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

As the Senator said, this is ground-breaking legislation. It represents the first steps to regulate user-generated online content. In establishing a whole new regulatory framework and regulator to enforce it, Coimisiún na Meán, the Bill lays a foundation that we can build on. There will be changes to the regulatory framework, driven by initiatives taken at EU level, for example, not least through the recently agreed EU digital services Act, which does not take the approach proposed by the Senator. It is important that the regulatory framework that we are establishing as a foundation stone is effective and that any provisions we include are applicable in practice by Coimisiún na Meán. It is important in that context that consideration is given to the investigation and enforcement regime set out in the Bill so that it can be done in practice.

I meant to refer to the comparisons between the provisions for secondary criminal liability in this Bill and other legislation, such as the Safety, Health and Welfare at Work Act 2005, as amended. The offences set out in that Act for secondary criminal liability attach focus to failures by persons to comply with the provisions of that Act, including failures to discharge clearly identified duties or non-compliance with requirements to prepare plans. Such provisions would have more in common with the existing provision in the Bill which attaches criminal liability to the failure to comply with a notice to end a contravention issued by the coimisiún, given that the facts of compliance or non-compliance would be relatively clear, which is an important consideration when the matter must be proven beyond reasonable doubt. As I said earlier, my advice is that the dissuasion the Senator seeks could only occur if the offence was provable, in practical terms, to the legal standard of beyond a reasonable doubt. This is achievable in circumstances in which the Bill provides for secondary criminal liability. I am advised that there are doubts as to whether that would be the case in the circumstances the Senator describes.

It is vital that those who contravene the regulatory provisions can be sanctioned appropriately and effectively, up to and including criminal sanctions. We agree on that. The approach we have taken followed extensive engagement with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences. I have outlined the sanctions of €20 million or up to 10% of the turnover for non-compliance. The coimisiún may issue a notice to end that non-compliance. Failure to comply can lead to an offence for which officers may be found liable. My advice is that this is just not workable and that what we have in the Bill, after extensive engagement with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences, is what is workable, which is why it is in the Bill. I am sure there will be engagement with officials on other amendments. I have committed to that between now and Report Stage. I am sure this will arise in the engagement.

I am being straight with the Senator that I will not commit, because my advice as it stands is that this is not workable. That does not stop the Senator from engaging further with the officials. I am happy for that to take place, because I know it will happen with other amendments the Senator has tabled. I am not committing to anything. It would not be fair for me to say I will bring something in on Report Stage. Engagement will happen. My advice, as it stands, is that what we have provided for in the Bill is workable and the amendment is not.