Seán Canney (Galway East, Independent) | Oireachtas source

I thank Senator Freeman and her co-sponsors for introducing this Private Members' Bill. As has been said, the online world brings enormous benefits. We see these benefits in our everyday lives, from small business owners using new technologies to improve their products and services to families communicating with loved ones abroad in an instant. However, as the online world becomes more present in our day-to-day lives, we are increasingly aware that it presents risks, especially to vulnerable members of society, including children.

On behalf of the Government, I thank Senator Freeman for the work she has put into producing the Bill. The intention of the legislation is to ensure our children do not have the opportunity to access content which is manifestly designed and intended to have a negative impact on their health and well-being. The Bill seeks to achieve this by putting in place a notice and take-down system for harmful material to be enforced by the Commission for Communications Regulation, ComReg.

The type of material which Senator Freeman is seeking to have removed from the Internet or blocked from Irish audiences represents some of the worst examples of harmful content available online. Any website, the sole purpose of which is to encourage children or indeed any user to commit self-harm or suicide or to engage in practices which are detrimental to their health, for example, pro-anorexia websites, represents the worst of humanity.

Online safety for all, but especially for children, is a priority for the Government. For this reason, the Government will not oppose the passage of Senator Freeman's Bill tonight. Our commitment to online safety is most clearly demonstrated by the publication and ongoing implementation of the Action Plan for Online Safety 2018-2019.

Appearing before the Joint Committee on Communications, Climate Action and Environment recently, the Minister, Deputy Richard Bruton, stated that the era of self-regulation in this area is over. If this Oireachtas is to pass legislation, we must ensure that any proposal is robust and meets the urgent public policy objective of protecting children online. Following his recent appointment, the Minister sought urgent legal advice from the Attorney General. That advice will be important.

The House will be aware that in July the Taoiseach launched the Government's Action Plan for Online Safety, which is the first of its kind in this country. The plan commits the six key Departments, namely, the Departments of Communications, Climate Action and Environment; Business, Enterprise and Innovation; Justice and Equality; Education and Skills; Health; and Children and Youth Affairs, to implementing or substantially progressing 25 actions before the end of 2019. The plan is a whole-of-Government approach to online safety, which reflects the fact that there can be no single Department with responsibility for the Internet as the Internet cuts across all policy areas and remits. The actions contained in the plan are wide-ranging and include education, guidance and awareness-raising measures, legislative measures and the establishment of robust monitoring and implementation structures. Senators have spoken about these different aspects.

I take this opportunity to highlight some of the highly important work ongoing under the action plan. The National Advisory Council for Online Safety, which I chair, was established as part of the action plan. The council is a multi-stakeholder forum with a broad membership drawn from key stakeholder groups, including non-governmental organisations and industry.The terms of reference of the council are designed to make the most of the experience and knowledge of its members. They include providing advice to Government on online safety issues, identifying emerging online safety issues where Government may need to take action, inputting into the development of a wide range of online safety guidance materials and reviewing national and international research. The council has met twice since its establishment in October and has set up subgroups to progress its work, including conducting a foundational online safety research project in 2019. It is my intention that the work of the council be transparent and that the minutes of its meetings therefore be available on the website of the Department of Communications, Climate Action and Environment. The action plan also commits the Government to working with the Oireachtas Joint Committee on Communications, Climate Action and Environment to explore the issues arising regarding the Digital Safety Commissioner Bill 2017. That Bill, which was introduced by Deputy Ó Laoghaire, seeks to tackle online safety issues in a similar way to the Senator's Bill by putting in place a "notice and take down" system for "harmful digital communications". An important difference between the Bills is that the "notice and take down" system proposed in the Deputy's Bill would apply to content, whereas the system proposed in the Senator's Bill would appear to apply to websites or services as a whole. As I have said, the views of the Attorney General on the establishment of a digital safety commissioner have been sought. Many of the same legal issues arise in respect of the Senator's Bill, a number of which I will now briefly outline.

I will first address the issue of the definition of "harmful materials" in the Bill. The definition in section 3(2) of the Bill contains four parts. In the first three parts of this subsection, the Senator has set out to define the type of activity that could be regulated. This type of definitional work is absent from the Digital Safety Commissioner Bill. The fourth part of the subsection refers to content containing "encouragement of any unsafe practices which would severely endanger the health and wellbeing of the child". Section 3(4) provides that the Minister for Children and Youth Affairs or the Minister for Communications, Climate Action and Environment may make regulations specifying "further circumstances in which material is to be regarded as harmful". Given the serious and criminal nature of the sanctions provided for in section 5 of the Bill, the language here would need to be clearer as to whether the proposed regulatory authority, in this case the Commission for Communications Regulation, would be required to interpret this part of the definition or whether this part of the definition would only be in effect once regulations had been prepared by either Minister.

I now move to the jurisdictional issues in the Bill. Section 7 of the Bill provides that a person may be tried in the State for the criminal offence set out in section 5. Section 7 also includes an extraterritorial provision for an Irish person or resident to be tried in an Irish court for acts that are an offence in any other state. These provisions would need to be carefully considered in that they seek to recognise in Irish law the laws which are or may be in place in other countries. This may be legally problematic and would need to be further explored.

Another issue raised in the Bill is the blocking of non-harmful material. Section 4(5) of the Bill provides that ComReg may require a service provider to take steps which would block users from accessing non-offending material. This issue arises because the "notice and take down" system proposed in the Bill would apply to services and websites as a whole, rather than the offending content itself. Under this proposal a website which hosts a large volume of legitimate material of a social or business nature may be made unavailable to Irish users on the basis that it hosts or has hosted offending content. In creating a new law in this area, the Oireachtas will have to balance the fundamental rights of all members of society, including the right to freedom of expression, which is protected by the Constitution and the European Court of Human Rights. It will be important to ensure that this section would not have any unintended consequences and end up restricting legitimate free speech.

Finally, if the Bill were to provide for users to make a complaint to the service provider in the first instance and, if they were not happy with the response of the service provider, to then make a complaint to the regulator, it could be a way to ensure that complaints about "harmful materials" are dealt with quickly and the offending content removed rather than entire services. This would also be in line with global best practice and the European Union liability framework for online platforms set out in the eCommerce directive.

Online safety is for all, but especially for our children. It is a priority of this Government. It is one we are pursuing through the Action Plan for Online Safety 2018-2019 and at a European level - for example, through the upcoming implementation of the audiovisual media services directive. As I said earlier, the Government will not oppose the passage of the Senator's Bill on Second Stage. Given the similarities between the intention of this Bill and that of the Digital Safety Commissioner Bill 2017, it might be useful for the Oireachtas Joint Committee on Communications, Climate Action and Environment to consider the issues identified in the Bill.