Catherine Murphy (Kildare North, Social Democrats) | Oireachtas source

The Social Democrats support this legislation. Before getting into the detail of it, I want to wind back the clock to April 2023 when the general scheme of the Bill was before the Oireachtas Joint Committee on Enterprise, Trade and Employment. It sets the tone for where I want to take my contribution. I am not a member of that committee and, as such, I did not have the benefit of assessing the merits of the Bill in pre-legislative scrutiny. The introduction of the pre-legislative stage is one of the better reforms we have had. It gives an opportunity to go into the detail of legislative provisions at an early stage.

A couple of issues are raising red flags for me. The first is that a waiver was sought in respect of the Bill. The other is that we are tight on time to get it over the line. As the Minister said, mid-February is the mandatory EU deadline. We absolutely should comply with that deadline. I say this in the context of the designations made by the European Commission in regard to some of the online platforms and search engines and how they relate to us here in Ireland. The EU has applied status to 19 of those entities as being very large online search engines or very large online platforms. Thirteen of them are established in Ireland, including Google, Google Search, X, Facebook and so on. At issue is the scale of some of these platforms, the volume of information posted on them and the pace at which they can gather momentum. Things move now at social media speed and that can amplify harm because not addressing issues quickly can add to the problems.

Going back to the pre-legislative scrutiny of the Bill, I read the transcript of the proceedings of the joint committee and its resulting report. What jumps out at me is the dissatisfaction of the membership at being tasked with carrying out the scrutiny. I tend to agree with their points. The committee, in effect, was asked to review a Bill to provide for the appointment of a competent authority, namely, the media commission, that was under the remit of another Department, that is, the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media. No doubt the Minister will fall back on the same lines the officials gave during the course of the committee meeting, which is that it was his Department that negotiated the EU Digital Services Act originally. There is a real difficulty in this regard because we want Oireachtas committees to have a degree of expertise. It is only occasionally that a mismatch occurs but, when it happens, the result is that the committee does not work as effectively as it could. The net point is that the enterprise committee rightly stated it was not fully knowledgeable on the workings of the media commission and that the expertise in this matter lies with another committee.

Coimisiún na Meán will implement and enforce the EU Digital Services Act in Ireland. Can the Minister tell us today what additional resources have been provided to it for that purpose? I understand his Department made an allocation of €2.7 million to the commission in respect of its functions relating directly to the Digital Services Act and its role as the digital services co-ordinator. Does he believe that allocation will be sufficient? I am a member of the Committee of Public Accounts and one of the things we repeatedly see is that where there is a failure of regulation or whatever, when we start drilling into it, it is very often a resourcing issue rather than a legislative issue. Often, we are compliant in theory but not in practice. This is an area in which we must comply in practice.

The funding of €2.7 million was to provide for an additional commissioner and more staff for Coimisiún na Meán. Will the Minister update us in that regard? What is the headcount and the skill set as of today? We are two months out from the requirement to have the digital services co-ordinator role operational. Is that nailed down at this stage or will it happen after we enact this legislation? What degree of workforce planning has been done by the media commission in advance of the passing of the Bill? How will key performance indicators, KPIs, be set for the commission in the context of its work as digital services co-ordinator? As with any other regulatory body, we may not really get an insight into how it works until it is up and running, but we can predict some of the issues in advance by thinking the whole thing out and resourcing it properly.

As expected, there will be a requirement to have adequate in-house expertise within Coimisiún na Meán and the operational capacity to work through its caseload. That was highlighted by the joint committee in its pre-legislative scrutiny of the Bill. As I understand it, each member state will have a direct channel to report issues emerging on its territory and to request assistance from the competent digital services co-ordinator in the member state in which the online platform is established. We have a particularly large number of those platforms located here. Will Ireland be doing the heavy lifting when it comes to regulation? I assume that will be the case.

The Department’s record when it comes to defining the role of new agencies and resourcing them is not ideal. I give two examples, one of which frustrated me hugely. This was when we had engagement on the Corporate Enforcement Authority. I recall there was real difficulty in getting the allocation of gardaí to the agency. We were given guarantees as to when it would be up and running. The critical point was getting the allocation of resources and which Department would pay for it. It is often not a legislative failure but other things that become a problem.

We must also look at the capacity of the Competition and Consumer Protection Commission. Has it had the kind of resource allocation it will require? The Minister of State might go into some detail about when that will happen.

Getting on to the substance of the Bill, the media commission will be tasked with handling complaints about alleged infringements of the regulations. It will, quoting from the briefing note provided to us, "enter into binding commitment agreements with providers under which the provider agrees to take measures that appear to address an issue related to compliance by the provider with Articles of the DSA". Will the Minister of State define what a binding commitment agreement is? The commission will also “take measures that appears to address an issue related to compliance”. In the context of the Act, it appears to be quite subjective or very loose. The media commission may issue compliance notices to providers that infringe on the articles of the Digital Services Act. Is there a timeframe for compliance to be met once an instruction has issued? We do not want to see a situation where we are asking questions about something taking an inordinate length of time and a backlog forming. That goes back to the resourcing issue I mentioned.

The media commission may seek a High Court order to have an Internet service provider block access to a provider. I am not clear on how that will work. A third party is drawn into the enforcement action. It could be anticipated that that would be contested, for example. Further to that, I know the Law Society made a similar observation in its submission on the proposed Bill.

The media commission will also be responsible for, "certification of independent out-of-court dispute settlement bodies to resolve issues between users and platforms". Is this just another layer of bureaucracy? If a settlement is arrived at, a legal representative is present. Surely that is binding. Does it require to go to the court in every case? Is this something the media commission needs to concern itself with or what advice will it have regarding handling this?

I want to touch on the point of algorithms. There is already an EU regulation requiring very large platforms to carry out risk assessments and mitigate them when there is an issue of concern. These assessments are audited annually. However, I am not clear on who carries out the audits. Is it at European level, where the lead rests when it comes to enforcement, or will it fall to the media commission? I presume it will be the responsibility of the media commission when it comes to the platforms located here. Please correct me if I am wrong on this.

The media commission will issue the status of trusted flagger to certain bodies, NGOs and others it sees as appropriate. Has the media commission nailed down the scheme for this at this stage or does it still need to be designed? Has any NGO approached the media commission declaring an interest in gaining this status? What measures are in place so that a platform like Meta, for instance, does not drag its heels when a trusted flagger contacts the platform about content and that flagger actually receives priority?

I take the point Deputy O'Reilly made regarding potential bias. She cited the example of Gaza, and it is a point very well made and a very good example she used. How will that be assessed? The regulator itself is potentially problematic or there may well be different interpretations depending on the locations and the particular country. We all have our biases. Having said that, regulating an organisation like X needs the might of a bloc like the EU to ensure a power balance, and I completely understand that.

As I said earlier, we all move at social media speed nowadays, and that can amplify damage if something is not addressed early. It used to be that somebody would send a letter which would take several days to arrive. People had time to read it, to construct a response and then the reply went back into the snail mail. People had time to think. This does not happen with social media. The speed of social media is a real issue in making sure this legislation will be effective in getting offensive material removed very quickly. This comes back to the platforms themselves. Obviously, the regulation will be very important, but they should not have to be made to do so. Unfortunately, the very fact we are talking about this legislation means they do.

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