Louise O'Reilly (Dublin Fingal, Sinn Fein) | Oireachtas source

I thank the Ministers and, especially, the team in the Department for engaging with us for the briefing and for the helpful information exchanged. Sinn Féin will support the Bill on Second Stage. We will bring forward amendments on Committee Stage. That will not surprise the Ministers but they will be brought forward in a constructive and not obstructive spirit. We intend to work with them. We appreciate the deadline and will do our best to ensure it is adhered to in good time for 17 February, and not at a minute to midnight on the night before. Any amendments we bring forward will be done with the intention of strengthening the legislation and being constructive.

This is, as the Minister said, complex legislation, both technically and politically. It impacts national and European law. Last November, the Digital Services Act came into force and it applies directly across the European Union.

The purpose of the EU Digital Services Act is to impose a harmonised set of obligations on intermediary service providers, which include services such as Internet service providers, cloud services, messaging services, marketplaces or social networks, which have an intermediary role in connecting customers with goods, services and content online. The European Commission has primary responsibility for regulating these entities but will do so in concert with national authorities. As 13 of the very large online platforms are established in Ireland, we have a critical and high-profile role in supporting the EU Commission to regulate them.

The stated purpose of the Digital Services Act is to: ensure a safe, predictable and trusted online environment; address the dissemination of illegal content online; address the societal risks that the dissemination of disinformation or other content may generate, and within which fundamental rights are effectively protected; and ensure innovation is facilitated. It seeks to make the services used by people in the EU more transparent. People will have more information about recommender systems and how ads are targeted at them, which is a good thing. There are protections against profiling of minors to make sure content is not inappropriately targeted at them. There will be greater access to the data held by these companies, so there will be further knowledge about their algorithms and how they operate. This data will help design future regulations and inform policy.

An internal complaints mechanism will also be needed. Companies will have to respond faster and be transparent about who people are actually dealing with. The EU Digital Services Act also sets out the framework for supervision and enforcement of the obligations on the providers of intermediary services. The provisions of the EU Digital Services Act that impose obligations on the providers of online intermediary services will have direct impacts here. The Digital Services Bill does not adapt or add to these obligations. That matter is now settled European law. However, I will raise some political concerns regarding the application of the EU Digital Services Act by the EU Commission later.

The Digital Services Bill will give effect to the elements of the EU Digital Services Act that require national implementation measures to designate and empower the relevant competent authority within the regulatory framework to supervise and implement the EU Digital Services Act. In this regard, the legislation designates Coimisiún na Meán as the Irish digital services co-ordinator. It also provides for other miscellaneous matters, including the liability regime for providers of online intermediary services, the harmonisation of court orders to take down illegal content from online services, along with the procedures for awarding trusted flagger status, certifying entities as out-of-court dispute settlement bodies and procedures for dealing with complaints by users or bodies mandated to act on their behalf.

It is important to note that the Digital Services Bill only implements the regulatory framework. It does not deal with the substance of obligations on the technology companies, so it does not deal with the substance of online safety. The Bill assigns added functions to Coimisiún na Meán, which already has a role in the area of online safety, and ensures that the regulator can impose fines and will put in place procedures to implement the EU Digital Services Act.

The Bill designates Coimisiún na Meán as Ireland's lead competent authority for the EU Digital Services Act, to be known as the digital services co-ordinator for Ireland. An Coimisiún has been set up since March 2023 further to the provisions of the Online Safety and Media Regulation Act 2022. The provisions of the Digital Services Bill will provide for new functions related to online content. Coimisiún na Meán is under the remit of the Minister with responsibility for media. There are many areas where the Digital Services Act overlaps with an coimisiún.

The Bill also provides for the powers that Coimisiún na Meán will have in that role. However, Coimisiún na Meán already has many of these powers, such as the power to investigate and impose fines. Accordingly, the Bill mainly adapts those powers to the requirements of the EU Digital Services Act. To comply with obligations for supervision and enforcement of the relevant provisions of the EU Digital Services Act, the Bill empowers Coimisiún na Meán to carry out a number of functions, such as: handling complaints about alleged infringements of the regulation; entering into binding commitment agreements with providers under which the provider agrees to take measures that appear to address an issue regarding compliance by the provider; and issuing compliance notices to providers for infringement of articles of the Digital Services Act, among others. By appointing Coimisiún na Meán as the digital services co-ordinator, efforts can be made to ensure that the different legal instruments are used in a coherent and effective fashion to address issues such as content that his harmful to minors and vulnerable adults, hate speech and misogyny, threats of violence and non-consensual sharing of images or videos.

Sinn Féin is supportive of this Bill and the EU Digital Services Act insofar as it seeks to regulate VLOPs and provide a more equitable online environment. It addresses illegal and harmful content, reins in the powers of big tech, and gives Internet users more control over their digital lives. The Minister said in recent weeks that he very much welcomes the publication of the Digital Services Bill. The events of recent weeks in Ireland and abroad have demonstrated the risks posed by illegal and harmful online content and the spread of disinformation. They have underscored the need for a comprehensive and effective regulatory framework to protect individuals as well as society at large. The Bill, once enacted, will be an indispensable component of that EU-wide framework.

The Minister is correct. Curbing the risk posed by illegal and harmful content, as well as the spread of disinformation, is an objective that we should all be aiming for. However, the are also recent examples where the EU Digital Services Act has been applied in a manner that could be seen as a threat to free speech and indicative of the risks that exist with regard to how certain definitions are interpreted. Matters regarding the shape and nature of the EU Digital Services Act have been settled but there are differences of opinion on the interpretation of the Act and the definitions that underpin it. In 2018, disinformation was defined in an EU code of practice on disinformation. The definition states that disinformation is:

"verifiably false or misleading information" which, cumulatively,

(a) "Is created, presented and disseminated for economic gain or to intentionally deceive the public"; and

(b) "May cause public harm", intended as "threats to democratic political and policymaking processes as well as public goods such as the protection of EU citizens' health, the environment or security".

In recent weeks, since the outbreak of the Israel-Hamas war, there has been growing apprehension about the unintended repercussions of the EU Digital Services Act on the digital rights of Palestinians and other vulnerable communities. Online information has been taken down amid accusations that it constitutes harmful content or disinformation, only for the poster to open a complaint and prove the content is legitimate and valid. This highlights how the EU Digital Services Act could potentially be applied with bias, as the interpretation of disinformation can be politically applied. For instance, Commissioner Thierry Breton recently emphasised the global impact of the Digital Services Act by warning X, Meta and TikTok of their obligations under the text with regard to the war in Palestine. The primary issue here lies in the Commissioner's and the EU's framing of the situation, which aligns closely with the mainstream narrative that neglects the Palestinian perspective and ongoing human rights violations. It must be stated that Ireland stands outside this narrative, and the people, media and politicians are generally even-handed and fair in their analysis of the current conflict.

My point here more broadly refers to the narrative that pervades at EU Commission level and in several other EU countries. This narrow focus perpetuates a one-sided narrative that overlooks the complexities and nuances essential in understanding the situation's full scope. This is of concern in Commissioner Breton's portrayal of the Commission's role in enforcing the EU Digital Services Act, which, in my opinion, is exacerbated, or could potentially be exacerbated, by comments regarding the conflict made by the President of the EU Commission, Ursula von der Leyen.

Much of the apprehension primarily revolves around the prioritisation of speed over due diligence in content removal. This approach has resulted in the unjust removal of legitimate content, breaching EU Digital Services Act provisions in a context where nuanced, contextual understanding is crucial. From memory, this happened with a clip regarding the current war in Palestine in an episode of the "Free State" podcast, where a social media post was removed following an accusation of disinformation or harmful content, only for Mr. Joe Brolly and Mr. Dion Fanning to contest this and prove it was factual and fair.

The zeal to combat illegal content and disinformation at any cost has exerted pressure on very large online platforms, such as X, Facebook and TikTok, to act swiftly and decisively, even if it means relying on imperfect and opaque algorithmic tools to avoid liability and public scrutiny. Unfortunately, this has led to the unjust and disproportionate removal of lawful content produced by Palestinian and foreign journalists, as well as human rights advocates documenting the on-the-ground reality. Consequently, this practice distorts vital information necessary for global understanding and monitoring of human rights abuses. Instead of adhering to the principle that any restriction on freedom of expression must be necessary and proportionate, online platforms have removed Palestinian-related content and suspended accounts. This raises the question of how Coimisiún na Meán will operate following the passage of the Digital Services Bill with regard to interpreting disinformation.

Concerns have also been raised recently regarding the EU Digital Services Act in terms of how SMEs and microbusinesses can financially afford to comply with the EU law. As stated previously, there is a legitimate fear that large platforms will have a tendency to block too much, removing content according to the fast-paced, blunt determinations of an algorithm, while appeals for the wrongfully silenced will go through a review process that, like the algorithm, will be opaque and arbitrary. The review will also be slow. Speech will be removed in an instant but only reinstated after days, weeks, or potentially even months and years. At least the largest platforms will be able to comply with the EU Digital Services Act while it remains to be seen if SMEs and microbusinesses will be able to operate in Europe if they cannot raise the money necessary to pay for legal representatives and filtering tools.

Thus, it is argued that the EU Digital Services Act sets up rules that allow a few tech giants to control huge swathes of European online speech because they are the only ones with the means to do so. Within these tech companies, algorithms will monitor speech and delete it without warning and without regard to whether the speakers are bullies engaged in harassment or survivors of bullying describing how they were harassed. We hope Coimisiún na Meán will shed more light on such matters and will work with the EU Commission to address these concerns.

The designation of vetted researchers is catered for in the Bill. Approved researchers will get access to data from large online platforms and search engines. In order to become a vetted researcher, an individual must apply to the EU Commission to be recognised as such, with the application process including an assessment by a member state's DSC. The Commission can request more information before making a decision. If satisfied, it will approve or reject the application. The Commission can also revoke a vetted researcher's data access if they no longer meet the required conditions. This decision can be based on the Commission's findings or on information from third parties. This may not seem an important political point but, as already stated, the EU Commission may seek to only designate vetted researchers it feels align with its views. Thus, the approval of a designated researcher may potentially be applied in a political manner. This remains a concern and is an area that should be closely monitored.

The enterprise, trade and employment committee recommended in its pre-legislative report that provision be made in the legislation to enable public interest research based on data provided by regulated platforms to facilitate research access, conduct data analysis and manage collaborations. However, this has not been included in the Bill. On a similar point, the appointment and revocation of the status of trusted flagger is extremely important. Section 191 describes how to remove this status after complaints but this could potentially be very slow. In the meantime, a platform loses indemnity for certain types of illegal content if it does not act on complaints from a trusted flagger. What will be done to ensure political partisan groups do not gain the position of trusted flagger as a means of controlling or influencing content? Will the Minister elaborate on what will be done to ensure that bias is not applied?

It will be necessary to reference who puts in take-down complaints and their impact when seeking to revoke a status. Article 19 of the Digital Services Act describes a complaints mechanism for trusted flaggers which is only open to online platforms. Article 19.6 contains the phrase "on the basis of information received by third parties". Perhaps the legislation could be amended to explicitly state that third parties can complain about the actions of a trusted flagger, not just online platforms, and that the database of trusted flaggers for submission to the Commission be reported each year with aggregate details of complaints, including unsuccessful complaints, for appraisal.

The EU Digital Services Act perceives the problem on the Internet as one of illegal content and the role of regulation being to assign responsibility to different bodies to remove this content. This view of the Internet and current harm reduction regime was cultivated by large tech companies as they seek to discuss their difficult burden of adjudicating between the rights of free speech and expression and the rights not to be constantly presented with gambling advertisements or pro self-harm videos on your phone. An alternative view is that this technology is deployed as a product with inherent features in the feed or presentation of content which should be subject to product safety regulation to minimise the very real harms occurring. Current court cases in the US allege that digital platform software products were created for their addictive properties and that this is causing harm to children, which needs to be addressed as a product safety issue. The Digital Services Act does not take this position. The role of the national co-ordinator is limited to focusing on content and take-down notices in Ireland, with the Commission doing the heavy lifting on large systems and algorithms.

There are still several important points. The ability of Coimisiún na Meán to work with the CCPC on investigations and the apparatus for same is important. The Internet is not media; it impacts every aspect of life as we develop regulation. Knowledge within the Government of the impact of certain online practices will be found outside of the media commission. It is welcome to see this joined-up approach. A mechanism for civil society bodies to engage with the reporting and take-down of illegal content is welcome and the trusted flagger process seems a sensible mechanism. As previously mentioned, it is open to abuse in a polarised and highly political media landscape. It is important to have as open and accountable a process as possible. In addition to the requirement to report the appointed trusted flaggers to the commission, it is important that flagged content is reported to see who edits the Internet and for what purpose. Coimisiún na Meánshould publish a list of complaints, actions and flaggers each year, as well submitting it to the EU Commission. Furthermore, complaints about trusted flaggers should be open to other third parties, not just platforms. Responsibility for auditing the algorithms of VLOPs at European Commission level is welcome but the appointment of vetted researchers by the Irish commission important tool. Areas such as targeted advertisements are specific to each territory and it is important that research is undertaken on the Irish media environment. The legislation seems unsure about who will initiate and recruit researchers. If the researcher believes they have a research project which could be covered by a reasoned request under Article 40.4 of the EU Digital Services Act, the Commission should support this once it complies with the public service requirements of a researcher being certified as a vetted researcher.

The enterprise, trade and employment committee also recommended in its pre-legislative report that Coimisiún na Meánbe satisfactorily resourced with the level of staffing and legal expertise required to allow optimal operational capacity and enforcement. It further recommended that highly precise detail be given about the roles, individual functions and responsibilities of Coimisiún na Meán. The Department of enterprise maintains that Coimisiún na Meánhas a budget of €6 million for 2024. However, the coimisiún submitted a business case outlining in detail the additional roles and skills required for operation in 2024, as it moves from the setting up phase to official designation as a digital services co-ordinator. It is essential it gets the necessary support and funding to ensure it has the resources, human and financial, to deliver on its remit as a digital services co-ordinator for this State.

It is essential that the CCPC receives the necessary funding to meet its new responsibilities under the Bill. The Minister indicated that an industry levy will be used to ensure the necessary funding for Coimisiún na Meán and the CCPC is there to meet their obligations under the Bill and the Digital Services Act. We still await clarity on this.

I look forward to working with the Government quickly. I do not mean working with it in an elongated manner. That is not a metaphor for thousands of amendments intended to obstruct. I hope I made clear in my contribution that the intention is to be constructive. We can get this right and work with the Government to ensure it is done properly. I apologise but I cannot stay. I have stayed for as much of the debate as I can. I will have to leave.

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