Lynn Ruane (Independent) | Oireachtas source

I move amendment No. 8:

In page 18, line 6, to delete “may” and substitute “shall”.

Amendments Nos. 8 and 9 seek to strengthen wording in the Bill by specifying that an authorised officer shall rather than may impose a daily penalty on an online platform for an ongoing contravention of the regulation. In order for the regulation to constitute a meaningful deterrent to harmful behaviour by online platforms, it seems important that a company should know with certainty that it will face consequences for its actions. The imposition of a daily penalty for an ongoing contravention should be a standard enforcement pillar of this Bill.

Amendment No. 9 is more targeted in that it specifies the use of the word “shall” in the cases of providers of very large online platformsor very large search engines. This would allow some discretion for the authorised officer to choose not to impose a daily penalty on smaller platforms, while making the daily penalty obligatory for providers of very large online platforms. This is in keeping with the spirit and letter of the digital services regulation, which rightly imposes much more onerous duties on very large online platforms, given the seriousness and widespread harm that can result to millions of users when they do commit contraventions. The idea that a very large online platformthat hosts millions of users could commit a contravention on an ongoing basis and not be fined on a daily basis for that contravention is unacceptable. Again, to revisit the points I raised earlier regarding the harm that can be inflicted on children due to the manipulative profiling and targeting practices of platforms, the idea that a platform could be found to be in breach of those safeguards relating to children and not be fined on a daily basis is unacceptable.

Amendment No. 10 is related and specifies that when a daily penalty is imposed and authorised, the officer shall give notice in writing about the penalty. It is unclear why the delivery of a notice in writing of the daily penalty would be optional. Clearly, it is best practice to communicate every single stage of the disciplinary and enforcement process to the platform. Therefore, a notice in writing of a daily penalty should be obligatory.

Amendment No. 11 seeks to insert stronger wording and specifies that the commission shall require an intermediary service provider to take interim measures. I note that there was an error in the transcription of this amendment. It should refer to line 35, not line 12. The test provided under subsection (1) is already very strong. It specifies that only if there is evidence that a contravention has taken place, that the contravention is ongoing, and there is a risk of serious harm from the contravention that the commission may then instruct the provider to take interim measures to end that contravention. The threshold for action under this section is already extremely high. Therefore, it is unclear why after that threshold is met, there must also be discretion in ordering interim measures. It is unclear why an ongoing harmful contravention would ever be allowed to continue without imposing interim measures. This amendment seeks that once the very onerous test under subsection (1) is met, that measures shall then be ordered.

Amendment No. 12 seeks a similar strengthening of wording. It again specifies that interim measures shall be applied in the case of very large online platforms, but leaves discretion for the commission not to apply interim measures in the cases of smaller platforms. I am aware that this section deals with intermediary service providers. However, I am concerned that some of the decisions in relation to intermediary service providers may still be linked to very large online platforms. If, for example, an Internet service provider is committing an ongoing contravention but is a provider through which users access very large online platforms, how are the rules applied? In amendment No. 12, we are seeking to clarify that when a contravention by a intermediary provider may relate to a very large online platform, the interim measures shall be applied. Amendment No. 21 seeks stronger wording whereby an coimisiún “shall” impose a daily penalty when a provider fails to comply with a notice to end a contravention. This is particularly serious because it refers to a situation that already will have escalated past several disciplinary stages. Thus, this section refers to a scenario in which not only has a contravention been identified and a notice to end that contravention has already been issued to the provider, but the provider is continuing to ignore that notice and is failing to comply. This would not be a matter of a small oversight by a provider but a sustained and flagrant flouting of the rules. In this scenario, quite a high threshold will have already been passed and there already will be evidence of a sustained contravention and an unwillingness to comply. In this scenario, it should be obligatory for an coimisiún to impose a daily penalty. It is difficult to imagine a scenario where such a sustained lack of regard for the rules would not warrant that daily penalty. It is for this reason that we recommend the use of the stronger term “shall” instead of “may”.

Amendments Nos. 43, 52 and 53 are simple enough. They propose to replace “may” with “shall”.