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

I move amendment No. 1:

To delete all words after "That" and substitute the following: "Dáil Éireann declines to give the Protection of Children (Online Pornographic Material) Bill 2020 a second reading on the basis that its scope is not in line with the remit of ComReg, its objectives are being pursued by the Government through other initiatives, it would likely infringe European Union law and the country-of-origin principle and the independence of our national regulatory processes.".

Go raibh maith agaibh as an deis an t-ábhar tábhachtach seo a phlé. Gabhaim buíochas leis an Teachta Tóibín as ucht a chuid oibre tosaigh. I thank the Deputy for raising this important issue.

As a parent, I am acutely conscious of the issue of children accessing online content that is inappropriate. The Deputy noted the lack of legislation in this area when he introduced his Bill back in 2020. However, since the Bill was initiated, we have not been sitting on our hands. I took a major step towards addressing this issue by bringing the Online Safety and Media Regulation Act through the Oireachtas and commencing it in March 2023, thereby formally establishing Coimisiún na Meán. As our independent online and media regulator, the commission will lead the charge in ensuring online services and platforms in Ireland put in place the systems and processes that will reduce the availability of harmful online content.

The Deputy’s Bill, while seeking to address the same issue, will not achieve that objective. In the time since the Bill was introduced, Government has implemented significant policy decisions that have and will change the online regulatory landscape. Alongside the Online Safety and Media Regulation Act, for example, further regulation will arise from the Digital Services Act, with support from the EU’s Better Internet for Kids Strategy, including in the area of age verification in respect of the provision of certain online services. It is through these policy avenues that we will deliver a safer online space for everyone and especially our children.

Before I set out the work that the Government has delivered on with respect to online safety, it is worthwhile to set out what I am advised are quite significant legal and technical issues with the Deputy’s Bill. These are issues of sufficient magnitude to render the Bill unworkable. The Bill seeks to prevent children accessing pornography online by enabling ComReg, as the Deputy just outlined, to block access to particular websites based on regulations to be made by the Minister for the Environment, Climate and Communications. These regulations would apply specific obligations, including around age verification, to "relevant persons", a term defined in the Bill. The first major issue is the Minister for the Environment, Climate and Communications, to whom the Bill refers, has no role with regard to the regulation of content transmitted using telecommunications infrastructure. ComReg is responsible for regulating the supply of, and access to, electronic communications networks and electronic communications services. Under the Communications Regulation Act, it is clear ComReg has no regulatory role in respect of the content made available on those networks and services. This is a serious flaw in the Bill, especially when one considers the work the Government has done in establishing Coimisiún na Meán as the online safety regulator.

An coimisiún is an independent regulator with responsibility for tackling the availability of illegal, harmful and age-inappropriate online content. In doing so, an coimisiún will complete the transposition of the EU's revised audiovisual media services directive and fulfil its future role as Ireland's digital services co-ordinator under the EU Digital Services Act. As an example of the Government's commitment to supporting Coimisiún na Meán, significant funding of €10.5 million and €6 million respectively was allocated in the 2023 and 2024 budgets to enable it to progress with extensive recruitment, hit the ground running and ultimately become self-funding. Based on the existing functions of Coimisiún na Meán in the regulation of content, it would not be appropriate for the power proposed in the Bill to be conferred on ComReg or the Minister for the Environment, Climate and Communications. In fact, it would be inefficient and ineffective, not least for those entities that would be subject to overlapping regulatory regimes.

Another major issue is that the power to make regulations granted to the Minister in the Deputy's proposed Bill appears to infringe on the requirement of many EU laws, including the audiovisual media services directive, the Digital Services Act and the general data protection regulation, for an independent regulator. That is why, in implementing the audiovisual media services directive through the Online Safety and Media Regulation Act 2022, we provided for the independence of Coimisiún na Meán. This Bill seeks to address issues covered by the EU instruments I have just mentioned through ministerial regulations and would therefore conflict with this requirement for regulatory independence from Government. To be clear, this requirement for regulatory independence is something that Ireland strongly supports at EU level and it is reflected in our domestic approach to regulation.

It is also the case that the Bill would only allow for blocking at the level of the Internet service provider. This would mean that, in practice, enforcement notices issued by ComReg would only be suitable for non-compliant services that operate stand-alone websites providing access to pornography. In other words, it would be impossible to enforce such notices in respect of pornographic material made available on hosting services such as OnlyFans, Reddit or X, formerly Twitter. This means that the Bill would not offer comprehensive protection for children from access to pornographic material.

As a final legal consideration, the approach set out in the Deputy's Bill would likely be contrary to the EU's country of origin principle. This arises because the Bill seeks to place obligations on persons based elsewhere in the EU, including Internet service providers that provide commercial services within this State. For example, when initiating the Bill, the Deputy mentioned the importance of regulating Pornhub. However, this particular service has its European headquarters in Luxembourg and is subject to the laws and regulations of that country for its operations across the Union. Ireland has strongly defended the country of origin principle as part of EU negotiations and has committed to safeguarding it within our national digital strategy. The principle is crucial as it greatly simplifies legal compliance for many online services. It enables these services to access the entire EU Single Market while only being required to comply with the laws of the country in which they are based as opposed to the various national laws of each country in which they operate. The principle is vital for many services that have based their EU operations in Ireland and we will continue to support and defend it.

As I said at the outset, notwithstanding the significant legal and technical issues with the Bill, what is most important is that the Government has made serious and significant progress and investment in addressing online safety over the past period. I note the Deputy highlighted that children always have the opportunity to view inappropriate material where they have access to an electronic device. However, there are multiple Government and European initiatives in progress that will tackle this issue.

Perhaps most notably, Coimisiún na Meán was established under the Online Safety and Media Regulation Act. This legislation was welcomed by a range of organisations including the Irish Society for the Prevention of Cruelty to Children and the Children's Rights Alliance, which see this as a possible window to a safer online world for children and young people in this country. In this regard, the Act enables an coimisiún to implement a regulatory framework for online safety through the development of binding online safety codes and online safety guidance materials. These regulatory measures will protect the public from harmful online content and children from age-inappropriate online content, including pornographic material. In particular, the Online Safety and Media Regulation Act requires Coimisiún na Meán to adopt an online safety code that gives effect to the regulation of video-sharing platforms as set out in the revised audiovisual media services directive. This will include requirements to adopt measures in respect of age verification, content rating and parental controls, including in respect of pornographic material. This was reflected in Coimisiún na Meán’s recent call for input on the development of its first online safety code, which it expects to adopt in early 2024.

The legislation also provides for a robust enforcement regime, which includes the potential for criminal offences where there is a failure to comply with monitoring or investigative measures among other things. Broadly, the enforcement regime enables Coimisiún na Meán to effectively monitor compliance, including through information requests, to commence an authorised officer investigation and, where it finds evidence of non-compliance by a designated online service, to pursue the imposition of a sanction. The sanctions available include significant financial penalties of up to €20 million or 10% of relevant turnover, whichever is higher. This enforcement regime goes beyond what is proposed in the Deputy’s Bill and will ensure that designated entities are appropriately held to account. Also in terms of enforcement, the Online Safety and Media Regulation Act also provides for senior management liability in a similar way to how this is provided for in the Deputy’s Bill. However, I am satisfied that the existing provisions in the Act are sufficient to deter non-compliance.

Alongside the Online Safety and Media Regulation Act, Ireland is in the process of implementing the EU Digital Services Act. This came into force last August and has applied since then to very large online platforms and very large online search engines and is enforced in that respect by the European Commission. From February 2024, it will apply to all platforms. The Government decided to designate Coimisiún na Meán as Ireland’s digital services co-ordinator under that Act so it will be monitored and enforced in Ireland by an coimisiún. The Act introduces a range of obligations, including requirements for certain online services, including the very large online platforms, to complete risk assessments as to the risk of their users being exposed to illegal online content. They must also complete risk assessments as to the exposure of children and young people to age-inappropriate services or websites. These services, including services providing pornographic material, must then address this risk of exposure, possibly through age verification or age assurance. The Minister for Enterprise, Trade and Employment is progressing the necessary legislation to give effect to the designation of an coimisiún as our digital services co-ordinator. This will be in place by February 2024.

Since its establishment, Coimisiún na Meán has been engaged in intensive set-up work, recruiting staff and making preparations to ensure it is ready to take on the relevant additional functions under the Digital Services Act. In July, I appointed a digital services commissioner, who will also work alongside the online safety commissioner to develop our robust new regulatory regime for online safety.

More broadly, the online world has no regard for geographical borders and so it is important that we also take account of other ongoing work at the EU level. For instance, the Better Internet for Kids strategy was adopted in May 2022. Among other things, this strategy aims to develop a code of conduct on age-appropriate design. The code will apply to providers of online services and contain rules that seek to ensure that children are appropriately protected from harmful online content, including through prevention of access to certain online services.

Age verification and age-appropriate design are complex issues which will apply to platforms and websites across the EU and globally. It is therefore crucial that we are fully across developments in this area and in a position to build upon the existing initiatives and measures in place to protect children and young people.

Finally, the need to address wider concerns about children’s access to the Internet and to smartphones is also reflected by my Cabinet colleagues. In this regard, the Minister, Deputy Foley, recently announced the launch of a new Government policy that will encourage parents and schools to carefully consider smartphone and Internet access for children. The policy has led to the issuing of guidance by the Department of Education entitled "Keeping Childhood Smartphone Free". This guidance will be an important resource for parents and primary schools who wish to engage locally on this issue and further consider smartphone access, particularly for primary school children.

To conclude, I agree with Deputy Tóibín that we need to tackle the accessibility of age-inappropriate online content for children. However, I do not believe that the Bill brought forward today will appropriately and comprehensively address this issue. Alongside those concerns, I am satisfied that the significant work the Government has put into the Online Safety and Media Regulation Act, establishing Coimisiún na Mean, implementing the Digital Services Act and participating in a range of important EU initiatives will achieve this important objective, bring about important changes and ensure that children have strong protections in this area.

Therefore, in light of the extensive work already ongoing in this area and the technical and legal issues raised previously, I put the amendment to the motion to the House opposing the reading of the Bill for a second time.

Mar a dúirt mé, tá leasú á chur chun cinn agam chun cur i gcoinne léamh an Bhille seo don dara huair.

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