Catherine Martin (Dublin Rathdown, Green Party) | Oireachtas source

I thank the Senators for their valuable contributions. The constructive approach demonstrated during the debate reflects our shared determination to put in place an effective regulatory framework for online safety and audiovisual on-demand services. It builds on the intensive scrutiny the Joint Committee on Tourism, Culture, Arts, Sport and Media gave to the general scheme of the Bill last year. The diverse range of issues raised on the floor in the past few hours highlights both the scale of the Bill and the fact it will break new ground regulating sectors that have so far not been subject to oversight. As such, it represents an important step into a new frontier of lawmaking. I agree with Senator McGahon that this Bill is not the final word when it comes to legislation in respect of the online world but rather the first of many in the coming years as more legislation comes from Europe.

I reiterate the core contents and objectives of the Bill. It will ensure we are all exposed to far less harmful online content and that online services will be required by law to respond to, and robustly deal with, complaints when they are made. While the Bill will not and cannot address every issue of concern arising from the online world, it will create a robust and adaptable framework for accountability that can be amended and expanded over time to match the pace at which, as Senator McGahon mentioned, the tech world moves. This framework will be enforced by Coimisiún na Meán, which will include an online safety commissioner and have one of the most modern and robust suites of regulatory powers in Irish law. In providing a basis and starting point for the regulation of harmful online content, the establishment of Coimisiún na Meán is the most vital part of the Bill. In regard to broadcasters and streaming services, the Bill is fundamentally about the modernisation of the regulatory environment, enabling the commission to deal with the continuing changes in how we engage with and support our media in Ireland.

The Bill has a critical EU law dimension, given it will transpose the revised audiovisual media service directive, which has strongly informed the underpinnings of the coimisiún. As Senators will be aware, given the complexity of this legislation, we missed the transposition deadline for the directive, which is one reason I am especially keen to see the legislation progress through the Houses to enactment as soon as possible. Having said that, I am committed to comprehensive debate in this House on Committee and Report Stages, which will provide opportunities for us to discuss each section of the Bill and any amendments in further detail.

In the time that remains, I will endeavour to address the issues raised by various Senators. I thank Senators Martin, Cassells, McGahon, Warfield, Sherlock and Higgins for raising the individual complaints mechanism, a matter I have been considering closely for some time. The issue of providing for avenues of redress against individual pieces of content in the online world is complex. The approach in the Bill as published is to provide Coimisiún na Meán with the power, through the making of binding online safety codes, to require that regulated online services have effective complaints mechanism in place, with powers of audit and investigation in that respect. In addition, the Bill provides that the coimisiún shall establish a super-complaints scheme under which bodies such as NGOs or other expert groups may be nominated to notify the commission of matters relating to online safety, including in respect of the availability of harmful online content.

There are practical issues with providing the online safety commissioner with an almost ombudsman-like role in this regard, including the volume of content online, the fact it will regulate some services on an EU-wide basis, issues of due process and questions of how quickly decisions could reasonably be made. However, in light of the recommendations of the Oireachtas joint committee in the pre-legislative scrutiny report on the general scheme of the Bill, I am examining how these issues can be addressed. As I set out at the start of the debate, this is why I established an expert group to report to me within 90 days on these matters, with recommendations I may use as the basis for an amendment to introduce an individual complaints mechanism. The terms of reference of the expert group are very much focused on the practicalities of whether the individual complaints mechanism can work. Senator Malcolm Byrne mentioned the Australian e-safety commissioner, and this group will engage with that commissioner. I had hoped the Australian e-safety commissioner could be a member of the group but she was not available. Instead, she has committed to engaging with the expert group, which is important. As I have said on many occasions, if an individual complaints mechanism can be provided for in the Bill, I will ensure that is done. I met the expert advisory group and made clear at our first meeting that that was my intention.

Given the timeline set out in the terms of reference for the group, I expect to receive the report at the end of April and then consider whether and what amendments will be required in the context of Committee Stage in the Dáil. Taking account of the work of the expert groups under way, I do not want to pre-empt or prejudge any recommendations it may make, although I reiterate I am committed to a full and open discussion of any Government amendments made in the Dáil when the Bill, as amended, is returned to this House.

Senator Keogan raised the issue of the commission being funded from the licence fee. The Bill will enable this but not require it. It is carried over from the Broadcasting (Amendment) Bill 2019 and will allow the broadcasting levy to be reduced for broadcasters, including independent radio. To clarify, TG4 is not funded from the licence fee. Senators Keogan and Pauline O'Reilly spoke about how a rights-based approach has been taken in the Bill, which will underpin the work of Coimisiún na Meán. This means there will be a careful balance between the need to safeguard freedom of expression while taking into account that children and other members of the public need to be safeguarded. Their rights matter too.

Senators Martin, McGahon, Warfield, Kyne, O'Loughlin and Murphy raised the issue of disinformation. This is, of course, a significant and complex issue that requires a distinct and targeted response. The EU is reviewing the code of practice on disinformation in order to strengthen it and to link it to the forthcoming Digital Services Act, which will set out the standards for platforms in dealing with these issues. The code of practice, a European Commission imitative, has involved a range of online platforms, leading social networks, advertisers and advertising industry players to sign up to self-regulatory standards to fight disinformation.The commission intends that the code will evolve into a co-regulatory instrument under the Digital Services Act. In addition, the European Commission has established the European Digital Media Observatory, including a hub in Dublin City University, which has been tasked with monitoring the implementation of the code.

Senator Sherlock asked about specifying the role of the online safety commissioner. This is primarily a drafting issue. During the drafting process, legal advice was given that explicitly carving out specific roles within the multi-commissioner model could create difficulties if, for example, a commissioner was ill or if we wanted to appoint more than one online safety commissioner to an coimisiún. I am looking at how these issues can be overcome and will table an amendment to the Bill to address this matter. In any case, it is my intention, and that of the Government, to advertise for, and recruit, an online safety commissioner this year through an open, transparent and effective process managed by the Public Appointments Service. Work is under way in this regard.

Senator Kyne questioned why this would be a commission and not a board. This is the model for many regulators. For example, the Competition and Consumer Protection Commission has an executive chair and a number of commissioners, while ComReg and the Commission for Regulation of Utilities also have a multi-person commission model.

Senator Malcolm Byrne raised the issue of youth advisory groups. The Bill, I am glad, provides for advisory committees to coimisiún na meán to be established.

Senator O'Loughlin asked about the educational role of the media commission. The online safety commissioner will have a role in carrying out educational initiatives such as public information campaigns and I will work with existing educational bodies such as the Department of Education, webwise.ie and the National Council for Curriculum and Assessment on this. The commissioner will also be able to endorse third-party providers of online safety educational materials, which will help schools source appropriate and robust online safety materials for students.

Senators Cassells and Warfield raised the Future of Media Commission report. The programme for Government, Our Shared Future, provided for the establishment of the commission to consider the future of print, broadcast and online media. This was in recognition of the challenges facing the media sector, such as falling advertising revenue arising from the shift in consumption patterns due to evolving technology. The commission was tasked with making recommendations to the Taoiseach and myself to ensure that the future funding of public service broadcasting could be sustainable, give security of funding, ensure independent editorial oversight and deliver value for money to the public. The commission completed its work last autumn and submitted its report to the Taoiseach and me. As Senators can imagine, the report's recommendations are far-reaching and will inform media and broadcasting policy in the coming years. The commission's recommendations require careful and detailed consideration, particularly in light of a range of other complex and interrelated issues that will require decisions by the Government in the wider media and digital space. It is intended that the report be brought to Government for consideration shortly.

Senators Cassells, McGahon and Malcolm Byrne raised the issue of staffing. Some €5.5 million was secured as part of budget 2022 to establish the media commission on an administrative basis prior to the enactment of the Bill. This funding will help in the recruitment of key personnel. I previously stated that staffing of approximately 120 will be required during the start-up phase of the media commission. In the longer term, I estimate that the commission will require in excess of the 300 I mentioned at the beginning of the debate to fully operationalise its envisaged functions. I anticipate the need for additional staff, should the commission be assigned further functions in the future, including in respect of upcoming EU legislation. Of course these staff would need to have specific expertise. That goes without saying.

With regard to the data tracking issue raised by Senator Sherlock, that is a different matter from content regulation and lies with the Data Protection Commissioner. However, the Bill provides for co-operation between the online safety commissioner, coimisiún na meán and other regulators.

Senators Cassells, Warfield, Sherlock, Higgins, Currie and Pauline O'Reilly raised bans on the advertising of gambling, alcohol, foods high in fat, salt or sugar, or HFSS foods, and infant formula, particularly with regard to advertising to children. It is not a question of bravery. These are significant and cross-cutting matters that bring together a range of different policy areas under different Ministers. For example, the regulation of gambling advertising is set out in the recently published general scheme of the gambling regulation Bill, which comes under the Department of Justice. Infant formula, food and alcohol advertising are policy areas under the Departments of Agriculture, Food and the Marine and Health and are already subject to extensive regulation through, for example, the Public Health (Alcohol) Act 2018. While my officials are engaging with officials from other relevant Departments on these matters, it is clear that the functions and expertise for these policy areas lies more appropriately with those Departments. The online safety commissioner will have a role in regulating commercial advertising on certain online services through its online safety codes. Just as the BAI does currently, the commissioner will engage with health experts and others in developing these codes and will reflect public policy in this regard. This will also be the case in respect of media codes and rules that will apply to broadcasters and video on-demand services.

Senator Higgins raised section 30 of the Data Protection Act, which banned processing of children's data but was never commenced. This confirms that the issue has a strong data protection dimension. The regulators will collaborate. The Senator also raised the potential overreach. The powers have been scrutinised by our legal advisers but I am open to listening to concerns in that regard.

The Bill provides for measures to ensure the prominence and findability of public service content. I agree with Senator Warfield that this is an important matter as the volume of content and services expands. On the matter of data and access for researchers, this will be provided for in the Digital Services Act.

Senator Conway raised age verification for children online. There is a real issue with young children accessing online services that simply were not designed with them in mind. It is an issue of which I am particularly aware, both as a parent of young children and as chair of the National Advisory Council for Online Safety, which recently released a comprehensive report on children's online safety. We need to find workable solutions to the negative uses of online spaces. Anonymity raises a number of complex issues, including privacy and data protection matters that would need to be resolved before a solution could be effectively implemented. In this regard, an EU-funded pilot programme called euCONSENT is in development. That pilot aims to deliver a system for online age verification and parental consent that balances the rights of children with the need to protect them from online harm and age-inappropriate content. The outcome of this pilot will inform any approach taken to this issue at EU and national level. I will ask an coimisiún to look at this issue as a priority and to identify potential options and solutions to dealing with this complex issue. As I said previously, not everything can be dealt with in a single Bill but what matters now is that we have the framework in place.

Senators Cassells, Warfield, Malcolm Byrne and Kyne raised the issue of the content production levy. The revised AVMSD provides member states with the option of introducing a levy on television broadcasting and video on-demand services to fund audiovisual content production. To exercise this option, section 53 of the legislation provides that coimisiún na meán may introduce a content production levy and a content production scheme to fund the production of European works, including Irish works. The proceeds of any such levy would go into a content production scheme, which producers could apply for funding from. It would be similar to the sound and vision fund. It is intended that this levy would be introduced by the comisiún, subject to an assessment of its viability and whether it would have negative effects.

As I said earlier, there are risks as well as benefits here for the Irish audiovisual sector. In line with EU law, any levy introduced under the Bill must be imposed equally on all services targeting the Irish market, including Irish services and those based outside Ireland. That means that Irish media service providers such as RTÉ or Virgin Media Television would also be subject to this levy. In addition, both Irish services and those based in other member states of any size will then be eligible to apply for the content production fund established as a result of the levy. Any levy will only apply to income earned within this State. For example, for a provider such as Netflix, which earns 2% of its overall EU revenues in this State, the levy can only apply to that 2%. The aforementioned factors could significantly constrain the overall positive impact on the potential level of additional funding for Irish content.

I was asked if I would set out the exact percentages and the process involved with the levy in the legislation. That approach would be inflexible and an coimisiún, as an independent body, should have the power to design and enforce the levy and change it over time. I expect that an examination of the content levy will be among the priorities of an coimisiún upon its establishment.

I am almost out of time. I apologise to those who raised issues I did not address.I look forward to a constructive and detailed debate. As I said, I am committed to that debate. The interest Senators have shown, their attendance and their varied contributions show how important this legislation is to many Senators. I look forward to debating it further.