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

Go raibh maith agat as an deis an t-ábhar ríthábhachtach seo a phlé agus gabhaim buíochas leis an Seanadóir Mullen agus leis na comhurraitheoirí as é a ardú.

I thank Senator Mullen and the Bill's cosponsors for raising this important issue. I will not oppose the Bill. The intention of the Bill is to prevent children from accessing pornographic material on the Internet. As a parent, I am aware of and share concerns regarding children accessing inappropriate and harmful online content. As the Minister with responsibility for media, online safety is a key priority for me. I brought the Online Safety and Media Regulation Act through this House, with significant input from many Senators, which was welcomed by stakeholders and particularly children’s rights organisations such as CyberSafeKids and the ISPCC. This landmark legislation is central to creating a robust legislative framework. It was through this Act that the independent regulator, Coimisiún na Meán, was formally established just over 12 months ago. Online safety is a key priority of mine. In fact, it is a key priority of this Government. In particular, it is this Government's and my priority to ensure the protection of children online. This includes protection from age-inappropriate content like pornography. It is for this reason that I will not oppose the Bill today.

However, it is important to state that there are a number of significant legal and technical issues with the Bill's approach to addressing this matter. The main issue is that the Bill does not set out any role for Coimisiún na Meán, Ireland's online safety and media regulator. An coimisiún is at the heart of Ireland's online safety framework which is built around the recent landmark legislative measures of the Online Safety and Media Regulation Act, the Digital Services Act and the terrorist content online regulation. The online safety framework requires online platforms to put in place systems and processes to reduce the availability of harmful online content and address access to age-inappropriate online content. It puts the onus on these platforms to ensure their services meet their obligations and there are severe penalties, up to and including criminal sanctions, for non-compliance.

It is important to note that Ireland is not alone in building this online safety framework. It is interwoven with related robust EU measures. This is important because Ireland alone cannot make the Internet safer for children. We must do it together, in collaboration with our fellow EU member states and the European Commission. Since I was last in the Seanad discussing online safety in April of this year, Coimisiún na Meán has published a revised draft of its online safety code which it intends to adopt later this year. This is a major positive development. I commend an coimisiún on the work it has undertaken to date to create a safer online environment.

Crucially, the code will be binding and will focus in particular on ensuring the safety of children from harmful online content. It will oblige video-sharing platform services established in Ireland to protect children from harmful and age-inappropriate content like pornography. This also encompasses a wide range of other content, including serious cyberbullying, racist and xenophobic material and material that encourages or promotes eating disorders, self-harm or suicide. The measures these video-sharing platform services must take to deliver on this protection for children include the operation of age verification systems, which includes age assurance measures. The measures taken must be proportionate to the content and type of content permitted on particular services. For instance, those designated services that allow pornographic material to be uploaded by users must operate appropriate age assurance mechanisms to ensure children cannot encounter this type of material. The online safety code will also provide for requirements around the operation of content rating systems, parental controls, and effective reporting, flagging and complaint mechanisms. These measures will further safeguard children against harmful and age-inappropriate content such as pornography. Once the code is applied, it can be enforced by Coimisiún na Meán, including through significant financial penalties of up to €20 million or 10% of turnover. In addition, continued non-compliance can lead to criminal sanctions for company directors and senior managers.

It is important to note that the services in the scope of the online safety code are limited to those established in Ireland for the purposes of their European operations. This therefore includes services such as X, Reddit, Instagram and YouTube. This limitation is in place because the online safety code implements the EU’s audiovisual media services directive. Enshrined in how the directive works is the country-of-origin principle. It means that services are regulated in the EU member state of establishment. The concept ensures a coherency of regulation, making it easier for services to operate across the EU while also ensuring widespread compliance with these regulatory standards.

For services established in another member state, it is the responsibility of that member state to ensure that platform’s services are subject to the standard of regulation set out by the directive. Three websites are regularly mentioned in this area: Pornhub, XVideos and Stripchat. These websites are not established in Ireland and therefore are not regulated by Coimisiún na Meán regarding the audiovisual media services directive and the online safety code but by the relevant regulator in their EU member state of establishment. This does not mean that these websites are not regulated in the EU. On the contrary, under the Digital Services Act, the most stringent of its obligations apply to very large online platforms, VLOPs, and very large online search engines, VLOSEs. The three websites I mentioned - Pornhub, XVideos and Stripchat - are designated as VLOPs. The European Commission enforces the Digital Services Act in respect of VLOPs and VLOSEs, with the support of the network of digital services co-ordinators across the EU. Coimisiún na Meán is Ireland's digital services co-ordinator, which gives assurance in terms of seamless regulation across the various legislative measures.

Under the DSA, platforms must complete risk assessments and take effective measures to address any identified risks of exposure of children to inappropriate services, including by means of age verification or age assurance. The European Commission has already requested information from the three named websites on these particular issues, in particular on the age assurance mechanisms that those websites are operating. The penalties for noncompliance with the Digital Services Act are up to 6% of global turnover.

Separate to the code, it is important to note the work of the youth advisory committee established by Coimisiún na Meán on foot of a requirement in the Online Safety and Media Regulation Act. It is important that young people who are impacted by harmful online contact have a voice. This was a useful suggestion from the Seanad, and I was happy to take it on board and include it in the legislation. The committee comprises representatives from nine national youth groups, including the Children's Rights Alliance and CyberSafeKids, along with nine individuals under the age of 25. As is also required under the legislation, an coimisiún consulted with this committee during the development of the online safety code and briefed the committee after the revised draft was published.

There are also a range of non-legislative initiatives being taken at EU level in this area, such as the EU task force on age verification, which is working on practical guidelines relating to the age assurance measures and the better Internet for kids strategy, which aims to produce a code of conduct on age-appropriate design and an age verification toolkit. It is important that we continue to contribute to these initiatives, to ensure better online safety measures.

In the wider discussion of this issue, there has been mention of measures that some US states have introduced or are in the process of introducing, specifically age verification measures to access pornographic websites. In response, I understand that some of those websites have withdrawn from those US states. The legal and regulatory environment in the EU is very different from that of the US. The US has no online safety regulator or state-wide online safety legal framework. This means individual states can act independently in this respect.

We have online safety legislation that applies across the EU, enforced by the European Commission and independent regulators in each member state. This means that Ireland cannot act unilaterally, nor should it. For example, I understand France sought to implement its own national legislation on age verification and age assurance and the European Commission has notified France that such laws would be contrary to the DSA. It is my view that by participating in a unified and coherent EU approach, as Ireland is doing, and working with the European Commission, we will bring all the platforms, including those named platforms, to account and we will achieve the aim of protecting our children from age-inappropriate content.

Moving to Senator Mullen's Bill itself, I will address some of the other legal and technical issues. First, there are potential legal conflicts with the country-of-origin principle, a concept I have already mentioned. The principle is long established under European law, strongly supported by Ireland and committed to in our national digital strategy. This Bill, however, seeks to impose obligations on online services that are established in other EU member states and therefore undermines this principle. Recent decisions by the Court of Justice of the European Union on similar issues have been in line with this principle, and the European Commission would likely strongly object to any effort to breach it.

The Bill also appears to provide for ministerial powers to create regulations to supplement the Bill's provisions. On first examination, I would be concerned that there is insufficient legal basis and a lack of appropriate limits set out in the Bill. These provisions also fail to consider the statutory role and regulatory independence of Coimisiún na Meán, which is a requirement under the audiovisual media services directive, the Online Safety and Media Regulation Act and the Digital Services Act. These issues cannot be ignored, no matter how important the policy priority.

Other provisions of the Bill do not appear to be sufficiently clear in terms of the obligations that are to be imposed. For instance, section 2 states simply that a website or application that is accessible on the Internet containing pornographic material shall not be accessible to children in Ireland. Given the proposed potential offences, further clarity would be of benefit and probably necessary. Those offences are connected with requirements under sections 2 and 3 of the Bill but appear to conflict with the liability exemptions under the Digital Services Act. Under the Digital Services Act, hosting services should not be liable for specific illegal content made available by a user, as long as the service does not have knowledge of the illegal content and, once it becomes aware of it, works expeditiously to remove or disable access to it. As mentioned, the offences appear to conflict with this article.

I agree with Senator Mullen that we need to tackle the accessibility of age-inappropriate online content, in particular pornographic material, to children. For that reason, I am not opposing the Bill. It is also for that reason - the importance of protecting our children - that the Government has put in place a new online safety and media regulator, supported it in recruiting additional staff and prioritised significant legislative measures to give it teeth. Just yesterday, the Digital Services (Levy) Bill was debated here and completed its passage through the Houses. That legislation will enable an coimisiún to support its role by levying industry in respect of its functions. This is vital to ensure that an coimisiún can effectively fulfil its function of keeping our children safe and ensure that platforms pay for the cost of regulation. Nevertheless, I do not oppose the Bill and I thank Senator Mullen and the Bill's cosponsors for raising the issue.