Alice-Mary Higgins (Independent) | Oireachtas source

I welcome the Minister to the House. She can hear the interest in this Bill as it is discussed. For a long time there was a little bit of complacency among some of the major players in the tech industry around the idea that they would always be slightly ahead of Government and regulation and that this was an area of such complexity. I remember being in a situation once when I was told that it is maths and that was used to say these areas are not in the scope of appropriate regulation. We have seen that they are in the scope of appropriate regulation and that they are areas of responsibility for us as national and European legislators.

The online space does not exist separately; it exists in real spaces. From the issues of data centres and where they are located, through to where and how data is processed, it is in the real world and in real jurisdictions and it is subject to real regulation. We have instruments and the skills to do that regulation. We have seen that in the general data protection regulation, GDPR. We have heard about innovation and the regulatory innovation that Europe showed in GDPR was fundamental and incredibly important. There is something we got right about that which I hope we can follow through with in how we treat the likes of the audiovisual and media services directive, the Online Safety and Media Regulation Bill 2022, the digital services and the algorithmic legislation when it comes through. We took an approach with GDPR that avoided the twin dangers of a laissez-faireapproach of market self-regulation and an authoritarian approach where the state owned all the data. It is neither a matter of commercial nor state ownership. Instead we took up an approach which was rights-based. It was strong, regulatory, ambitious and also fundamentally rights-based. We can do that here again and we need to make sure we do so, while improving the one place that GDPR has fallen down and where Ireland has unfortunately fallen down on GDPR, namely in implementation and enforcement.

In that context I will point to some of my recommendations and concerns, which will seem to go to either direction on this. On the one side we need to be more ambitious in making sure that individuals are able to assert their data rights. There must be an individual complaints mechanism and that will be core to this legislation, to its effectiveness and meaningfulness and to whether it sits legitimately side-by-side in a complementary way with what we did before. There has to be an individual mechanism and in that I would suggest that we probably should not be looking at this on Committee Stage in the Seanad until we have that expert online safety group report back. It was given 90 days from the end of January to report and its brief is to consider: "whether it is practicable to include an individual complaints mechanism in the Bill and, if so, how this may be done".There has to be an individual complaints mechanism. That was very clear from the committee scrutiny. It is fundamental and I hope the discussion we have on Committee Stage is one on how there has to be such a mechanism. That is important.

There are areas within regulations and codes where we can move ahead and give strong legislative protection that would be better, such as in the area of infant formula. If one knows an issue is a concern, it is always better to have it in the primary legislation. That is the strongest place we can have protection around areas such as infant formula, junk food, alcohol and gambling. These are areas where we can now put proper protections in place in the primary legislation.

In the special space, we also need to have care that harmful practices or what gets defined as harmful is not entirely solely left to the commission and that it would come back to the Oireachtas. What we do not want is that we have things we know are harmful and will not necessarily get captured or might be an overreach that get defined as harmful down the line and that creates inadvertent consequences or, potentially, suppression. The legislation should be as clear as possible.

In that regard, a crucial issue is profiling and microtargeting of children. The Minister will be aware this is recommendation 26 from the Oireachtas committee scrutiny which was very clear on profiling. This issue is on its way. We know it will be part of the Digital Services Act. The European Parliament has voted to ban targeted advertising and profiling under the Act.

I would like if we could engage between now and Committee Stage. This is already in Irish law because Senator Ruane and I, in section 30 of the Data Protection Act 2018, won an amendment which is in the law but the section was never commenced. It explicitly banned, back in 2018, a company or corporate body processing personal data of children "for the purposes of direct marketing ... or micro-targeting". It was not perfectly worded.

We were told it would be refined. However, it was not commenced and has not been refined. I suggest we have a tool there we might need to revisit. The precedent has already been set by the Oireachtas ahead of EU law. This House determined it believed this should be a key concern and should be addressed, back in 2018. I am sure we could do it better than it was worded in 2018, but it is important that mandate is a historical one.

I have concerns in terms of overreach on some of the issues, such as looking at how far warrants go and the kind of information. Authorised officer powers need to be very carefully scrutinised, especially when it comes to interpersonal communication and cloud storage, for example. There are a few gaps, which we will come to on Committee Stage. If information is taken from somebody, he or she should be entitled to have a copy of what is taken. I am a little concerned that we need some more checks and balances around the authorised officer powers with regard to that.

One of the very exciting things about the audiovisual and media services directive is the exception culturelle. Senator McGahon spoke about the beginning being the US Communications Decency Act 1996. Actually, 1993 and the exception culturelleare the fundamental origins of the AVMS directive. The exception culturelle was the idea that culture is not solely commercial but that there is a right to participation in culture and diverse representation.

Many of the measures in the Bill around the levies and supporting public service broadcasting are not simply about market share for Europe. They are around the idea of the right to cultural expression and participation for all citizens, including those with a disability, those for whom Irish Sign Language may be their main language and regional and rural communities. I hope that we can be very ambitious in that section and reflect the spirit of the exception culturellefrom 1993.