online safety guidance materials and advisory notices. Chapter 5 concerns an obligation on an coimisiún to establish a super-complaints scheme for nominated bodies and a number of other matters.

Part 11 also inserts a new Schedule 3 into the 2009 Act containing the list of offence-specific categories of harmful online content.

Part 12 inserts a new Part 8B into the 2009 Act concerning investigations and sanctions. Chapter 2 of this new Part provides an coimisiún with the power to appoint authorised officers and sets out procedures for investigations by those officers and for decisions by an coimisiún following investigations. Chapter 4 concerns the imposition of administrative financial sanctions.

Chapter 5 of this new Part provides an coimisiún with the power to issue notices to end a contravention and provides for secondary criminal liability for senior executives. Chapter 6 provides an coimisiún with the power to seek court orders to block access to non-compliant online services in Ireland. Chapter 7 provides an coimisiún with the power to issue content limitation notices in respect of individual items of harmful online content.

Chapter 8 of this new Part provides for three categories of summary offences under the Bill and provides an coimisiún with the power to prosecute these offences. This Part also creates a new Schedule concerning oral hearings.

Parts 7, 8, 10, 13, 15 and 17 amend various Parts of the 2009 Act and other relevant Acts to take into account the dissolution of the Broadcasting Authority of Ireland and the establishment of an coimisiún.

Part 14 inserts a new Part 10A into the 2009 Act concerning European works. This Part provides for the requirements of the directive for European works quotas and prominence and provides an coimisiún with the power to introduce a European works levy and European works scheme.

Lastly, Part 16 provides for transitional matters.

As can be seen, this Bill is, given its subject matter, necessarily multifaceted and wide-ranging. It deals with a wide range of important issues from modernising media regulation to, for the first time, introducing online safety regulation to tackle the availability of serious forms of harmful online content. I look forward to Members' contributions and to engaging further during the course of their scrutiny of the Bill.


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