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

I thank the Senators for their amendment. We agree that it is important that the Bill contains robust and proportionate powers of investigation and enforcement sufficient to ensure compliance with the online safety codes issued by an coimisiún. As the Senators will be aware, the Bill as initiated already provides for significant administrative financial sanctions in respect of a contravention under the Bill and for the liability of a director or manager of a designated online service for a specified criminal offence in situations where a contravention continues following the decision of an coimisiún. Section 139Y of the Broadcasting Act 2009, as amended by section 46 of the Bill, defines failure to comply with an online safety code as a contravention under the Act.

It is important to note that a contravention is not in itself a criminal offence under the Act. The Bill sets out a clear process for investigation of a contravention which begins with the appointment of an authorised officer to carry out an investigation and make a report to an coimisiún. The Bill provides significant powers to authorised officers, including powers of search and seizure. Following their investigation of a contravention, an authorised officer must prepare a report to present to an coimisiún for its decision. On receipt of the report, an coimisiún shall, on the balance of probabilities, decide whether or not a contravention has been committed by a provider of a designated online service and whether to impose administrative financial sanction. It may impose administrative financial sanctions of up to €20 million, or 10% of the turnover. Given the scale of some of the designated online services which will be regulated by an coimisiún, a sanction of 10% of turnover may run into the hundreds of millions of euro.

If a provider of a designated online service continues to commit a contravention following a decision of an coimisiún, section 139ZT of the Broadcasting Act 2009, as amended by section 46 of the Bill, provides that an coimisiún may issue a notice requiring the provider to put an end to the contravention. If the provider fails to comply with such a notice, a director, manager, secretary or other officer of the provider can be held liable for the criminal offence of failing to comply with a notice by coimisiún na meán to put an end to a contravention. The criminal offence is a category 1 offence under the Bill, which is set out in section 139ZZ of the Act, as amended, as an offence for which a person is liable (a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or (b) on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding ten years, or both.

The provision is tightly drawn and limited to circumstances in which the facts underlying the offence and indeed secondary liability in respect of it are provable in practical terms. This is very important and the legitimacy of the regulatory framework and the legislation will hinge in many respects on its operability. I want to emphasise that the provision for secondary criminal liability in the Bill was arrived at following extensive consultation with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences.

The amendment brought forward by the Senators is intended to set out a new offence which would apply when a designated online service has failed to comply with an online safety code in the first instance and for associated criminal liability. I absolutely understand the point the Senators are making regarding the dissuasive effects of applying criminal sanctions in the first instance of a failure to comply with an online safety code, rather than following a failure to comply with a notice issued by an coimisiún. However, I am advised that the dissuasion sought could only occur if the offence was provable in practical terms to the legal standard of "beyond reasonable doubt". This is achievable in the circumstances in which the Bill provides for secondary criminal liability but I am advised that there are doubts as to whether that would be the case in the circumstances described by the Senators.

In addition, the intention of the Senators here would provide a legislative choice to an coimisiún where it has determined a contravention has occurred to either pursue the imposition of an administrative financial sanction, or prosecute or pursue the prosecution of a provider of a designated online service for an offence tied to that contravention and potentially a secondary prosecution against a senior manager. Where such a legislative choice exists, the question arises as to how an coimisiún would choose between these courses of action, particularly as they have different legal standards of proof attached to them. This creates a decision point which would be subject to judicial review and in respect of which it would be difficult for an coimisiún to defend its choosing either course of action. A mischievous actor could easily make an argument that an coimisiún is only pursuing an administrative financial sanction because it does not have sufficient proof to pursue a criminal case and that an coimisiún is denying the provider due process on that basis. I have no intention of introducing such an opportunity into this Bill. For these reasons, I cannot accept the amendment.