Alice-Mary Higgins (Independent) | Oireachtas source

Amendment No. 82 was co-sponsored by my colleague, Senator Black. The Minister would be aware of the excellent and extensive work Senator Black did in the past on the legislation on alcohol control and that area. We had very lengthy discussions on advertising and self-regulation and on the very significant concerns in that area around the inadequacies of self-regulatory mechanisms.

It is one example, but there is a very significant concern that I would urge the Minister to weigh up in relation to section 34. There seems to be a kind of muddying of the ground. Under the media services codes, which we discussed earlier, it needs to be clear that the commission would have the power to make regulations, restrictions or, potentially, prohibitions, in respect of commercial communications. The one thing I would add to this amendment relates to the fact we have agreed we need to have a clarity that commercial communications and advertising should be covered by that issue so, again, the media services codes would allow for codes in respect of advertising in its fullest sense, not in just its narrow sense of commercial communications.

We have these media services codes that we are putting in place, and yet we have this kind of separate thing which is a self-regulatory system. We are in a situation where we may have some kind of self-regulatory systems that are perceived as being given the imprimatur of the commission and are operating separately from, and kind of in parallel with, the media services codes, which are the proper and appropriate regulatory mechanisms and signals that the commission may make. The commission can set out media services codes, and the media services codes or other policy coming from the commission may be drawn upon by those putting in self-regulatory systems. However, the framing of this section, even framed in terms of co-operation with and giving assistance to a person or group of persons, creates a kind of weird dynamic between sectors that need to be regulated and the regulator. It is one thing, as we said, for us to set standards and to look at things in terms of how they meet those standards, but the idea of the standards being prepared by groups of persons outside the commission and the commission assisting them could pose problems. We could have a situation where we are being told that the groups' standards that industry may put together for itself can be said to have been prepared with the assistance of the commission and somehow be in line with the media services codes or with anything else. It seems it is a very muddying piece of the relationship.

If we think about the Data Protection Commissioner and the importance of that role and the kind of a challenge Ireland has had at EU level around the need for real, absolute clarity of independence and of a separation of that role, again, anything that muddies the clarity in relation to the commission and its regulatory function is potentially dangerous and could undermine its credibility. I am very concerned about this area in terms of the commission and its work.

That leaves aside the separate concern, which I know Senator Black and others have, which is the general principle of self-regulatory solutions to these issues. We know they are a very significant concern because there are very significant interests in play. In a way, the fact that in Europe we have these directives coming down, such as the digital services directive and the audiovisual directive, with the algorithms, is because there has been a decision that we need to regulate. In the United States and other countries, there has been a self-regulatory approach for a very long time. I refer to anything that gives us a self-regulatory approach, and particularly in relation to commercial communications and interests.

I have been speaking on, for example, the marketing mechanisms of the breast milk substitute industry – the formula industry – over past week or two. We have seen some very concerning practices. There is a World Health Organization code that should be, but is not being, fully applied. That is a voluntary code that many companies have signed up to, and yet we see practices that breach it all the time. That is why we look for actual law and actual regulation, such as the media service codes.