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

I will make a general point first. I empathise with Senator Ruane on the groupings, which I also received quite late this afternoon. That is because of the interest in this groundbreaking legislation and how there are more than 200 amendments. If it is of any help, I will say that I was under the same stress as the Senator this afternoon when preparing for this debate because I was also waiting for the groupings. We were in it together.

I will first speak to the Bill in general terms. The main aim of the legislation is to jump-start the modernisation of Ireland's approach to the regulation of content in traditional editorial media as well as in the landscape of newer online services fuelled by user-generated content. This is driven by the changes in the way we consume media and the growth of the online world.

In terms of online safety, the Bill will ensure that we are all exposed to far less harmful online content and will require by law that online services respond to and robustly deal with complaints. While the Bill does not, and cannot, address every issue of concern arising from the online world, it creates a robust and adaptable framework for accountability that can be amended and expanded over time. This framework will be enforced by coimisiún na meán, which will include the online safety commissioner and have one of the most modern and robust suites of regulatory power in Irish law. It will be the starting point for the regulation of harmful online content. The establishment of coimisiún na meán is the most vital part of the Bill.

Regarding broadcasters and streaming services, the Bill is fundamentally about modernising the regulatory environment and enabling an coimisiún to deal with the continuing changes in how we engage with and support our media. It has critical EU law dimensions, as it transposes the revised audiovisual and media services directive, AVMSD, which strongly informs an coimisiún's underpinnings. As Senators will be aware, given the complexity of this legislation, we have missed the deadline's transposition deadline. That is one of the reasons I am keen to see this Bill progress through the Houses to enactment as soon as possible.

Reference was made to the EU's Digital Services Act. That Act and this Bill are complementary. One of the Bill's key drivers is the implementation of the revised AVMSD into law. That implementation in respect of online services, specifically video sharing platforms, is provided for under the Bill's regulatory framework on online safety. In this regard, the directive is explicitly recognised by the Digital Services Act as a distinct and complementary law to the proposed regulation. Regarding the regulation of other online services, the Bill provides for a regulatory framework for online safety that is designed to be adaptable and responsive to changes in Irish and EU law.

Political agreement on the Digital Services Act was reached on 22 April. While the final text of the agreed legislation is not yet available, it is clear that legislation in addition to the Bill before us will be necessary to ensure appropriate alignment of our regulatory systems – coimisiún na meán and other regulators – with the proposed regulation. Ireland and other member states will have 15 months from when the regulation comes into effect – that will likely happen this summer – to ensure that its measures are provided for and supported by Irish law where necessary. In this regard, the Government has decided that coimisiún na meán, which is to be established by this Bill, will act as the primary regulator and digital services co-ordinator under the Digital Services Act. The Government made this decision in light of the clear synergies between the objectives and approaches of coimisiún na meán and the Act, including taking a systemic approach to dealing with online safety and platform regulation and similar resourcing needs and expertise in implementation and enforcement.

It is important to note that the Digital Services Act is not sector-specific legislation, but a horizontal instrument that aims to set baseline regulatory standards across a wide range of issues, including legal liability, consumer protection in legal products, copyright, certain law enforcement matters etc. As such, it will overlap with a number of laws and activities of a number of regulatory bodies. These matters will need to be teased out during the implementation period. A programme of work in this regard already is under way between my officials and the officials of the Department of Enterprise, Trade and Employment.

Regarding the amendments, I thank the Senators for addressing the Bill's provisions on the prohibition of broadcasting or making available on the catalogues of video-on-demand services advertising that is directed towards a political end, has any relation to an industrial dispute or addresses the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation. These provisions have been carried over from existing provisions set out in sections 41(3) and 41(4) of the Broadcasting Act 2009, which in turn carried over similar provisions from the Radio and Television Act 1988. This Bill extends those provisions to video-on-demand services.

I thank Senators Ruane and Higgins for tabling amendments Nos. 2, 101 and 106. These amendments propose to replace the term "political end" with "political purposes" and set out a definition of "political purposes". I recognise the work that Senator Ruane has done on this matter, including by introducing the Electoral (Civil Society Freedom) (Amendment) Bill 2019. The effect of amendments Nos. 2, 101 and 106 would be to prohibit the broadcasting or making available of an advertisement towards political purposes rather than the current wording of an advertisement "towards a political end".

The phrase "political end" was queried.That term, "an advertisement towards a political end", has been in defined in the 1998 High Court judgment, Colgan v. Independent Radio and Television Commission. This case involved an appeal against the decision of the Independent Radio and Television Commission, IRTC, to prohibit broadcasters from broadcasting an anti-abortion advertisement prepared by the organisation Youth Defence. The definition used in Colgan v. IRTC is currently used by the Broadcasting Authority of Ireland. I note that the definition of "political purposes" stems from the centre’s proposal to amend section 22(2)(a) of the Electoral Act 1997.

Given that the Electoral Reform Bill 2022, which will regulate online political advertisements during electoral periods, uses the term "political purposes" to define such advertisements, I will need to consult with my colleagues and the Minister of State with responsibility for heritage and electoral reform. This substantive impact of the proposed impacts in opening up political advertisement on broadcasting or video on-demand services would need to be carefully considered, particularly as regard to any unintended effects it may have in terms of potentially allowing extremists to advertise.

On amendments Nos. 2, 101 and 106, I would like to have the opportunity to consider them further and consult with my colleague, the Minister of State with responsibility for heritage and electoral reform, with a view to discussing the matter again on Report Stage, so the Senators may wish to raise the amendments then.

Amendment No. 100, as proposed by Senators Malcolm Byrne and Cassells, would have the effect of deleting section 46(2) of the Broadcasting Act, as amended by the Bill, which would appear to have the effect of allowing all political advertising or religious advertisements to be broadcast or shown on a video on-demand service. I would have concerns that this may have the inadvertent effect of allowing political parties to advertise outside of election periods on television and certain video on-demand services. As we have seen in other jurisdictions, allowing political parties to advertise freely can actually have the effect of handing the airwaves over to the political parties that have the most resources. At its most dangerous, this would have the potential to undermine the democratic process.

On lifting the ban on industrial disputes, the employer may have a higher level of resources to influence public opinion. Therefore, I would be inclined to agree with Senator Sherlock on the risks that she outlined. The amendment as proposed would remove the prohibition of broadcasting political advertisements, but not put the rules in place. Therefore, it would not be a level playing pitch. There would be rules for online advertising under the Electoral Reform Bill in the election period, but not for broadcasting. I would be afraid we are actually moving beyond the core function of the commission. Therefore, I cannot accept amendment No. 100.