Thursday, 22 September 2022
Online Safety and Media Regulation Bill 2022: Second Stage (Resumed)
Thank you, a Leas-Cheann Comhairle, for the opportunity to speak on this important legislation. I support what Deputy Ó Cuív said about local radio. There is a lot of information that local radio gives out that is not covered as local news but should be, and those stations should be supported in that regard. Highland Radio and Ocean FM probably have a 90% listenership in Donegal. RTÉ is low down the priority list there. That is important.
Although I understand and agree with the intentions of this Bill, I am wary of the potential threats to privacy and freedom of expression. It seems that this legislation, in its current form, would operate contrary to the EU Digital Services Act, which supersedes it.
There is no doubt but that we urgently need to address the significant rise in online hate speech and online abuse in recent years. It is getting to the point where we are seeing online abuse so often on our timelines that we are becoming almost immune to it. However, we must never become immune to it and we must never accept this type of behaviour. The online world is becoming an increasingly toxic and unhealthy environment for our young people as well as ourselves. Steps need to be taken to ensure that people are given the same level of care and respect online that they are entitled to offline. Online perpetrators should be held to account in the same way all perpetrators in this country should be. We know that online abuse can have the same damaging effects that in-person abuse has. Given that the effect is the same, I do not see why the consequences of engaging in such behaviour should be any different.
Despite the fact that we all know that online abuse has a detrimental impact on people's mental health and well-being, as Amnesty International outlines, the psychological consequences of this abuse are under-researched and, as a result, understated. We have no idea of the full scale of the effect that online abuse can have on people, but we can be sure that it is severe for all those who experience it. Like most issues, these effects are felt most severely by women and minorities. Unfortunately, these are the groups that tend to be targeted online. As a white man, I am in a group that does not experience a lot of this abuse, and I have to recognise that. Online abuse is serious for people who experience it, and we have to be aware of that. Amnesty's research into this area showed that the majority of women polled across eight countries who experienced abuse or harassment on social media reported stress, anxiety, panic attacks, powerlessness and loss of confidence. The National Women's Council of Ireland, in its report last year, found that women are making the decision to drop out of politics because of gendered social media abuse. A report by the UN special rapporteur on minority issues shows that three quarters or more of the victims of online hate speech are members of minority groups and that women belonging to these groups were disproportionately targeted. Unfortunately, this type of behaviour is only increasing. The same report states that the fight against the tsunami of hate and xenophobia in social media appear to be largely failing because hate is increasing, not diminishing. During the pandemic, there has been an incredible 20% rise in hate speech in the UK and the US.
Shockingly, there is a vast and rapidly growing volume of child abuse material being created and shared online. Reports show that the UK's child abuse image database has 17 million unique images on it and it is growing by 500,000 images every two months, which is appalling. It is a problem that is only getting worse as time goes by and as the Internet expands. The longer we stall in addressing this, the harder it will be for us to control it.
It is with that in mind and with the clear understanding of the urgent need for such legislation that I am disappointed to say that I do not fully support this Bill. All of us in this Chamber want legislation that addresses all the issues I have just highlighted, and I would be the first to put my full support behind legislation that addressed those issues effectively.
Unfortunately, this Bill just does not go far enough to protect our privacy rights. It is also about getting that balance right between the privacy rights.
There is far too much contained in the Bill. Many wide-ranging issues are being addressed, which not only makes it very difficult to scrutinise, but frankly makes it vague and unspecific. It is clear that the reason everything has been piled into one Bill is the European Commission decision to refer Ireland to the ECJ for failure to meet the transposition deadline for the revised AVMSD, and the significant financial penalties we are facing due to this. It is completely unacceptable that so much of the legislation introduced in the State is in response to an emergency situation. It reflects very badly on this House but also reflects poorly on the Government. How many times in the past six months have we seen legislation rushed through the House because we were at risk of being prosecuted by the EU as we had not transposed directives into legislation. There is plenty of time to transpose legislation if it is done properly and dealt with properly.
That leads to the wider issue of how the House has dealt with legislation. In a report given to the Business Committee yesterday it could be seen that July and December are the peak times for legislation to come through the House. I am mindful that legislation is rammed through in those times and, therefore, there is no scrutiny. That is the only reason there can be. There is the excuse of deadlines that are set by the Department. Some of that may be true but I do not believe it is. I believe that the legislation goes through at that time so that there is little or no scrutiny. Between January and June, there was less legislation put through the Dáil than there was in the month of July, which is shocking. It will be the same in the run-up to Christmas. We will be scraping around looking for legislation and there will be statements here there and everywhere and there will be no legislation but in December, there will be a mad rush again to railroad stuff through. This is why we get into situations like now where we have to rush this through to deal with the ECJ decision and the failure to transpose, when we could have been doing this in a timely fashion. This is not the way or the environment in which legislation should be drafted, scrutinised or implemented. It makes a mockery of our legislative process and results in messy, incomplete and rushed legislation.
I understand the legislation proposes to dissolve the BAI and in its place establish a media commission with a wider remit, covering on-demand audiovisual media, visual sharing platforms and online safety. The Bill also provides for additional powers for the media commission in respect of compliance and enforcement, including the power to impose administrative financial sanctions. I understand that the Bill’s intention is to introduce extensive provisions around online safety, by creating coimisiún na meán, and to set out a definition of "harmful online content". One of the issues I have, however, is that the definition is far too vague. The Bill is unspecific about the specific content that could lead to sanction.
Once enacted, the commission will be able to issue a notice to remove, disable or limit access to specific content or apply to the High Court to block access to a service. This could lead to a restriction of speech online that is legal offline, or indeed online when communicated privately, and this causes serious rights concerns.
In their submission, the Irish Council for Civil Liberties, ICCL, state that despite the Bill’s intention to reduce harm "this subjective opinion-based approach about feelings that could be had, in regards to already vaguely defined “harmful” content, could lead to a serious chilling effect on the rights to freedom of speech, opinion, and to the right to send and receive information”. Not only is this potentially unconstitutional, but there is also a potential threat to democratic debate. The vagueness in language could lead to larger companies adopting more strenuous filtering measures or greater use of automated decision-making and algorithms in respect of removing online content. The ICCL fears that this risks even greater speech restrictions in a world where machines may unjustifiably remove material due to the non-detection of art, parody, satire, irony or sarcasm, all which are critical for healthy democratic debate. Overuse of restrictive filters can restrict genuine reporting, which could be a devastating unintended consequence of the legislation.
I would be grateful if the Minister could address the submission put forward by Digital Rights Ireland on the inclusion of private communication services and cloud storage services in the legislation, which states that an online safety code will apply to an “interpersonal communications service” or a “private online storage service” in respect of offence-specific categories of online content. This is a significant area of concern as the inclusion of private communication services is incompatible with the right to privacy and data protection. As far as I know there is no justification given for why censorship of these services would ever be necessary or appropriate and Digital Rights Ireland has outlined that these provisions would not be compatible with the case law of the European Court of Human Rights or the ECJ. The Bill does not make clear the obligations that will be placed on providers, nor does it make clear the specific services this will include, what this code will entail and how this measure will impact encrypted services.
The Office of the High Commissioner for Human Rights warns that the regulation of encryption undermines human rights and strongly recommends that States would promote and protect strong encryption and avoid all direct, or indirect, general and indiscriminate restrictions on the use of encryption. In her opening statement, the Minister mentioned that she may consider amendments on Committee Stage and I would strongly welcome this, especially around online safety codes for these services.
Although I disagree with the legislation in its current form, I recognise that it is much stronger than when first published at the beginning of this year. I understand that this is due to the Minister’s genuine and productive engagement with the legislative process in the Seanad. This engagement led to 62 amendments being tabled on Report Stage. I particularly welcome the inclusion of a youth advisory committee and I also welcome that harmful online and media advertising targeted at children is now included within the scope of this Bill. I am aware that the Civil Engagement Group Senators, in particular, pushed for this.
I am disappointed that the issue of profiling children was not considered further by the Minister. There are major gaps in the legislation in this area and I would appreciate more engagement from her on this as the legislation passes through the next Stages. Areas that need particular attention are the advertising in online spaces for conversion therapy and the advertising of weapons to children. A BBC article in June showed that knife crime among teenagers in the UK is being driven by online targeting. The article showed how violent videos and knives for sale could be recommended on the social media accounts of teenagers and how a young boy named Olly was sadly murdered after being exposed to a violent world through his phone. This is incredibly disturbing and it is very concerning to think that we are not protecting our young people from such dangerous targeted advertising. I hope the Minister will look into this concerning issue and address this in the legislation.
I also hope other Ministers will follow suit in recognising the importance of Opposition input. As legislators, it is our job to make legislation as strong and as robust as we can, and this is only possible if proper engagement with the Opposition takes place. Ministers often see Opposition input as an attack rather than an opportunity to gain a different view or even consider issues that may have been overlooked. Although I do not support this Bill in its current form, I support its intent and welcome the engagement it has encouraged. I hope that all future legislation is given the same consideration.