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

Dlí ceannródaíoch is ea é an Bille um Rialáil Sabháilteachta ar Líne agus na Meán, 2022 agus tá áthas orm é a chur faoi bhráid an Tí.

The main aim of this legislation is to jump-start modernisation of Ireland's approach to the regulation of content, both for traditional editorial media and the landscape of newer online services fuelled by user-generated content.This is driven by changes in the way we consume media and the growth of the online world. Streaming services are now a key feature of everyday life. They are on our phones, laptops and televisions. However, regulation of these editorially controlled services has not kept pace with the regulation of broadcasting services. This Bill will change that and ensure that streaming services are subject to up-to-date rules.

While the fact the Internet is a key part of our lives has become increasingly apparent, the Covid-19 pandemic has brought sharp focus to this reality. From working from home to schooling from home, the Internet has enabled us to weather this pandemic in ways that have surprised us all. While the Internet has had a broadly positive impact, there are risks, however, especially to children. Some of these risks are online extensions of existing problems, such as bullying. Others represent new challenges in our digital age, such as image-based abuse. While we have updated our criminal law for the online age, there has not yet been a way to hold online services to account. These are key matters this Bill will begin to tackle for the first time. As such, the Bill's scope is ambitious and includes updates to the regulation of broadcasting services, including radio, television and streaming services. It also provides for the creation of a new regulatory framework for online safety to tackle the availability of the most serious forms of harmful online content. This will be done by providing for risk-based regulation of services that facilitate access to user-generated content. In doing this, the Bill also provides for the implementation of the revised audiovisual media services directive into Irish law.

The foundations for achieving this ambition are those elements of the Bill that provide for the creation of a new regulatory body, coimisiún na meán, the media commission, which will implement and enforce these new and updated rules. In order to do so, an coimisiún will have a robust and modern suite of regulatory functions and powers and, in line with EU law and best practice, will be wholly independent in its exercise of those functions and powers. Regulatory independence is key to effective regulation, especially for content regulation, where fundamental rights are so important. In some parts of Europe, this independence is being eroded. It is vital that Ireland leads on this issue.

The powers of an coimisiún include the power to fund its operations by levying the services it regulates; to create legally binding regulatory codes; to gather information and appoint authorised officers to conduct investigations; and to seek the imposition of sanctions for failures of compliance, including financial sanctions of up to €20 million or 10% of turnover, whichever is higher. In the most serious cases, an coimisiún may seek criminal prosecution of senior executives of non-compliant services and seek court orders to block access to a service in Ireland. In respect of broadcasters, an coimisiún will retain the power to revoke broadcasting contracts for serious breaches.

An coimisiún will also take over the current functions of the Broadcasting Authority of Ireland, BAI. The staff of the BAI, approximately 40 people, will transfer to an coimisiún. I envisage that an coimisiún will need to scale quickly up to a staffing level of at least 160 and in the longer term may require staffing of up to 300. The Government has approved the establishment of an coimisiún on an administrative basis, including recruitment of key personnel, prior to the enactment of this Bill. Work on this is ongoing between my officials, the Public Appointments Service and the Department of Public Expenditure and Reform.

While the functions of an coimisiún primarily relate to the regulation of services, it will also have wider roles relating to the protection of children, research, education, media literacy, and journalistic and creative supports. In carrying out these roles, an coimisiún will support and promote an open, trusted and pluralistic media and online environment. There is a widespread problem with the availability of harmful and criminal content on widely used online services. It is clear that self-regulation in online safety is not working and that oversight and accountability is required. As regards online safety, the Bill requires an coimisiún to regulate video-sharing platform services in line with the directive. In addition, the Bill provides an coimisiún with the power to designate further online services for regulation from a pool of relevant online services.In this context, an online service is relevant if it facilitates access to user-generated content. This covers a very wide range of services, including social media services, many gaming services and online messaging and storage services. In order to designate an online service, an coimisiún is required to conduct a risk assessment of the service, including regarding the prevalence of harmful online content available through the service and the nature and scale of the service. This approach will enable an coimisiún to direct its energies to the areas where they are most needed.

Once an online service is designated, an coimisiún can require it to comply with binding online safety codes. These codes can require online services to adapt their systems and processes in three key areas which are rules for content moderation and complaints handling; rules regarding the design of the service and how and why it displays certain content to users; and rules about advertising.

With regard to video-sharing platform services, an coimisiún is required to apply the provisions of the directive to those services through these codes. The main aim of the online safety codes is to tackle and progressively reduce the availability of harmful online content on designated online services. In this regard, the Bill clearly defines harmful online content. Online content is harmful where it either relates to one of 40 criminal offences listed in the Bill, or is cyberbullying, the promotion or encouragement of eating disorders, self-harm or suicide, or makes available knowledge of methods of self-harm or suicide.

The schedule of criminal offences includes the offences under Coco's Law, or the Harassment, Harmful Communications and Related Offences Act 2020, with regard to image-based abuse, abusive communications and harassment. For harmful online content which is not criminal in nature, a risk test must be met for it to be considered harmful. This includes whether the online content gives rise to any risk to a person's life or a reasonably-foreseeable risk to a person's mental or physical health. The Bill also provides for a mechanism for future categories of harmful online content, both criminal and non-criminal, to be added to this list, subject to Oireachtas oversight.

The Bill also requires an coimisiún to create a super-complaints scheme, under which nominated bodies such as expert NGOs can formally notify an coimisiún of a range of online safety issues. In addition, the Bill empowers an coimisiún to audit the handling of complaints by designated online services.

In summary, the online safety elements of this Bill will ensure that an individual person will be 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. In this regard, an coimisiún will have significant powers of compliance and sanction to hold these services to account.

As the Members will be aware, I have established an expert group to examine providing for an individual complaints mechanism in the Bill. The role of the expert group is to examine whether it is practicable to do this and, if so, how it may be done. The group has 90 days from the date of its first meeting, which was on 31 January 2022, to examine this matter and to report back to me with its recommendations. Following this, I will then consider tabling an amendment as the Bill passes through the Oireachtas. If an individual complaints mechanism can be provided for, I would like to ensure that it is. In this regard, any proposals that I bring forward must be workable and legally robust.

In terms of the regulation of broadcasting and streaming services, this will for the most part be done through media codes and rules. Media codes are mostly about the content of programming, including rules for programme standards and advertising. Media rules, on the other hand, are mostly about the presentation and structure of the service, including rules regarding the time given to advertising, accessibility requirements for persons with disabilities and quotas for European works. In order to ensure the uninterrupted regulation of broadcasters, provision is made for the existing broadcasting codes and rules to be carried over and become media codes and rules.

The Bill also provides for the mandatory registration of streaming services to ensure that, in line with the directive, all streaming services established in Ireland are subject to appropriate regulation. Broadcasters will remain regulated on a contractual basis. The Bill also provides for the transposition of an optional provision in the directive to empower an coimisiún to levy broadcasters and streaming services, including those established elsewhere in the EU, in respect of any revenues that they may make in Ireland in order to fund the production of European works, including Irish-produced works.Provision is made so that the money collected could be dispersed by an coimisiún through a content production scheme.

The Bill does not set the amounts of any such levy as this would be inflexible but enables an coimisiún to design and implement a levy having regard to relevant economic factors. There are potential risks and benefits to a levy, including for consumers, and it is intended that an coimisiún would thoroughly examine these matters before these provisions are commenced.

Turning to a more detailed overview of the provisions of the Bill, it is first important to note that it amends the Broadcasting Act 2009.

Part 1 addresses preliminary and general matters.

Part 2 amends the 2009 Act to insert and amend a number of definitions, including key definitions such as the definition of a "relevant online service". Furthermore, sections 4 and 5 under this part provide for the relevant jurisdiction rules from the directive.

Part 3 amends Part 2 of the 2009 Act to provide for the establishment of coimisiún na meán. Key provisions under this part include provision for the independence of an coimisiún, the appointment of commissioners, including a chairperson, an coimisiún to impose levies on regulated services - not including community broadcasters - to fund its operations, an coimisiún to report on its operations and the accountability of the chairperson to the Committee of Public Accounts and the chairperson and other commissioners to relevant Oireachtas committees.

Part 3 also provides for the general powers and functions of an coimisiún. It is important to note that this provision does not contain every power and function to be exercised by an coimisiún but does set out, at a high-level, certain powers and functions that an coimisiún shall exercise and matters that it shall take into account when exercising its powers. This includes upholding Ireland's democratic values, protecting the interests of the public, in particular children, ensuring the diverse needs of the people of this island are served by our media, stimulating content production, particularly in respect of the Irish language and climate matters and sustaining independent and impartial journalism. In particular, an coimisiún is provided with a strong education and research role.

Part 4 provides for matters related to the registration of providers of streaming services through the insertion of a new Part 3A into the 2009 Act.

Part 5 concerns the duties, codes and rules applicable to radio and television broadcasters and streaming services and provides for these through the insertion of a new part 3B into the 2009 Act. Chapter 2 of this new Part concerns duties, including in relation to privacy, news and current affairs and advertising. Chapters 3 and 5 of this new part concern media codes and rules. Chapter 3 of this Part also provides that existing broadcasting codes and rules made by the Broadcasting Authority of Ireland, BAI, such as access rules, will continue in force following the enactment of the Bill.

Part 6 amends Part 4 of the 2009 Act and primarily concerns changes to take into account the establishment of an coimisiún and the statutory regulation of streaming services in respect of redress mechanisms.

Part 9 amends Part 7 of the 2009 Act to take into account the establishment of an coimisiún in regard to public service broadcasting, allow for the part-funding of the broadcasting functions of an coimisiún from television licence receipts, provide for changes to the calculation of total advertising time for broadcasters and insert a new chapter 7 regarding the availability and prominence of public service programmes and services.

Part 11 inserts a new Part 8A into the 2009 Act concerning online safety regulation. Chapter 1 of this new part concerns the definitions of harmful online content and age-inappropriate online content, which I have already detailed. Chapter 2 concerns the process for designating relevant online services for regulation. Chapter 3 concerns the making of online safety codes, the matters which they can address and matters which need to be taken into account when the codes are being drawn up, including the protection of children, fundamental rights, the nature and scale of online services and the impact of automated decision-making or algorithms. Chapter 4 concerns the making of online safety guidance materials and advisory notices. Chapter 5 concerns an obligation on an coimisiún to establish a super-complaints scheme for nominated bodies, and a number of other matters. Part 11 also inserts a new Schedule 3 into the 2009 Act containing the list of offence specific categories of harmful online content.

Part 12 inserts a new Part 8B into the 2009 Act concerning investigations and sanctions. Chapter 2 and of this new Part provides an coimisiún with the power to appoint authorised officers and concerns the procedure for investigations by those officers and decisions by an coimisiún following investigations. Chapter 4 concerns the imposition of administrative financial sanctions. Chapter 5 of this new Part provides an coimisiún with the power to issue notices to end a contravention and provides for secondary criminal liability for senior executives linked to these. Chapter 6 provides an coimisiún with the power to seek court orders to block access to non-compliant online services in Ireland. Chapter 7 provides an coimisiún with the power to issue content limitation notices in respect of individual items of harmful online content. Chapter 8 provides for three categories of summary offences under the Bill and provides an coimisiún with the power to prosecute these offences. This part also inserts a new Schedule 4 into the 2009 Act concerning oral hearings.

Parts 7, 8, 10, 13, 15 and 17 amend various Parts of the 2009 Act and other relevant Acts to take into account the dissolution of the BAI and the establishment of an coimisiún.

Part 14 inserts a new Part 10A in the 2009 Act concerning European works. This Part provides for the requirements of the directive for European works quotas and prominence and provides an coimisiún with the power to introduce a European works levy and European works scheme.

Lastly, Part 16 provides for transitional matters.

As can be seen, given its subject matter, this Bill is necessarily complex and far-reaching. It deals with a wide range of important issues from modernising media regulation to introducing, for the first time, online safety regulation to tackle the availability of serious forms of harmful online content.

I would like to conclude by acknowledging the work undertaken by the members of the Joint Committee on Tourism, Culture, Arts, Sport and Media on the general scheme of the Bill as part of the pre-legislative scrutiny process. The report of the committee demonstrated the importance of pre-legislative scrutiny to the democratic process. I was pleased to address a significant number of the recommendations made by the joint committee through the Bill. As we now progress through the next phase of parliamentary scrutiny of the Bill, I look forward to the Senators' contributions.