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

I thank the Senator for the amendments and acknowledge her expertise in the area of data protection.

Section 33 of the Broadcasting Act, as inserted by the Bill, is intended to specify the circumstances under which, and the bodies to which, the commission may disclose personal data. I believe that the intention of amendment No. 75 has been captured in section 33(2) of the Broadcasting Act, as inserted by the Bill. Throughout section 33(2) it is specified that the commission shall only disclose personal data where it considers that it is necessary and proportionate for the purposes set out in its various paragraphs so, therefore, I do not accept the amendment.

I do not propose to accept amendments Nos. 76 to 78, inclusive. Amendments No. 76 and 78 have the collective effect of preventing the commission from disclosing personal data to a broadcaster or a video on-demand service in respect of a complaint made against those services. I believe that would impact the functioning of the complaints mechanism set out in section 48 of the Broadcasting Act 2009, as inserted by section 11 of the Bill, which enables people to complain to the commission regarding a failure by services to comply with media service rules and codes.

The complaints system is an important mechanism that has been operated by the Broadcasting Authority of Ireland and is applicable to broadcasters under the extent of the Broadcasting Act 2009. It has been extended to video on-demand services by the Bill. It is underpinned by the requirement that a broadcaster or a provider of a video on-demand service prepares and implements a code of practice for the handling of complaints, which is a requirement of section 47 of the Broadcasting Act 2009, as amended by section 10 of the Bill.

Section 48(3) of the Broadcasting Act 2009, as amended by section 11 of the Bill, provides that an coimisiún may refer a complaint to the broadcaster or provider of a video on-demand service in the first instance. This is a continuation of the existing provision applying to the complaints system operated by the BAI. It ensures that the broadcaster or video on-demand service should attempt to address a complaint, in the first instance, in accordance with its codes of practice for the handling of complaints.

It is often not immediately clear to people unfamiliar with the complaints system operated by the BAI to whom a complaint should first be made and about what matters. This provision also ensures that an coimisiún, when it is established and comes to expand the BAI system to video on-demand services, can transfer a complaint to a broadcaster or provider of a video on-demand service where those service providers are best placed to respond. If the complaint is not dealt with to the complainant's satisfaction then it can then be dealt with by an coimisiún.

Amendment No. 77 would prevent the prescription of further bodies to whom the commission could disclose personal data. I believe that it is important that the Bill is future-proofed such that, and only after careful consideration in accordance with section 33(4), a Minister may prescribe further bodies as necessary.

Amendment No. 79 would require an coimisiún to make best efforts to contact and seek the consent of a complainant prior to transferring a complaint to a broadcaster or a provider of a video on-demand service. I do not propose to accept this amendment for a number of reasons. The first reason is that the legal basis for data processing, relied upon by this section, is not consent but that the "processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller". This has been set down in the Article 6(e) of the general data protection regulation, which obliges member states when using this legal basis to set down the purpose of that processing in national law.This is what the section does with regard to the processing of personal data for the purpose of transferring complaints.

The public policy rationale for using the public interest legal basis rather than the legal basis of consent was that requiring complainants to resubmit their complaints to the appropriate body is burdensome and especially onerous for vulnerable complainants. In this regard, I am conscious of the work of the expert group on an individual complaints mechanism. This section may need to be relied upon to transfer online safety complaints between public bodies if the group recommends to me, and I accept, the introduction of an individual complaints mechanism in the Bill. If there is concern about a lack of communication with complainants I think amendment No. 80 may address it. I will come back to this shortly. Accordingly, I do not propose to accept amendment No. 79.

Amendment No. 81, which would require a data protection impact assessment to be undertaken prior to any such prescription, might be an important safeguard. For this reason I propose to return to further consider this on Report Stage if the Senator agrees. In a similar vein, amendment No. 80 could provide another important further safeguard in legislation. It provides that where disclosure of personal data is made by the commission to be broadcast on video-on-demand service or to a body prescribed by the Minister, all reasonable efforts shall be taken to inform the complainant of this disclosure. While I propose to reject the amendment now, I will consider it further and return to the matter on Report Stage.