Thursday, 22 September 2022
Online Safety and Media Regulation Bill 2022: Second Stage (Resumed)
I am delighted to see this Bill progressing. It will take vital steps to define categories of harmful and age-inappropriate online content. It will empower the media commission to create binding online safety codes and provide a mechanism for complaints of harmful online conduct. These are all important steps in the correct direction and the Bill is Ireland's opportunity to change things in this space and to show our leadership on a global stage.
We are, as we know, an EU location of choice when it comes to the headquarters of many social media platforms, and that so many of them are based here gives us a great opportunity to become true leaders in this area. Democracy is fragile and there need to be laws to protect it and citizens throughout the globe, whether they are in Ireland or Myanmar or on Capitol Hill. Unfortunately, however, as we have seen, social media companies can be weaponised and can threaten and destabilise democracy. Engagement-based ranking is dangerous - that is what Mark Zuckerberg told us - yet we are living in a metaverse where what we see on our social media platforms are the posts that will get corporations the most engagement and the most money. Mark Zuckerberg was correct; it is proving dangerous to our values, our health, in particular the mental health of our young people, and our democracy.
In Ireland, we used to look across the Atlantic at politics in the United States and thank our lucky stars that our politics was not fuelled by money in the way it is there. Unbeknown to us, however, platforms were changing that under the radar. The sad reality is that right now, someone can use money rather than message to influence the national discourse and shape democratic decisions. That is not the kind of society or democracy I want to live in. Social media poses amazing opportunities, especially for keeping families and friends connected, and it would probably pose nothing but opportunities if it were not monetised and had not become a global multibillion euro industry, but it did. That has meant that the threats are just getting bigger, such as the threat to democracy and stability through how easily people can engage in the viral spreading of disinformation. There are threats to our health, including our mental health and in particular that of young people, through the generation of patterns of online hate messaging.
Earlier this year, the Facebook whistleblower, Ms Frances Haugen, appeared before the Joint Committee on Tourism, Culture, Arts, Sport and Media to give her input into this Bill. It was fascinating to have her there given all the work she has done in this space. Her bravery and insight have had ripple effects across the globe. Her insight into how we can best protect young people online was not only fascinating but actually really practical. I was particularly struck by something she said about safeguarding children of 12, 13 or 14 years of age and how modern technology like facial recognition could be adopted to make a digital age of consent work. That is a really interesting point because we in Ireland constantly struggle with the idea of a digital age of consent and how to get it to work without needing or requiring someone to share private data as a child's proof of age.
Ms Haugen also had a comment on individual complaint mechanisms. She said they would have to be enacted in a way that does not lead to our new commission drowning in complaints, which is a really important point. I welcome the efforts of the working group to provide exactly this. I am pleased that the expert group recommended the introduction of an independent complaints mechanism for harmful online content on a phased basis that will prioritise children first. That is so important. It is our children and their mental health that most need the protection.
However, we need to strike the right balance between allowing people the ability to escalate their complaints without flooding the system to the point where it no longer works. That is where technology can be utilised for good. It is not that difficult to write software that can provide people with a way of making complaints. If it was done in that way, it could create a mechanism whereby a broad range of complaints could be channelled through our NGOs. That would highlight where we have hundreds or even thousands of people who are all complaining about the same issue. It would enable us to identify and address these issues which, as we can see, the social media companies will not do on their own. Doing that in a manner where takedowns are also required immediately would be so important because they only work if they happen when they should. We have amazing NGOs in our country such as Webwise, CyberSafeKids, SpunOut, Bodywhys; the list goes on. They could be crucial here and they have already been crucial in shaping this Bill.
One concern I have about the Online Safety and Media Regulation Bill can be framed as more of a question. Is it overly focused on content as opposed to the systems set up to optimise and target the content? Perhaps we need to look more at the root of the problem and the algorithms used, and the fact that they need to revert to what they were before 2018 so that reactions and engagements are no longer the driving metrics of social media companies. Investment needs to happen in artificial intelligence around local languages and moderating content so that we are minimising the human cost of censorship. We need mandatory risk assessments that relevant NGOs, like those I mentioned, and other bodies can chime into in order to return accountability to the social media companies, thereby ensuring it is the polluter who pays.
The EU Digital Services Act is a really impressive piece of legislation. There is an awful lot to be learned from looking to Europe on this. The EU Act will ban targeted advertising based on sensitive data like race, political opinions, religious beliefs, health and sexual orientation. It will ban practices aimed at misleading users and using deception or techniques to influence users’ behaviour through what it calls "dark patterns". It will provide for a crisis response mechanism to analyse the impact of the activities of very large online platforms and search engines on a specific crisis. This is an addition to the Act in light of Russian aggression in Ukraine. It will also allow us to seek compensation for any loss or damages resulting from platforms not complying with their obligations.
Ireland is in a unique position. We will benefit from this legislation as an EU member but we are also the European headquarters of so many of the companies about which we are talking. We need to be a leader in online safety. I congratulate the Minister for prioritising this legislation to make us so. This Bill is an opportunity for Ireland to become a global leader in the digital age. It is an opportunity for us to positively impact on children's health and well-being and to positively impact on the mental health of every social media user right across this country, whether he or she is from Lucan, Longford, Clondalkin or Cork. I am really glad that the Minister is grasping that opportunity. I thank her, the NGOs, her steering group and task force for all working so collaboratively on this Bill. I hope to see it strengthened further. I know it will have a real impact on people's lives.
I welcome this Bill and congratulate the Minister on making this progress. I was Minister for Communications, Climate Action and Environment when we started this journey and it certainly took much innovation and thinking about what other countries had done and what would be most appropriate in Ireland. I know the team put a lot of work into assessing the choices that have led to the Bill that has finally been presented here. It is really important that we create obligations on these platform companies in the areas the Minister has singled out. We need to create codes of conduct with independent oversight by the commissioner. It is correct that the Minister has created the scope to evolve new arenas where codes may be needed.
Looking back through history, the printing press was a revolution that transformed society in terms of education, freedom of expression, research, scientific endeavour and political debate. The Internet and social media platforms are another such revolution. They provide almost barrier-free access to information, the ability to express one's view and access to entertainment. As other speakers have said, while the Internet has extraordinary potential and has transformed people's access and opportunity, it is also the avenue to fake news, manipulation and vulnerability for people who could become victims of what happens online. It seems to me that it has taken us hundreds of years to evolve the sort of protections that are in place for print media in terms of defamation, responsibility for what is published, privacy, protection of the weak, protections against discrimination and so on. That has been a continuing evolution over hundreds of years. The reality is that much of this has to be reinvented in the digital space, but we do not have the luxury of waiting hundreds of years for that to evolve. It is changing the way in which people live so dramatically and quickly that we need to collectively develop approaches. This is a very important first step but in reality, it is only a first step.
The gains to society from these opportunities are, of course, enormous. They will give, and are giving, a new fillip to education, research, innovation and, indeed, democratic participation. We are still a long way from seizing the opportunities in education that digital transformation offers us and we need to come to terms with that. These side effects on our society are ones we need to think long and hard about. As outlined in the Bill, the online world must be safe. We are just starting on that journey.
One of the features that makes it very different from traditional publishing is that the Internet and social media is a two-way system in which customers and consumers surrender the most intimate details of their lives to the providers. The gathering and use of this information is an instrument of incredible power and penetration, with all the algorithms and unknown and possibly unknowable biases that are built into how people are targeted. It can target people, however. It can publish what it likes to a large extent. It can create the impression of a bandwagon in artificial ways. It can create the impression of equality between fact-based science and fiction. As Deputy Higgins said, its aim is audience, not evidence. This creates hazards. We are not trying at this point in this Bill to regulate much of that, although no doubt the codes of conduct will start to touch on how this gathered information is to be deployed. It is really important that we see the Online Safety Commissioner break new ground and become very much aware of what is happening in other countries.
Open and pluralist democratic societies like ours need to respond. Social media generally has not created a great commons in which democratic debate proceeds and we have the great ferment of ideas and exchange. The tragedy is that it has created insider camps and capsules in which people do not hear any views other than those of like-minded people. The more divisive the message, the more attractive some of those groups become to build audiences. At its heart is not truth, justice and the dignity of the person, which ought to be at the heart of the democratic engagement we try to create. We have a problem here. We see that other states which take a different approach to their citizens have rigorously controlled these platforms. Unlike us, they have extraordinary controls and use the two-way system I have described to track and trace what their populations are doing and to cut down on any activity that would be seen as inimical to the interests of the governing elite. We are living in a world where some states approach social media in that way. In the democratic world, we are at sea as to how we will manage this. People who use social media live in a world in which they can vote every minute with their likes. This gives people a certain satisfaction, but it is far from the deliberation that politics needs if we want to nurture and protect policy based on evidence and respect for individuals. We need to see evolve, whether at European or national level, new institutions tasked with fact-checking and evidence-checking. We must create authorities, not just codes of practice that try to catch the most damaging extremes of what is happening. We also need some form of regulation that allows quicker fact-checking and access to institutions in which the public can have confidence. Such structures must achieve a standing within communities whereby citizens value what they say rather than the free-for-all that is out there.
We have all seen that the connection between us, as politically elected people, and our voters has become more difficult over time for all sorts of reasons, including changes in society, communication and the way people live. We must find a substitute for that and find ways in which people can have a connection with those whom they elect. It is a challenge to us and the parties we represent to think how that can be done. In my party I have been involved in the creation of what we call a policy lab, which tries to reach out to a wider range of people and interest them in the shaping of policy. It is one small way in which we can do that as a party. We must think more broadly as a political community about how that can happen. The Ceann Comhairle had a very useful session that I was fortunate to attend where that sort of outreach was happening on a non-partisan basis.
It has been argued that there is a risk of overreach in terms of the restrictions we may be putting in this Bill on freedom of expression. The comment has been made that we are seeking to make something illegal online that might be legal offline. The power of online communication and the way it can be used within that system is so dramatically different that we are right to stray a bit beyond what we have been used to as standards within the print media. To be fair to the Minister, the democratic control that she has put into the Bill - how new areas of harm would be identified for the evolutions of codes and so on - is pretty robust. If we continue to be worried, perhaps we could elevate the online commissioner to something akin to an ombudsman with presidential appointment, or different ways of appointment, and direct reporting to the Dáil to acknowledge the importance of that role.
The codes to be developed by the online commissioner are very much to be welcomed. The one point I worry about is that if these platforms do not have a duty of care within themselves, and we are waiting for the online commissioner to catch up with a code that regulates the use of algorithms or whatever it is, like most financial regulators, we will always be arriving breathless and late to the crisis point that we need to address. There needs to be a duty of care and a precautionary approach built in as an obligation of these platforms. The commissioner can vet whether they are adequate.
There is no doubt that the generation of local and cultural content is threatened by online platforms. The advertising models they have depended on are hugely undermined. This is something the Minister recognises. I congratulate her on her efforts. We must continue to strive in that regard. The Bill will take some steps in that direction to create the opportunity for local, relevant and reliable cultural and sporting content to continue to be generated to create that commons within our communities that is so important and which is very much at risk from those I call political buccaneers, whom we have seen in many countries trying to undermine the values we hold so dearly.
I thank the Members of the House for their valuable contributions. The level of engagement during pre-legislative scrutiny and legislative scrutiny here and in the Seanad has been most welcome and of considerable benefit in ensuring this Bill meets our needs, both today and in the future.
I apologise to the members of Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media for the delay in sharing the report of the expert group on an individual complaints mechanism. This was an unfortunate and unintentional administrative oversight, especially as the committee was so involved in the work that led to my decision to establish the committee.
Members have raised a range of important issues. While I cannot address them all today, I will briefly respond to a number of points. Deputies Munster and Mythen raised the issue of Oireachtas oversight of the activities of coimisiún na meán. The Bill as it stands contains numerous provisions relating to Oireachtas oversight, including the direct accountability of the executive chairperson and the commissioners to relevant Oireachtas committees. However, as legislators we must be mindful that an coimisiún will be an independent regulator, as required by EU law. As such, it will be responsible for carrying out its day-to-day activities, subject to Oireachtas oversight. For example, regulatory codes such as media codes, media rules and online safety codes will be subject to negative resolution procedures before these Houses.
Deputies Munster, Mythen, Kelly, Cannon, Kenny and Patricia Ryan raised the issue of appropriately resourcing coimisiún na meán, including with expert staff. At present, the recruitment process for the roles of executive chairperson, online safety commissioner and media development commissioner is ongoing and is expected to conclude in November. Work is continuing with the Department of Public Expenditure and Reform to finalise the estimated medium- and long-term staffing and resourcing requirements of an coimisiún. A key part of this is identifying the necessary expertise required by coimisiún na meán in order to fulfil its functions. In this regard, recruitment is expected to take place in tranches over a period of time following the appointment of the commissioners and the establishment of an coimisiún. I agree that there are specific skill sets required and that this is a rapidly changing environment. I am committed to supporting an coimisiún in delivering on its goals in this respect.
Deputies Mythen, Ó Cathasaigh, Gould and Patricia Ryan raised the regulation of gambling. As Deputy Mythen noted, my colleague the Minister for Justice is in the process of bringing forward a Bill to establish a new gambling regulatory authority and, to that end, has recently recruited the CEO for that body.
On Report Stage in the Seanad, I tabled a Government amendment to ensure that coimisiún na meán would work with this new body to strengthen both the regulation of gambling and media and online safety. I am confident that this approach will enable the two regulators to collaborate effectively in addressing their shared challenges.
While freedom of expression is a key value and virtue of this House, Deputies Munster, Kelly, Cannon, Tully and Barry specifically raised concerns in relation to protecting freedom of expression and striking an appropriate balance of rights within the Bill. More specifically, a number of Members raised concerns in relation to section 46J(1)(a) which concerns duties on broadcasters and video on-demand services, including a duty not to broadcast or make available anything which may reasonably be regarded as causing harm or offence. I must state that this provision is carried over from the 2009 Act and is currently a part of Irish law. However, during the Seanad debates on this Bill I committed to examining this issue further with a view to potentially tabling an amendment on Committee Stage in the Dáil and that is what I am presently doing. Therefore, I acknowledge the concerns that have been raised and I am examining them.
Deputies Munster, Tully, Kelly and Gannon raised the working conditions of content moderators working for online platforms. While I agree that this is an important issue, it is a matter of employment law and is something that the Tánaiste and the Department of Enterprise, Trade and Employment have been examining. I will ask my officials to liaise with their colleagues in that Department on this matter.
Deputies Munster, Kelly, Gannon, Kenny, Barry and James O’Connor raised the issue of disinformation, which is a significant and complex issue and requires a distinct and targeted response. At EU level it is being dealt with through the completed and strengthened code of practice on disinformation, which will be linked to the Digital Services Act. The Act will set out standards for platforms in dealing with this issue. Coimisiún na meán will ultimately be the main regulator for the Digital Services Act in Ireland. Therefore, this is how we plan to regulate operationally for disinformation in Ireland, bulwarked by the EU code of practice. In addition to this, my Department is planning to establish a working group, comprising relevant Departments, agencies and key stakeholders, including the European Digital Media Observatory hub at Dublin City University, to progress the recommendation of the Future of Media Commission to create a national counter disinformation strategy in order to complement the work of the EU in tackling disinformation.
A number of Deputies raised matters relating to media sustainability. In this regard, Deputies Canney and Michael Collins raised issues in relation to local radio, including access by local radio stations to the journalism bursary provided in the Bill. I can confirm that I intend to propose an amendment on Committee Stage in the Dáil to ensure local radio stations have access to the bursary.
In relation to a potential content production levy and scheme, it is intended that this levy will be introduced by an coimisiún subject to an assessment of its viability and of whether it would have any negative effects. This is because there are risks as well as benefits for the Irish audiovisual sector in the introduction of a levy. Some stakeholders have asked whether I would set out the exact percentages of and process of the levy in the legislation. I think that such an approach would be inflexible and that an coimisiún, as an independent body, should have the power to design and enforce the levy and to change it over time. I expect that an examination of the content production levy will be among the priorities of an coimisiún upon its establishment.
Deputy Higgins raised the question of algorithms. Online safety codes made by the online safety commissioner can address the use of algorithms to deliver, recommend and moderate online content. This is key to this systemic framework to regulate online platforms and to tackle the availability of harmful online content. Deputy Pringle raised issue of private messaging services. These services are covered by the Bill but only in respect of offence-specific online content of which there are 40 categories linked to existing criminal offences. This means that coimisiún na meán can set out obligations for these services through online safety codes for how they address this type of content. This includes standards for complaints handling, reporting requirements and technical mechanisms to reduce the availability of such content.
Deputy James O'Connor raised the educational role of coimisiún na meán. The online safety commissioner will have a role in carrying out educational initiatives, such as public information campaigns, and will work with existing educational bodies such as the Department of Education through webwise.ieand the National Council for Curriculum and Assessment. An coimisiún will also be empowered to work with local, community and sporting bodies on training and educational initiatives, including media literacy and online safety. The commissioner will also be able to endorse third-party providers of online safety educational materials which will help schools to source appropriate and robust online safety materials. There have been some suggestions that an coimisiún should have a role in accrediting certain educational materials. I would not consider it appropriate for this regulatory body to overstep into the field of professional accreditation, but I think a good balance is struck by allowing the endorsement of such materials and allowing the delivery of educational initiatives and the provision of support to educational bodies.
I thank the Members of the House for their engagement with this vital legislation. While it is complex and expansive, it is necessary. In this regard, a number of Members have raised concerns that the Bill is too large. I take a different view. The Bill is comprehensive and sets out regulatory frameworks for media and online safety which are responsive and adaptable to changing circumstances. In our fast-paced, information-driven era, this is sorely needed. I know that a number of Members intend to table amendments to the Bill as it passes through this House. In this regard, my officials are available to meet with any Deputy who intends to introduce amendments in order to tease out any issues that may arise.