Dara Calleary (Mayo, Fianna Fail) | Oireachtas source

I will speak on the amendments. Amendments Nos. 27 to 34, inclusive, are grouped together because they all relate to trusted flaggers. Amendment No. 27, as proposed by Senator Keogan, requires an additional provision in the Bill stating that Coimisiún na Meán will "ensure the status as a trusted flagger is not awarded to an entity which is partisan and seeks the status as a trusted flagger as means of controlling or influencing content". We had a very good discussion at the committee and in the Dáil around this. It may be useful to outline some important details about the trusted flagger framework, including the application, the conditions, the transparency provisions and the role of the DSC. As I said to Senator Ruane earlier, I want to acknowledge the engagement of the Civil Engagement Group, and Senator Higgins in particular, on the Bill. My officials are available to walk Senators through the process of the Bill. I apologise for the rush this evening. I will speak to it later. We will walk Senators through the process in advance of the regulations. I want to reiterate that.

A core objective of the EU digital services regulation is to expedite the removal of illegal content from online services. One mechanism for facilitating this is the framework for trusted flaggers established by the regulator. Providers of online services are obliged to prioritise notices submitted by trusted flaggers about the presence on their service of specific items of information that the trusted flagger considers to be illegal content. The designation of priority content by trusted flaggers does not allow trusted flaggers to require the provider to automatically remove content. It means that the provider must give priority to the reviewing of notices submitted by trusted flaggers over other notices submitted to them. The Digital Services Bill simply sets out the stats in relation to the application process to Coimisiún na Meán for trusted flagger status. The Bill does not provide for Coimisiún na Meán to apply specific criteria for determining who or what may or may not be awarded trusted flagger status. That is because such criteria are defined in the digital services regulation.

The question of whether an applicant is or is not granted a designation as a trusted flagger depends on them meeting the set of conditions as defined in the regulation. The regulation provides for the DSC to award the status of trusted flagger to entities that satisfy three conditions: it must have particular expertise and competence for the purposes of detecting, identifying and notifying illegal content; it must be independent from any provider of online platforms; and it must carry out its activities for the purposes of submitting notices diligently, accurately and objectively. Ireland does not have scope to amend this set of conditions. The EU regulation has direct effect in this regard. Digital services co-ordinators in each member state have to use the same set of conditions in assessing whether an applicant is to be designated as a trusted flagger. Trusted flaggers can be public in nature, such as law enforcement authorities in the case of terrorist content; or they can be non-governmental organisations, including private or semi-public bodies, such as organisations dedicated to reporting child sexual abuse material or illegal racist content. However, the trusted flagger is not the arbitrator of illegal content. The trusted flagger simply notifies the provider when they consider that there is illegal content on the provider’s platform. In the notice, the trusted flagger must provide a sufficiently substantiated explanation of the reasons the trusted flagger alleges the information in question to be illegal content. The provider is obliged to come to a decision in a diligent and non-arbitrary manner on whether content flagged by a trusted flagger is illegal. Again, the decision by the provider is focused on whether the content is illegal, not on whether people may have a political difficulty with or a values difficulty with the content. It is a matter of illegal content.

Amendments Nos. 28 and 31, in the name of Senator Higgins, seek to require Coimisiún na Meán to publish a database of trusted flaggers. It is already the case that the DSC must provide the European Commission with the details of entities to which it has awarded trusted flagger status.They must also provide information about those trusted flaggers whose status has either been suspended or revoked. The European Commission must then publish that information in a public database. On the point about patterns, when it is published on an EU-wide basis it will be much easier to identify such patterns.

Amendments Nos. 29 and 30 both seek to insert a provision requiring Coimisiún na Meán to conduct a review of the status of any trusted flagger, either as part of a systematic process of reviewing the notices submitted by trusted flaggers, as set out in amendment No. 29; or on their own initiative or based on information from a third party, as set out in amendment No. 30. If Coimisiún na Meán has reason to suspect that there is misuse of the status based on information from a provider or a third party, it is already provided for that it can investigate the entity concerned, with its trusted flagger status being suspended during that investigation. I do not consider that the amendments provide any additional opportunity to review the activities of trusted flaggers that is not already in place in the digital services regulation framework and the Bill.

Amendment No. 33 seeks to extend from 14 to 28 the number of days during which a review of a refusal or a revocation of status of trusted flagger can be requested. As I previously outlined in relation to the review for vetted researchers as proposed by Senator Byrne, this 14-day period is considered fair and proportionate. It is, in my view, enough time for the applicant to have received the notice of refusal or revocation, while ensuring that the administrative processes of Coimisiún na Meán can be carried out efficiently.

On amendments Nos. 32 and 34, Article 22(7) of the digital services regulation provides that third parties can complain about trusted flaggers. It states:

The Digital Services Coordinator that awarded the status of trusted flagger to an entity shall revoke that status if it determines, following an investigation either on its own initiative or on the basis of information received from third parties, including the information provided by a provider of online platforms ... that the entity no longer meets the conditions set out in paragraph 2 [of Article 22].

One of the conditions in Article 22(2) is that "it carries out its activities for the purposes of submitting notices diligently, accurately and objectively". As I have just outlined, and I apologise for the detail here, the conditions associated with being awarded trusted flagger status, combined with the reporting and transparency provisions around their activity on an EU-wide level, are in place to ensure they can act in a competent and objective manner. Coimisiún na Meán can investigate the trusted flagger on its own initiative or based on information received from third parties. All in all, I consider this to be a robust framework that supports the trusted flagger mechanism in achieving the objective of the digital services regulation in locating and removing illegal - I stress the word "illegal" - content online.