Monday, 11 July 2022
Online Safety and Media Regulation Bill 2022: Report Stage
I welcome the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, to the House. I remind Senators that they can speak only once on Report Stage, except the proposer of an amendment, who may reply to discussion on that amendment. On Report Stage, each non-Government amendment must be seconded.
Amendment No. 1 is in the name of Senators Ruane and Higgins. Does Senator Ruane have a seconder?
I move amendment No. 1:
In page 8, between lines 24 and 25, to insert the following: “ “political purposes” means any of the following purposes, namely—
(a) (i) to promote or oppose, directly or indirectly, the interests of a political party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament,
(ii) to present, directly or indirectly, the policies or a particular policy of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament,
(iii) to present, directly or indirectly, the comments of a political party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament with regard to the policy or policies of another political party, political group, a member of either House of the Oireachtas, representative in the European Parliament or candidate at an election or referendum or otherwise, or
(iv) to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome at a Dáil, Seanad, European or local election, or referendum, such campaign relating to an election for which the polling day has been set by Government or a referendum for which the Commission has published a referendum notice,
(b) to promote or oppose, directly or indirectly, the election of a candidate at a Dáil, Seanad or European election or to solicit votes for or against a candidate or to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate with regard to the policy or policies of a political party or a political group or of another candidate at the election or otherwise;
(c) otherwise to influence the outcome of the election or a referendum or campaign referred to in paragraph (a)(iv);”
I thank the Cathaoirleach Gníomhach and apologise for the confusion. I thought the session was on at 4 p.m. so was not organised when we went straight into it.
This amendment is the same as those we tabled on Committee Stage. At that time, the Minister said she would get some sort of legal briefing and feedback on that amendment. We had the Electoral Reform Bill then, so we kicked the same conversation to that Bill. It seems like no one wants to take responsibility for looking at the issue of political purposes within the legislation.
As drafted, there is no reference to, and therefore no definition of, "political purposes". The Bill makes reference to section 46M and the prohibition on advertising which is directed to a political end but, as I stressed previously, what constitutes a political end is unclear and can capture a huge amount of everyday advocacy and activism if put in legislation without definition. The term is vague, is an unusual one to be included in legislation and risks preventing a broadcaster or digital service provider from sharing information which is in the public interest through advertisements. While existing legislation curtails political advertising, the provision as drafted in the Bill could be misinterpreted to such an extent that important political issues would be conflated with the content of political advertisements.In response to the concerns I have highlighted, amendment No. 79 seeks to delete the term "political end" from the Bill and to substitute it with "political purposes". Amendments Nos. 1 and 83 separately provide definitions for the term "political purposes" in the legislation in circumstances where amendment No. 79 is accepted by the Minister. Our conduct with respect to fundraising as politicians is regulated in the context of the Electoral Acts, but a significant flaw exists in the wording of "political purposes" in the Electoral Acts which means that our laws do not fairly distinguish between the regulation of campaigns of politicians and how we treat the normal, everyday advocacy-led and community-led campaigning throughout the country. We must ensure that this same anomaly is not replicated in this legislative measure and that is why the definition is provided for through amendments Nos. 1 and 83.
During the course of our engagement with the Minister on this over the past number of months it was noted that a separate legislative measure, the Electoral Reform Bill, might be a more appropriate channel in which to address this concern. Unfortunately, however, despite our best efforts, amendments to the definition of "political purposes" were not accepted during our engagements with the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, and the Minister of State at the Department of Housing, Local Government and Heritage, Deputy Noonan, on the Electoral Reform Bill, the rationale being that a wider review of the Electoral Acts is proposed to be undertaken shortly by the soon to be established electoral commission. In light of this, will the Minister be able to accept this suite of amendments in the Online Safety and Media Regulation Bill? As I have stressed, the provision in the Bill as drafted is too vague and risks important political issues.
We have spent a great deal of time recently trying to address the unintended consequences of the term "political purposes" in previous legislation only to have this Bill further muddy the water in terms of vague phrases such as "political end". I urge the Minister to have regard for this concern in this respect and accept the amendments. I hope she can see that for this Bill to go forward without a real understanding of "political purposes" when it intersects so much with what the rest of the Bill does in terms of regulation of media and advertising, it would be unwise to have a term such as "political end" without a definition in the Bill.
I will be brief in seconding the amendments. We have debated back and forth and the key point we highlighted is that this already has been identified, recognised and accepted to be a problem. It was recognised as a problem most recently even by the Standards in Public Office Commission, SIPO, in its engagement with the committee on finance and public expenditure on other legislation. It highlighted this issue as an area of ambiguity and one that needed clarification.
There was a problem with seeking to try to deal with this solely through the electoral commission anyway. The problem is that political purposes is currently constituted much wider than the electoral processes. Dealing with it in an electoral context was not the issue, the problem is that it is widely interpreted way beyond the electoral space. However, the Government had argued that it would deal with it as part of the electoral commission legislation, but then it did not deal with it.
When something has been highlighted as causing concern and ambiguity and being a problem, it is bad practice that we are putting that very wide definition again into another legislative measure which will have a very wide reach far outside the electoral space. While the Minister was very specific about not wanting to cut across the area of the Minister for Housing, Local Government and Heritage in this regard, that Minister has not shown the same concern because the Electoral Reform Bill includes definitions relating to algorithms, recommender systems and all these other areas which we also wanted to address in this Bill. We were told it had to wait for the digital services directive, yet the Electoral Reform Bill went ahead and ploughed right into that area and did not wait for or even reference seeking to try and engage with this legislation.
The online safety media regulation, which ultimately is not responsible for regulating elections but responsible for regulating online content, is allowing that excessively broad definition to continue to apply and is creating a hostage to fortune. The interpretation of "political purposes", and it arises in many Acts, including the previous broadcasting legislation, has caused trouble and ambiguity in those areas. I still remember when I worked with Trócaire and when an advertisement saying that girls across the world experience discrimination or additional obstacles was deemed to be too much of a political purpose to be allowed to be broadcast. It was just a straightforward statement of fact, but arguably it had the political purpose of promoting gender equality. That is how widely it has been interpreted in the past and that is why it is a problem specifically in the Minister's area in terms of media regulation.
I thank the Senators for their amendments, which seek to replace the phrase "political end" in the Bill with a definition of "political purposes", with the aim of amending the current definition of "an advertisement towards a political end". As I set out on Committee Stage, the term "an advertisement towards a political end" has been defined in the 1998 High Court judgment in Colgan v. the Independent Radio and Television Commission, IRTC. This case involved an appeal against a decision of the Independent Radio and Television Commission to prohibit broadcasters from broadcasting an anti-abortion advertisement prepared by the organisation Youth Defence. The definition used in Colgan v. IRTC is currently used by the Broadcasting Authority of Ireland. In fact, the authority has a guidance note on its website which sets out, in accordance with the judgment, the practical meaning of the phrase.
I note that the proposed definition of "political purposes" stems from the Senators' proposal to amend section 22(2)(aa) of the Electoral Act 1997 as part of this House's consideration of the Electoral Reform Bill. Given that the Minister of State at the Department of Housing, Local Government and Heritage, Deputy Noonan, did not accept this proposal, I cannot accept it either. However, I understand that the Minister of State has set out on a number of occasions that the electoral commission, once established, will carry out a comprehensive review of aspects of election legislation in Ireland, including in respect of the definition of "political purposes".
Notwithstanding the Minister's response and referring to where the term "political end" comes from in the context of that case involving anti-abortion material, just because the term is defined elsewhere does not mean the term is not problematic and is not going to cause an issue in this legislation and in the wider context of anything else that may be deemed a "political end", so I will press the amendment.
Garret Ahearn, Jerry Buttimer, Malcolm Byrne, Maria Byrne, Micheál Carrigy, Pat Casey, Shane Cassells, Lisa Chambers, Lorraine Clifford-Lee, Martin Conway, Ollie Crowe, John Cummins, Emer Currie, Aisling Dolan, Mary Fitzpatrick, Gerry Horkan, Seán Kyne, Vincent P Martin, John McGahon, Erin McGreehan, Joe O'Reilly, Mary Seery Kearney, Barry Ward.
I welcome Representative Mark McBride and his wife, Jennifer, from the great state of Oklahoma, to the Distinguished Visitors Gallery. I thank them for coming to Leinster House. One Senator neglected to vote but the record has been amended to reflect the fact that said Senator, in fact, intended to vote.
Amendments Nos. 5 and 15 are intended to replace two references to user-generated video with references to user-generated content. Amendment No. 5 will amend the definition of “commercial communication” to replace the reference to user-generated video with a reference to user-generated content. Amendment No. 15 will amend a line in section 7 regarding the functions of an coimisiún in respect of regulatory arrangements to again replace the reference to user-generated videos with a reference to user-generated content. The reason for this is that user-generated content refers to all forms of user-generated material, whereas user-generated video only refers to video material that is generated by users. These errors were noticed during consideration of a number of the amendments proposed by Senators on Committee Stage.
I ask the Minister for clarification. At least one of these amendments relates to commercial communication. Is that where this change is being made? It is quite different to other user-generated content that might be personal or whatever. As I understand it, this change relates to user-generated content within the definition of commercial communication.
While also addressing a number of amendments tabled by Senators on Committee Stage, the Government amendments in this group give effect to my commitment to explicitly provide for the role of online safety commissioner in the Bill. This was a key recommendation of the report of the Joint Committee on Tourism, Culture, Arts, Sport and Media in its report on the pre-legislative scrutiny of the general scheme of the Bill.
In this regard, amendment No. 6 provides for relevant definitions for the operation of this provision, including a definition of the online safety commissioner. Amendment No. 37ensures that the online safety functions of coimisiún na meán are generally delegated to any designated online safety commissioners.Amendment No. 44 provides that "One or more of the Commissioners shall be designated in writing by the Minister on the recommendation of the Public Appointments Service as an Online Safety Commissioner". It is important to recognise that the online safety functions of coimisiún na meán are likely to expand significantly over time and, as such, it is important to provide that more than one commissioner can be designated as an online safety commissioner. In this regard, it is intended that the Public Appointments Service will commence a public recruitment campaign for the role of online safety commissioner in the coming weeks. Amendments Nos. 36, 38, 39, 45 to 50, inclusive, and 53 are all consequential amendments to provide for updates to the numbering of subsections subsequent to those inserted by amendments Nos. 37 and 44. I recognise the intentions of amendments Nos. 40 and 51, proposed by Senators Higgins and Ruane and Senators Malcolm Byrne and Cassells, respectively, but note the issue they raise is addressed by the Government amendments.
I thank the Minister. I hope that we will be able to move through Report and Final Stages a lot more quickly than we moved through Committee Stage as we considered many of these issues in detail during those debates. I put on record our thanks to the Minister and her officials for their engagement not only in this House, but also privately, in seeking to address some of the concerns and suggestions we had. Many of the specific recommendations have been taken on board and we are particularly happy that the designation of an online safety commissioner is specifically included in the legislation. As the Minister has mentioned, this was specifically sought by those of us who sit on the Oireachtas Joint Committee on Tourism, Culture, Arts, Sport and Media. That is why Senator Cassells and I brought forward our very specific amendment, which we will be happy to withdraw in light of the amendment proposed by the Government. It is welcome that the recruitment process for the online safety commissioner will start quite soon. I hope that, all going well, he or she will be in place before the end of the year. The question is then one of ensuring the office is adequately resourced. That will be vital. These will be budgetary considerations but the establishment of this commission, which will be one of the most powerful regulators in the State, and this office in particular, which we and many organisations including the Children's Rights Alliance believe to be critically important, is welcome. We are very happy that the Minister is bringing forward these amendments. We support them strongly.
I again thank the Minister and her officials for engaging with this issue, which was raised by Members right across the House including ourselves and Government Senators. She will be aware that our amendment No. 40 goes a little bit further in that it specifies some of the areas in which the online safety commissioner could potentially have duties or responsibilities. I know that there will be opportunities to build on this in the Dáil. I imagine some of the discussion on identifying and naming key areas of action for an online safety commissioner may be elaborated upon there. The core thing, which we all made clear in the early parts of the debate, is that the Bill is leaving the Seanad with a firm commitment to and requirement for at least one designated online safety commissioner, although there may potentially be more. I thank the Minister for that. I will be watching with interest to see if some of the potential functions of the commissioner we have signalled in amendment No. 40 are elaborated upon as the Bill moves forward to the Dáil after the recess.
I echo the points made by Senator Malcolm Byrne with regard to resources. There will be budgetary discussions over the summer. I lend our voice to those hoping that the Minister will be given the proper resources to fund these functions properly in order that the commission is able to perform its functions to a really high level right from the get-go in 2023.
I concur with the comments of Senators Higgins and Malcolm Byrne. As was emphasised by the Oireachtas joint committee, it is extremely important that there be an online safety commissioner. I thank the Minister for taking that on board and bringing a proposal for such a position here today. I concur with those who have thanked the staff in the Department. Every phone call any of us made on this matter was replied to and there was full interaction and discussion on any parts of the Bill we asked about. I will emphasise again what Senator Malcolm Byrne has said, which is that the online safety commissioner must be properly resourced to carry out his or her role. That is important and will send out a very strong message.
Amendment No. 7 is intended to address matters raised by Senators Malcolm Byrne, Cassells, Higgins and Ruane on Committee Stage. Section 7(2)(b) of the Broadcasting Act 2009 as amended by section 7 of the Bill requires that, in performing its functions, an coimisiún shall endeavour to ensure that the interests of the public, and the interests of children in particular, are protected. This amendment will further clarify this provision. With regard to the matter of child safety raised by Senators Malcolm Byrne and Cassells, this amendment provides that, in protecting the interests of children, an coimisiún will have particular commitment to the safety of children. As to the matter of promoting the interests of the public and children raised by Senators Higgins and Ruane, I am confident that the inserting the term "commitment" will clarify that coimisiún na meán will both guard and promote the interests of children as regards their safety.
I note that the issue raised by amendment No. 9 tabled by Senators Malcolm Byrne and Cassells is addressed by the amendment I have brought. I set out some of my concerns regarding amendment No. 8 on Committee Stage. I remain of the view that it is not appropriate to highlight the rights of privacy and reputation in relation to the functions of coimisiún na meán. The mechanism to protect and vindicate these rights is set out in other legislative instruments, specifically the Data Protection Act 2018 and the general data protection regulation in relation to privacy and the Defamation Act 2009 in relation to reputation. A reference to those rights may give rise to the expectation or inference that an coimisiún has some specific function in protecting those rights. Accordingly, I do not intend to accept the amendment.
This amendment goes some way towards addressing some of our concerns and ensuring that child safety is at the core of the functions of an coimisiún. I am very happy with the Minister's amendment and will strongly support it. As for our concerns about the right to privacy and reputation, I will not reiterate the point that we raised on Committee Stage but the Minister will be aware that it was about the balance between competing rights, that is, the right to freedom of expression, which is clearly set out in the legislation, and the rights I have mentioned. However, given the overall language of the section and given the Minister's points, her amendment will be accepted and we will withdraw ours. I again thank her for taking on board our concerns.
I thank the Minister and all of the staff in the Department for taking on board our concerns. We spoke specifically about the sections pertaining to the interests of children. This was motivated by the discussions with the special rapporteur on child protection when he came before the committee and with students who came from various primary and secondary schools to debate these points with us. I thank the Minister for taking these points on board. I note what she has said about the right to privacy already being addressed. We had a robust debate during our first encounter. Like my colleague, I am happy to withdraw the amendments.
We are happy to withdraw our amendment in light of the Government's amendment that specifically addresses our desire to include the phrase "socio-economic". We think that the Government's amendment, which also makes reference and addresses some of our concerns and makes reference to “linguistic, socio-economic, and gender diversity”, is a stronger amendment, which is welcome.
The Government's amendment No. 11 deals with the "socio-economic" issue and addresses a number of concerns about linguistic rights that my colleagues and I highlighted throughout the debate. I would have liked to have seen a specific reference to Irish Sign Language but I welcome the recognition of linguistic and socioeconomic diversity and the reference to gender diversity.
I note that my colleagues and I have not rescheduled a number of our Committee Stage amendments in light of the Government's broadening of its text in this section and welcome that step.
Amendments Nos. 12 and 13 address matters raised by Senators Warfield, Ó Donnghaile, Gavan, Boylan, Higgins and Ruane on Committee Stage as regards the representation and participation of people on broadcasting and video-on-demand services.
Section 7(2)(c) of the Broadcasting Act 2009, as amended by section 7 of the Bill, requires that an coimisiún shall endeavour to ensure that broadcasting and video on-demand services available in the State are open, inclusive and pluralistic, bearing in mind various characteristics of the people of Ireland. In this regard, these amendments require coimisiún na meán to bear in mind the participation and representation of the people of the island of Ireland in terms of its policies towards broadcasting and on-demand media services. A distinction is made between participation, which means involvement in the activities of those services, and representation, which means being in programmes made available by those services.
Furthermore, by locating this amendment within the matters regarding the people of the island of Ireland that coimisiún na meán must bear in mind in respect of its policies towards broadcasting and on-demand media services, the amendment covers the participation and representation of all groups of people living on this island. While consideration was given to specifying specific groups or protected characteristics in this amendment, I think it prudent to ensure that the amendment is drafted to cover all the people of our island in all of their diversity in order that there is no implication that any people are omitted by this provision, particularly cultural minorities.
On amendment No. 14, amendment No. 12 addresses the concern regarding the right to and importance of cultural participation, which is a right ultimately set out in the Universal Declaration of Human Rights.
I welcome amendment No. 12. Again, it concerns the key issue of participation, which we have debated back and forth. I am really glad that this key issue has been taken on board. Of course, participation is not the same as representation and vice versa. They perform in different areas.
The Government amendment is constructive and is in the spirit of the audiovisual directive and l'exception culturelle, whichrecognises culture is not solely a commercial activity that needs to be regulated but a right that has incredibly important cultural and social functions.
As the Minister mentioned, our amendment No. 14 is very much in the spirit of the UN declaration. It also reflects the spirit of EU law and EU perspectives in terms of the role of culture and the importance of participation. However, I believe that these issues have been adequately and constructively addressed in Government amendment No. 12 and its reference to "their levels of participation in those services and their levels of representation", which will be placed alongside and will complement the "religious, ethical, cultural, and gender diversity" in section 7(2)(c)(iii) and the reference to people with disabilities in section 7(2)(c)(iv). It is in that context that I am happy to withdraw amendment No. 14. I thank the Minister for taking all of this on board as by naming participation in this way, a much stronger mandate is being sent to the commission. This is a reminder that the commission will not simply regulate a commercial service or access to same but in fact will play a role in supporting and considering the level of participation in shaping our shared culture.
I am conscious that the Minister may table amendments later that come at this matter from a different angle.
Amendment No. 16 sought to ensure that equality and human rights are imbedded at an earlier stage in the powers and functions of the commission. As the Minister will be aware, I tabled multiple amendments to embed equality and human rights, given the public duty to equality and human rights, throughout different aspects of this legislation. I believe that probably one of the best places for equality and human rights to be reflected is at the top level, as that would have a cascading effect on the powers and functions of the commission.The Minister has engaged a little with these issues elsewhere but I still believe it would be beneficial to have them addressed at the top level. There is also the cultural participation issue. That has been addressed but I would still like to see equality and human rights ensconced there.
Similarly, amendment No. 17 seeks to ensure that, as well as dealing with societal and technological change, environmental considerations would be explicitly taken account of in regulatory arrangements. I am very concerned about environmental considerations in this area. It is not just about the content because there are some good provisions later in the Bill around things like the European levy and the European work schemes and environmental content. What I was trying to get at here was environmental considerations. I am thinking of the considerable energy usage attached to certain forms of online activity and the fact that there are choices there in terms of energy-intensive or non energy-intensive options. For example, it takes the equivalent of a few transatlantic flights to train an algorithm. That may have been assigned to one of the commercial communication purposes that are regulated by the Bill. I understand that at the moment, Amazon Web Services is one of the largest users of electricity in the State because of data processing. As information emerges in this area, we are going to have to grapple with the intersection between online regulation and environmental regulation. I had hoped amendment No. 17 would strengthen the hand of the commission in that regard. That is why I will proceed with that amendment. I acknowledge that there are good provisions in the Bill around content but this is about placing environmental considerations along with societal and technological ones. If, for example, we had a period of energy shortages or a real debate around data usage, the commission would have something useful to contribute to that debate.
Amendment No. 16 would require the commission to endeavour to ensure that regulatory arrangements support equality, human rights and participation in cultural life. I agree that these should be important principles in guiding the work of the commission and I believe that these principles are set out in various provisions of the Bill as appropriate. Accordingly, I do not accept this amendment.
Regarding amendment No. 17, addressing climate change and environmental degradation are some of the greatest challenges of our time. This will of course impact not only the media sector but our entire society. This Government has taken action through the Climate Action and Low Carbon Development (Amendment) Act 2021, the adoption of carbon budgets and the comprehensive climate action plan. I agree it is important that an coimisiún should take account of these matters. That is why section 7(4) of the Broadcasting Act 2009, as inserted by section 7 of the Bill, requires the commission to take account of the policies of the Government and the Minister for the Environment, Climate and Communications as regards climate change and environmental sustainability. Accordingly, I do not accept this amendment.
Amendment No. 18 addresses a matter raised by Senators Warfield, Ó Donnghaile, Gavan and Boylan during Committee Stage. This amendment, and its consequential amendments Nos. 19 to 22, inclusive, 28, 29 and 129, require coimisiún na meán to promote and encourage the use of the Irish language by communications media operating in the State. In this regard, communications media is defined in the Bill as:
(a) broadcasting services,
(b) audiovisual on-demand media services,
(c) designated online services, or
(d) newspapers or periodicals consisting substantially of news and comment on current affairs;
As such, the amendment places a broad duty on an coimisiún to promote the use of the Irish language, both in terms of business use and content, by media in Ireland. The Bill as initiated had already set out the responsibility of an coimisiún to promote and stimulate the development of programmes in the Irish language, so this amendment is effectively further clarifying the important role an coimisiún will play as regards the promotion of the Irish language.
I welcome these amendments, especially amendments Nos. 24, 25 and 26. We had a good discussion on Committee Stage about what exactly is meant by an educational institution or looking at it from too top-heavy a point of view. We need more grassroots, on-the-ground community involvement and consultation, recognising that co-operation is needed with community, local and sporting bodies as regards education and training initiatives. That way, it will not all fall within the education sector, which would have removed the huge number of people involved in education within the community or in their local community colleges.
We will come to that issue in a moment. These amendments on the Irish language are important. It is fundamental that we recognise the importance of access to the Irish language and encourage its use by communications media that operate within the State. That is part of that same principle of the positive role underpinning the audiovisual act, which is not just about protection but also about participation. I would have liked if there was an explicit provision in respect of Irish Sign Language. That may be an opportunity we have missed in this regard. I welcome the strengthened provisions in respect of the Irish language.
Amendments Nos. 23 to 25, inclusive, address a number of matters raised by Senators Carrigy, Malcolm Byrne, Cassells, Higgins and Ruane on Committee Stage.As discussed on Committee Stage, section 7(3)(f) of the Broadcasting Act 2009, as inserted by the Bill, sets out the role of an coimisiún in researching, promoting and endorsing educational activities and co-operating with educational bodies in relation to all matters relating to its functions. This wide provision is designed to enable an coimisiún to play a key educational function regarding online safety and media literacy, amongst other matters under its remit.
On Committee Stage, Senators suggested that this provision should be further clarified to ensure that an coimisiún could work with a wide array of bodies. In response to those points, amendment No. 25 in particular provides for specific references to coimisiún na meán engaging with sporting bodies, as raised by Senator Carrigy, and community bodies, as raised by Senators Ruane and Higgins, in relation to co-operation regarding educational initiatives and activities. This amendment also provides for specific reference to training bodies and local and representative bodies in this regard.
As suggested by Senators Malcolm Byrne and Cassells, amendment No. 24 inserts a specific reference to media literacy. I thank the Senators for their work on Committee Stage. Regarding amendments Nos. 26 and 27, I note that the matters raised within them are dealt with by the amendment I am bringing and accordingly I do not intend to accept those amendments.
I thank the Minister for accepting the proposals we put forward on the sporting organisations. It stemmed from a thought-provoking congress when Larry McCarthy, the president of the GAA, put it forward that sporting organisations needed to get on board in this regard. I believe that in the past month, the GAA has engaged with Google. The Minister of State, Deputy Chambers, was recently in Croke Park to work on this issue. I am delighted that a provision that they would liaise is being put into the legislation.
I also ask that consideration be given to the Sport Ireland Act with a view to perhaps putting in something there to make sure that every sporting organisation actually puts it into their code of conduct. This is the point I was making at the beginning. Each individual sport has its code of conduct and penalties for people who do not adhere to it. I ask that this could be looked at as well. I thank the Minister for including this in the Bill.
I compliment the GAA. I might be a bit biased because I am involved in the association but it has been very thought provoking, has been ahead of the game by getting out ahead of this legislation being put in place and has started to work on implementing it within its organisation.
I thank the Minister for these amendments. I certainly endorse the comments of Senator Carrigy. The Minister will also be aware of our Oireachtas committee report, which dealt with the abuse of officials, sportspersons and referees in particular. There is particular reference to the online abuse that is also being experienced.
The Minister has included media literacy. There will be a major requirement on the new media commission to place an emphasis on media literacy both among young people and in wider society. This is not just about making people aware of the functions of the commission itself. It is also about understanding how our media operates, understanding how online media operates, and understanding how algorithms operate, and so on. To specifically give it this remit is welcome and we will be happy to support the amendments.
I welcome the acceptance by the Government of the references in respect of sporting bodies, as Senator Carrigy has pointed out. As the Minister has said, there is a need for media literacy, not just among educational bodies and society more broadly, and sporting bodies especially.
Two weeks ago, we launched our Oireachtas committee report on bullying within sporting organisations. A specific piece of work also was done on online bullying. Representatives from all the major pillar sports were at the launch in Leinster House and it received significant media coverage. Unfortunately, we cannot legislate for cop-on. Unfortunately, it is an ever-diminishing return in society. I wish that we could legislate for it. That particular report launch came only three days after a very high-profile match that was held, which included an incident involving numerous players in a row that was broadcast live on television and then debated. Subsequently, one of the members involved, who was not a member of the playing squad, was identified online with his name, his profession and everything about him being blasted online. Instantly a hate campaign began, with a trial on social media, without following any of the due regard that sporting organisations have for their own players. Regardless of whether what the young man did was right or wrong - and it was wrong - he equally was entitled to not have his own life decimated in that way. There is a period of education required for sporting bodies and their members about events that happen within sporting organisations and then seeing it blasted out on social media. Our report launch came a short space of time after that incident, which was very welcome because it showed the deficiency within our society and within our own organisations in respect of how we treat each other. Sometimes we treat one another extremely badly online. We would not like to see it happen on the streets but it suddenly becomes acceptable online. There is a coarseness to the discourse that happens online. We cannot legislate for idiots but making insertions regarding educational programmes for all spheres of society is a very welcome step. I hope that those who lead within those organisations engage proactively with the commission so perhaps we can reduce that coarseness and see a bit more decorum in society.
I welcome this set of amendments. There are two issues here, namely, the media literacy issue and the question of the wider reach that is being proposed. When we look at it solely through the educational lens, we are perhaps thinking of the educational skills space but we are leaving aside the fact that this online media permeates every single aspect of society and that everybody needs to be skilled in it at every age, regardless of whether this is an area they are going to work in or be skilled in or whether they are in any kind of formal or informal education system. Specifying the engagement with community, local and representative bodies is really important in terms of training, but especially the community level engagement.
I have emphasised this repeatedly but it is important to note that even the 2019 EU assessment on digital skills pointed out that Ireland has very low levels of digital literacy. More than 40% of the population lack basic digital skills. The media literacy point is really important but it is layered on a requirement for a lot more investment in digital literacy and empowerment. Quite a lot of people who engage actively in the digital space, indirectly and through others, lack those independent skills of engagement. This is important. Media literacy is a useful way to do it because it covers the questions of digital literacy and the question of critical thinking and the capacity to critically analyse the kinds of online media that people are being presented with having targeted at them. I commend that.
I am glad that the Minister took on board the sensible amendments from other colleagues in the House on sporting bodies, which can have a very constructive and positive role. Some of those initiatives were mentioned by Senator Carrigy. In addition, Bohemians Football Club, for example, has had important and useful initiatives around inclusion and the environment. There is a wealth of examples we could give from around the country. It gives the space for sporting organisations to play a positive role. I welcome these amendments.
Amendment No. 30 addresses a number of matters raised by Senators Malcolm Byrne and Shane Cassells on Committee Stage, specifically the suggestion that coimisiún na meán should have regard to the policies of relevant Ministers and the Government regarding the safety of children and the regulation of gambling. This amendment provides for these matters by referring to the relevant Ministers with regard to each matter. For example, it refers to the Minister for Justice with regard to the regulation of gambling. It requires coimisiún na meán to have regard to the published policies of that Minister and the Government on that matter. Lead responsibilities for these matters remains with the relevant Minister and the public bodies under the Minister's aegis.
I note the matters raised in amendments Nos. 31 and 32 are addressed by amendment No. 30 and, accordingly, I am not accepting them.
Amendments Nos. 33 to 35, inclusive, address a matter raised by Senators Malcolm Byrne and Shane Cassells on Committee Stage and give further effect to the provision in amendment No. 30 stating that the coimisiún shall have regard to the policies of the Minister for Justice regarding the regulation of gambling.
Amendment No. 35 states that coimisiún na meán, "co-operate, in relation to the regulation of gambling, with any public body concerned with that matter." The reference to public bodies in this regard is designed to account for the current situation where the regulation of gambling in Ireland is the responsibility of multiple public bodies. The proposed scenario under the gambling regulation Bill foresees a gambling authority having primary responsibility in this regard.
I thank the Minister for taking on board a significant part of the debate last night. Senator Malcolm Byrne and I sought the insertion of a reference to the regulation of gambling in the Bill. I accept what the Minister said, which is that the lead Department with responsibility for this is naturally the Department of Justice, which foresees the creation and implementation of that Bill in respect of gambling late this year. Notwithstanding that, the point that we made is that the sphere in which gambling is now most prevalent is online. As the Minister rightly said, it permeates many different public bodies too. The Bill acknowledges and refers to that. The coimisiún will now seek to reflect the policies of the Minister in respect of gambling, which is significant, because if nothing else, it makes sure that the coimisiún and Department will work hand-in-hand with another Department to make sure there are no loopholes available to this multi-billion euro industry which will do anything to harm young people, in particular. It is our responsibility as a State to protect them and all people. The Leas-Chathaoirleach shares that ethos too. I thank the Minister for making sure that is reflected on the Bill.
I echo Senator Cassells's comments. Amendments Nos. 30 and 35 will do a significant amount to address the concerns we raised on Committee Stage. While the lead Departments are obviously involved, it will be important for this media commission to address those key issues, including children's safety, which is why we wanted consultation with the Minister for Children, Equality, Disability, Integration and Youth. Senator Cassells mentioned gambling specifically. This will strengthen the legislation. We are grateful to the Minister and her officials for including this.
While I am glad that a reference is being made to gambling in the legislation, which was a major concern for us and for Senator Wall, who is not here but pressed this issue, I have concerns. The Minister might address this in her response. While the Department of Justice has a role relating to gambling, I think the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media has a role too. I tabled amendments Nos. 80 and 81, which relate to gambling and other speculative financial activities. We will come to those later.
Regulation relating to harm needs to be considered. There may be activities which are not criminal offences and which do not breach the law, but they may be damaging. For example, one could consider the way gambling advertisements are targeted, who they are targeted at, and practices which may seek to encourage vulnerable persons to re-enter gambling if they have exited it. Some of those practices have been discussed at length in this House. While the Minister for Justice has a role in respect of illegal gambling, many of the gambling activities we are concerned with are quite legal or even encouraged and in some cases subsidised by the State. The online part of that needs to be carefully examined. I would be concerned if this amendment had the effect of the Minister for Justice being seen as the only way in which we might come at this issue.
I looked at subsection (d) of amendment No. 30, which refers to, "published policies of the Government in respect of any matter referred to in paragraph (a), (b) or (c)." That is why I ask if the Minister might be able to give us assurances. If the Government or Cabinet looked at a related area of policy at the Minister's request, might the commission be able to have regard to that in the regulation of gambling, so that it would not be constrained to solely considering the policies of the Minister for Justice? The Minister for Justice is related to part of it. Some matters are health issues, such as addiction and how it might be addressed. The Department of Health may provide important information and policies on gambling. Will the Minister clarify that subsection (d) provides a wider scope and that we have not put gambling entirely into the remit of one Minister? That would be unfortunate.
I move amendment No. 40:
In page 22, between lines 6 and 7, to insert the following:“(2A) Of the members of the Commission, one or more of them shall be designated by the Minister as the Commissioner(s) with responsibility for Online Safety, to be known as the Online Safety Commissioner(s), who shall oversee the regulatory framework for online safety, including, inter alia, through the development of binding online safety codes that set out how regulated online services ought to deal with harmful online content and conduct on their platforms.”.
I move amendment No. 41:
In page 22, between lines 9 and 10, to insert the following:“(3A) In performing their functions under subsection (3), the Public Appointments Service and the Minister shall seek to ensure that the Commission has an appropriate balance of knowledge of, and expertise in, the following:(a) arts and culture;
(b) data protection and digital empowerment;
(c) online safety and digital regulation; and
(d) human rights and public participation.”
These amendments seek to address two sets of concern. One related to membership of the commission, a set of measures to ensure there would be a diversity in the membership which represented the diversity in society. The other concerns were that there would be appropriate skills and an appropriate balance of those skills among those constituting the commission. We highlighted a third issue of gender equality. I have not pressed forward because I recognise that it is quite a small commission so ensuring representation of the full diversity of society would be a difficult bar. Nonetheless, we have put forward an amendment which is less restrictive than our previous amendments which were a requirement that there be a gender equality measure. It was pointed out that a situation could be created where, for example, there is a temporary gap in the commission or if a recruitment process was under way; that could create issues. Instead we have used more mild language. No. 42 states "Where recommending to the Minister persons for appointment as members of the Commission, the Service shall endeavour to ensure that among the membership of the Commission there is an equitable balance between men and women." No. 42 would make it an endeavour rather than a requirement threshold. That reflects the discussions we had.
No. 43 reflects something I have already highlighted. In the amendments I have put forward throughout the Bill I have tried to underscore and place reminders of the public duty in terms of equality and human rights and the UNCRPD.
No. 41 is quite important. It seeks to ensure that in performing their functions "the Public Appointments Service and the Minister shall seek to ensure that the Commission has an appropriate balance of knowledge of, and expertise in..." specified areas, namely, arts and culture; data protection and digital empowerment; online safety and digital regulation; and human rights and public participation.
As the legislation goes to the Dáil in the autumn, I am conscious that the set of skills I have put forward may not be the best match. However, I want to underscore that point because I know the Bill will undergo further scrutiny and development in the Dáil and it is really important that the right skills and right balance of skills is there in the commission and we do not end up with a narrower set of skills or persons who do not have the specialist information. This was recognised in the climate Act. The previous climate change advisory council had had a preponderance of economists and it was recognised that there should be a balance of skills so there ought to be scientists and others represented as well.
I am conscious that the Minister probably will not be able to accept my set of suggested skills but I urge her and her officials to consider what they think would be the appropriate set of skills and make sure that they are copper-fastened into the recruitment process.
I thank the Senator for amendments Nos. 41 to 43, inclusive. The posts of commissioner and executive chair of Coimisiún na Meán will be vitally important. They will collectively constitute an coimisiún itself and ultimately be responsible for the decisions that it will take. It is important to note at the outset that the commissioners are not simply equivalent to board members. They will be fulfilling executive functions and will be considered employees of an coimisiún. As such, the provisions of employment law apply to these appointments. This is a model adopted from other regulators in the State, such as ComReg and Commission for Regulation of Utilities.
I understand that each of the amendments are based broadly on the provisions of the Irish Human Rights and Equality Act 2014 which relate to the appointment of members of the Irish Human Rights and Equality Commission. However, the more appropriate comparator for the commissioner roles in an coimisiún would be the director rather than the members of IHREC.
On amendment No. 41, as I previously stated on Committee Stage, I do not think it appropriate to set out a non-exhaustive set of knowledge or expertise required for an coimisiún. Matters pertaining to the selection criteria are best addressed within the context of the recruitment process run by the Public Appointments Service. Accordingly, I am not accepting this amendment.
I have previously addressed the point raised in amendment No. 43 during Committee Stage a number of times. As I noted then, the duty set out in section 42 of the Irish Human Rights and Equality Act 2014 is already binding on public bodies, and I do not see the relevance or merit of singling out any single UN convention unless absolutely appropriate to do. Accordingly I am not accepting this amendment.
On amendment No. 42, I did consider amendments proposed on Committee Stage which aimed to achieve a gender balance among commissioners, which is something I fully support in principle. The legal advice my Department received was that providing for the membership of a minimum number of women on Coimisiún na Meán, as envisaged by the proposed amendments, would be contrary to section 8 of the Employment Equality Acts, 1998-2015, as it may lead to discrimination on the grounds of gender. This Act prohibits an employer from discriminating against an employee or prospective employee in relation to access to employment, which includes the recruitment process, and Article 14(1)(a) of directive 2006/54/EC, which provides for the equal treatment of men and women in terms of, among other things, access to employment.
The specialist nature of the commissioner posts, for example the online safety commissioner, is such that each post will be recruited individually, rather than as a part of a panel of commissioners. Accordingly, a requirement in law for a minimum number of women, or indeed men, in commissioner posts would compel the Public Appointments Service, at some point, to advertise a post open only to candidates of a particular gender, depending on the composition of the commission at any one time. This would be contrary to the Employment Equality Acts, 1998 – 2015. Accordingly, I cannot accept amendment No. 42.
Amendment No. 42 does not set the bar as a hard requirement but rather "endeavour to ensure". There are a number of ways that could be addressed that would not require the advertisement of a position solely to men or women. An endeavour might apply in a situation where there might have been a majority of members of the commission who were of one gender that the Public Appointments Service might ensure that there was gender balance in the names put forward for the next position to be filled.It may be as simple as ensuring there is a gender balance or, perhaps, where two or three candidates are put forward, that one of either gender would be put forward for the Minister's consideration.
There are imaginative ways to address this and we need to do so because we have a problem not solely within the membership of boards but also within the senior roles in our Civil Service and wider public service in respect of a gender balance at that level. Proactive measures, which may not need to be exclusionary but rather may be inclusive to ensure there will be that gender balance at the higher levels and positions, are important. I urge that some further imaginative thought be put into how that might be done.
On amendment No. 41, while I acknowledge each role is recruited individually, it is important we set the bar. Sometimes, there is a danger within the Public Appointments Service, PAS, of a generalist approach whereby persons who have simply managed a certain number of people or who have done so at a certain level come in. I accept the Minister will engage the PAS in regard to what the skills will be, but these are very specific skills. The model I am looking for is not simply a board one but one that is similar to, for example, the Climate Change Advisory Council, which is certainly not a generic board but rather a series of expert persons.
I regret the fact the Minister cannot accept amendments Nos. 41 and 42 but I will press them. I accept her point about the former amendment but, until I see the public duty to equality and human rights bearing fruit in every Department, I will keep trying to insert it into all legislation at every possible point until it takes hold. It will do so, I hope, in this new body, which will have an opportunity to get things right from the outset.
I move amendment No. 42:
In page 22, between lines 9 and 10, to insert the following: “(3A) Where recommending to the Minister persons for appointment as members of the Commission, the Service shall endeavour to ensure that among the membership of the Commission there is an equitable balance between men and women.”.
We discussed these amendments extensively on Committee Stage. We will not move any of them, but they speak to a general point about the exclusion of members of a local authority. From the perspective of the Government, we have raised the point that the continued exclusion of local authority members from a range of roles and boards is not acceptable. We have made that point in the context of other legislation but we will not press the amendments in this case.
Amendment No. 56 addresses a matter raised by Senators Malcolm Byrne and Cassells on Committee Stage. Its purpose is to require coimisiún na mean to establish a youth advisory committee as one of its advisory committees.
In the drafting of the amendment, it was considered the age group the committee should represent should be those under 25 years of age including children, and that at least half of its members should be not more than 25 years of age. In this regard, the stated age profile aligns with the categorisation of young people being those persons under 25 years of age under the provisions for content production schemes at section 159F of the Broadcasting Act 2009 as amended by the Bill.
The amendment provides that the youth advisory committee shall include representatives nominated, at the invitation of an coimisiún, by organisations representing children or young people. Finally, the amendment specifies that, in particular, the youth advisory committee shall advise an coimisiún on online safety matters. This is a recognition of the importance of the voice of young people in online safety in particular. They are often at the coalface of new technologies and, unfortunately, of some of the harms that can arise from them.
The matter raised by amendment No. 57 has been dealt with by the Government amendment in this grouping.
I am delighted the Minister has indicated she will accept the suggestion we are putting forward, which we think will be very useful. As those of us who sat on the Oireachtas committee know, some of the most insightful contributions and testimony were provided by the groups of young people who contributed. Moreover, the experience of the Australian eSafety Commissioner is that her engagement with young people through panels such as this has been very useful.
I welcome the fact the Minister's amendment will strengthen what we were proposing. I hope we will establish the committee as quickly as possible and that there will be open engagement. It is going to be about young people shaping the codes that impact on them. As many teachers admitted to us when we engaged with them, they often learn more from their students about issues regarding online safety.
I might make one small observation. We referred to the body as a "youth advisory panel" and I am delighted it is now being described as a "youth advisory committee". Nevertheless, amendment No. 58 was ruled out of order because we were seeking to set up a standing broadcasting committee. The only difference between the panel and the broadcasting committee was that one was called a "committee", which I was told would cause a charge on the Exchequer. While I appreciate that the amendment has been ruled out of order, I point out to the Minister that colleagues in the other House are likely to raise it as an issue.
In any event, I very much welcome amendment No. 56, which will be a positive initiative.
I welcome what Senators Malcolm Byrne and Cassells have put forward and compliment them on it. It is very important and I thank the Minister for indicating she will accept it. As Senator Malcolm Byrne said, in our discussions at committee level, we find ourselves more informed through discussing issues with that younger generation. They are miles ahead of us in regard to technology and what they see every day. We met the Australian commissioner and hers is the country we need to look to for best practice. It was highlighted that these are regular discussions in that country. I am delighted, therefore, to see this committee provided for, which I will support.
Amendment No. 59 addresses a matter raised by Senators Higgins and Ruane on Committee Stage to explicitly require coimisiún na meán to have regard to the effective use of its resources as well as the economic and efficient use of resources in preparing its statement of strategy and work programme. While section 27(1)(c) of the Broadcasting Act 2009, as amended by the Bill, sets out that the executive chairperson of an coimisiún would be accountable to the Committee of Public Accounts for the effectiveness of its operations, I believe this amendment is useful clarification that an coimsiún shall have regard to all three components of the value-for-money framework for the public service, namely, efficiency, effectiveness and economy.
I will be very brief in welcoming the Minister's acceptance of what was a constructive point. The words "effective", "efficient" and "economical" are all doing very different work and bring different considerations to bear. The word "effective" is probably one of the most important. I am really happy that it has been inserted. I thank the Minister for taking that point on board in good faith. What is being done here will strengthen the Bill.
Amendment No. 60 addresses a matter raised by Senators Higgins and Ruane on Committee Stage regarding a requirement for coimisiún na meán, on the direction of the Minister, to provide its statement of strategy to relevant Oireachtas committees. This will allow the strategy statement to multiple Oireachtas committees where, for example, an coimisiún may be fulfilling functions of policy interest to those committees.
Amendments Nos. 61 and 62 address a matter raised by Senators Higgins and Ruane on Committee Stage regarding the co-operation agreements an coimisiún may enter into with bodies within and outside the State. The purpose of these amendments is to require an coimisiún to provide the joint committee with a copy of any co-operation agreements it enters into and publish any such co-operation agreements on a website maintained by it subject to the consent of all parties to the agreement any redactions that may be necessary. I thank the Senators for raising these matters.
I thank the Minister for taking on board. It is appropriate in terms of amendment No. 62 that such agreements would go before the joint committee. I particularly welcome amendment No. 60, which strengthens our proposal in that we had looked to the strategy being laid before a specific committee. Under the Minister's proposal, it may be laid before such committees. Again, it may be the case that it involves the Joint Committee on Tourism, Culture, Arts, Sport and Media, which has done extraordinary work in its pre-legislative scrutiny of this legislation, but it may well be the Joint Committee on Health or another committee that becomes relevant to some of the matters in the Bill. This is a really constructive development that builds on and strengthens our amendments.
Amendment No. 63 relates to the transferring of data to other bodies. It tries to underscore and specifically reference the necessity and proportionality requirement, which is a key principle of the general data protection regulation, GDPR. The GDPR is referenced elsewhere, but with this amendment I am trying to underscore that in the context of the transfer of data to other bodies. Again, I have some general concerns regarding the transfer of data between bodies. The data retention and transfer legislation may not be as robust as it could be. As a result, this is something I am trying to pick up on.
I acknowledge amendment No. 64, which reflects a principle I discussed with the Minister and her officials, namely, the concern that where a person has given personal data to the commission, the commission would make sure that the person was aware of the disclosure. There are two issues involved here. One relates to the safeguards of necessity and proportionality in the transfer of a person's data. The other relates to the fact that a person, having given his or her data to the commission, may not have the expectation that it would be passed to another body so even if his or her consent is not required for that, he or she should at least be informed that this data has been passed to a relevant body. I appreciate that while my first principle was not taken on board, the second has been taken on board by the Government in amendment No. 64.
I welcome amendment No. 68. I would have liked if there had been a hard requirement for a data protection impact assessment. I proposed that on Committee Stage. Amendment No. 68 goes halfway in that direction by giving the Minister discretion to consider whether it is necessary to carry out an assessment of the regulations. Under this proposal, the Minister may carry out a data impact assessment. I believe that it is necessary and that it would be better if we had it as a standard requirement in the Bill. However, I acknowledge that at least the issue of an data protection impact assessment has been strengthened somewhat. However, I still believe that it should be formally set out rather being discretionary to any degree.
Amendment No. 64 and those that are consequential to it, namely, amendments Nos. 65 to 67, inclusive, address a matter raised by Senator Higgins and Ruane on Committee Stage regarding the notification of a person when his or her personal data is disclosed by an coimisiún. Section 33 of the Broadcasting Act 2009, as amended by this Bill, sets out the circumstances in which and the bodies to which an coimisiún may disclose a person's personal data. The purpose of these amendments is to require coimisiún na meán to endeavour to notify a person whose personal data under this section. This duty is qualified by the phrase "in so far as it is practicable to do so" to avoid an coimisiún being derelict in this duty by virtue of a person becoming highly difficult or impossible to contact.
The intention behind amendment No. 63 is sufficiently captured in subsection 2 of section 33 of the Broadcasting Act, as amended by this Bill. Throughout subsection 2, it is specified that the commission shall only disclose personal data where it considers that it is necessary and proportionate for the purposes set out in the various paragraphs of subsection 2. As a result, I am not accepting amendment No. 63.
Amendment No. 68 and the amendments consequential to it, namely, amendments Nos. 69 to 71, inclusive, address a matter raised by Senators Higgins and Ruane on Committee Stage regarding data protection impact assessments. The purpose of these amendments is to require the Minister where they are prescribed by statutory instrument either new bodies to which the commission may disclose personal data or new matters regarding which the commission may disclose personal data to consider where necessary carrying out a data protection impact assessment and if so, to carry out that assessment. It is must be noted that section 84(12) of the Data Protection Act 2018 already requires a Minister proposing a legislative measure relating to the processing of personal data to consult with the Data Protection Commission during the process of preparing the legislative measure in question.
I move amendment No. 73:
In page 42, to delete lines 18 to 23.
Amendment No. 73 seeks to delete the lines in the Bill which would exempt members of the commission, or those contracted by the commission, from having to make a disclosure of conflict of interest where it relates to the granting of a contract of service or a contract of employment. Is this amendment grouped?
This amendment arises in respect of the work of the commission, because there is likely to be some work which will be quite specialised. For example, we know that certain online practices, even the use of recommender systems and so forth, may be required to be regulated. As this is a fast-moving area, there may well be a contract of service where the experts who are hired by the commission to inform it in the regulation of a new practice or a new area of content, may have interests in respect of the designated online providers, or others, who are the subject of that regulation. It would be very important that that would be known.
When looking at this, I am not thinking solely of long-term staff or the general staffing of the commission but of where contracts of service are granted in the specialised areas. It would be very important that it would be known if there is a potential conflict of interest. For example, we do not want those who may have been instrumental in creating a problem to end up getting hired on a contract of service to advise the commission on how that problem should be regulated. That is the kind of scenario I was envisaging. I know that at the general level, the conflict of interest issue might not apply to staff but because the measures in the Bill allow for a contract of service, or even short-term contracts of employment, that is where I would have that concern.
As I set out on Committee Stage, I would be concerned that, as drafted, this amendment would have the unintended consequence of preventing an employee of an coimisiún from seeking to influence any considerations of an coimisiún regarding the contract of that employee. This amendment would seem to prevent employees from representing their interests to an coimisiún, their employer.
This provision in the Bill, as currently drafted, was designed to prevent those very such scenarios from occurring. Accordingly, I do not accept this amendment.
I move amendment No. 74:
In page 48, line 21, to delete “€2 million” and substitute “€1 million”.
Amendment No. 74 looks to change the definition of a "relevant media service provider" as one whose annual sales are greater than €1 million rather than the current provision of €2 million. This is a revised version of a Committee Stage amendment, where I had a threshold of €500,000, which may have been regarded as too low by some, but I believe €1 million is a reasonable threshold. This is me trying to meet halfway in regard to the threshold set out in the Bill, which is €2 million. My original proposal was €500,000 but I think €1 million is a reasonable compromise.
The reason this may be important is that many of the companies which become very large started quite small. We know that sometimes poor practices can be led by smaller companies. We know, for example, some companies, which have particular apps, have attached themselves and have led the way in the bad use and processing of data. If there is a practice that is of concern in an online service provider, the commission is then empowered to act as early as possible before it becomes a widespread practice, so that we do not have a danger where we may have small companies, while they may be independent in terms of their own moneys, providing services to larger companies which are able to lead bad practice. I want to ensure that the regulatory powers of the commission reaches as far as they can. Any company which is looking at sales of €1 million is in a situation where it should be able to take on board regulatory measures from the commission, and should be open to this. Again, this will not require the commission to immediately take steps to regulate these companies but it will empower it to do so.
I thank the Senator for the amendment but the figure of €2 million is derived from the definition of a media business set out in Part 3 A of the Competition Act, as amended, which provides for a framework by which we assess media mergers in the State. For reasons of consistency and proportionality, we should continue to use this figure. I cannot accept the Senator’s amendment.
Amendment No. 75, in the names of Senators Higgins and Ruane, arises out of Committee proceedings. Amendments Nos. 75 to 78, inclusive, are related. Amendment No.76 is a physical alternative to Amendment No. 75. Amendments Nos. 75 to 78, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 75:
In page 49, to delete lines 14 and 15.
We made very constructive progress over the course of the debate on this Bill and there are a number of areas where the Bill has been very much strengthened and improved. However, this is an area which I believe requires greater and further consideration. I am aware that this is a difficult area to address but it needs to be more nuanced than it is currently. I hope there will be opportunities for that to happen over the course of the Bill's journey into the Dáil and that perhaps some of the concerns we have raised may get addressed at that point.
Currently, the Bill has quite a worryingly vague use of the word of "offensive". We discussed this on Committee Stage where I mentioned that "anything which [might] reasonably be regarded as causing harm or offence," could perhaps be interpreted as financial harm or a situation where this could be exploited by those in power such as with a politeness clause, and others that might be used and weaponised against more vulnerable parties, or those who critique those with very large amounts of power.
I say this as someone who has been a proponent of the importance of challenging and regulating hate speech but there is principle involved in addressing hate speech and that protecting the most vulnerable in our society would be done in a very carefully thought through way so that it is not, in fact, exploited or it does not become weaponised against the more vulnerable in society and against marginalised groups. Members will be aware that some of my previous amendments sought to tie it specifically to those who are protected under our equal status legislation.
Amendment No. 75 seeks to delete the phrase in regard to broadcasting anything which might be reasonably deemed to cause harm or offence. I say that again in the context of being quite open to a strengthening of legislation on hate but the phrasing at the moment is too wide. Amendment No. 76, which would be preferred by me, seeks to replace the phrase with a more concrete threshold which states that it should not broadcast anything which may cause harm to a group of persons, or a member of a group, based on any of the grounds referred to in article 21 of the charter. We are looking at persons who are experiencing harm based on their identity, on who they are, and not, for example, harm to financial interests or to one's business interests.We should not have an equivalence between persons who are receiving harm based on who they are and persons who deem that they receive harm based on having an unpopular opinion and so forth.
Amendment No. 77 addresses a real concern over the phrase "undermining the authority of the State." I seek to bring clarity by tying it to the Offences against the State Act. Where the phrase "undermining the authority of the State" appears in the Constitution it has attached those caveats about freedom of expression. It is not a phrase floating on its own. Taking that phrase and placing it here in a decontextualised way is ambiguous. It would be better to tie those measures to things already identified in the Offences against the State Act so that we are tying these constraints to specific statutory concerns, which would be more robust.
The reference to incitement to violence or hatred in section 46J(1)(d) is important. Perhaps it might be useful for section 46J(1)(d) to be strengthened and for section 46J(1)(a) to be narrowed. We will come to something similar at a later point where rights and opinions seem to be given equivalence about which I am also concerned.
I know this is transferring from other legislation. However, in recent years, months and weeks even we have seen that some of that earlier legislation might not actually be effective. The legislation we have at the moment may not be protecting more vulnerable persons but may be used in a way that silences. It tends to be more strongly enforced for those who have the power or potential resources to threaten legal action than for other vulnerable groups in society.
Regarding amendments Nos. 75 and 76, I am still considering this matter in the context of bringing a possible amendment on Dáil Committee Stage. The Senator made some important points regarding the use of the term "harm or offence". My officials are consulting the Broadcasting Authority of Ireland regarding the existing practical operation of this provision. It will be important that any amendment that may be brought forward does not have unintended effects. Accordingly, I do not propose to accept these amendments.
Regarding amendment No. 77, the language in the Bill and extant Broadcasting Act reflects Article 40.6 of the Constitution. Given that the fundamental right to freedom of expression flows from both our Constitution and the EU Charter of Fundamental Rights and European Convention on Human Rights, there is a high bar for any steps that the State may take to limit freedom of expression. As I set out on Committee Stage, while Article 40.6 of the Constitution guarantees freedom of expression, it requires that right to be qualified in certain instances. Accordingly, I cannot accept the amendment.
As I set out on Committee Stage, while I understand the intention of amendment No. 78, I do not think that section 46L(1) of the Broadcasting Act 2009, as inserted by the Bill, needs to be qualified in the manner suggested by the amendment. The language used in the section reflects similar language in the extant Broadcasting Act which has not to date exercised a chilling effect on broadcast journalism. Accordingly, I cannot accept the amendment.
I move amendment No. 76:
In page 49, to delete lines 14 and 15 and substitute the following: “(a) anything that may reasonably be regarded as causing harm to a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter,”.
I move amendment No. 80:
In page 51, between lines 21 and 22, to insert the following: “(2A) A broadcaster shall not broadcast, and a relevant media service provider shall not make available in a catalogue of the relevant service, an advertisement which seeks to promote gambling.”.
Amendments Nos. 80, 81, 93, 94, 109 and 110 all seek to require that online safety codes and media service codes, respectively, would prohibit or restrict advertisements for gambling and cryptocurrency. On Committee Stage, I combined the two issues of gambling and the promotion of speculative financial activities such as cryptocurrency. I believe they are very strongly linked. In recognition of the strong support across the House to have much stronger constraints on advertising and given that the debate on cryptocurrency is one that is evolving, I have put them as separate amendments.
I know the Minister for Justice may introduce provisions in this regard. We need action on gambling and it should not be left to the Minister for Justice. I believe the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media can lead on this because massive profits are being made in the online gambling area. It is also one where we are seeing some of the more dubious practices, which prey on, encourage and nurture gambling addiction. We need to address that at an early stage. Simply looking to the Department of Justice is too narrow. I sit on the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach and it is an issue that has been raised there. These areas are ones where the online space is incredibly important. That is why I have pushed the idea of media service codes and online safety codes in these amendments.
Senator Wall and others in this House have outlined at great length the damage that gambling can do. Previously in the Public Health (Alcohol) Bill we made specific provisions relating to alcohol and addiction. A framework dealing with the issue of addiction and exploitation would also be relevant for gambling.
Advertisements for cryptocurrency are all-pervasive online. We have talked in this House about loot boxes that train children from a young age in gambling practices. The extremely aggressive advertising of stock trading and cryptocurrency across all kinds of social media platforms is a real concern. This is not an issue that is floating out there. It is an issue which in particular exploits times when people are under financial pressure. People lose their entire livelihoods. They gamble away on cryptocurrencies and very quickly they can lose extraordinary amounts of money.
People may have seen articles as recently as in the last couple of weeks. I do not like the use of terms such as "crypto queen" or other glamorised language.One of the first and largest cryptocurrency pyramid schemes, OneCoin, is estimated to have caused up to €4 billion worth of financial loss in that scheme. Extraordinarily, millions of individuals have lost out as a result of that scheme. One of the first people responsible for OneCoin, having aggressively marketed this Ponzi scheme, having told everybody it was the next Bitcoin, having pulling people into it and having caused them to lose their livelihoods, was last seen in Dublin before disappearing off the grid with a large amount of money taken from the scheme. Ireland needs to think very carefully about the issue of cryptocurrency, given that we are a major data centre and given that we have seen the damage done by excessive data mining environmentally. We have also seen the political instability caused in Kyrgyzstan by aggressive cryptocurrency mining. This is not a small or a minor issue. It is one of the main kinds of advertisement that I personally see online. The issue needs to be addressed. We do not need to wait for the Departments of Finance or Justice to address it and the Minister could take the lead on the issue. I believe that gambling and cryptocurrency are health issues and massive issues of public interest. I hope that we can strengthen the Bill in the autumn in the Dáil in respect of both of those issues.
I agree with Senator Higgins in her summation that the pervasiveness of gambling is highlighted, in particular, online and in that sphere. I think the Senator would recognise my passion in respect of that subject matter as well.
Notwithstanding that and my passion for the issue, having worked closely with the Minister of State, Deputy James Browne, I believe that the regulatory framework for tackling the issue is contained in the Gambling Regulation Bill from the Minister of State and the Department of Justice. Senator Malcolm Byrne and I fought to have that reflected in this Bill, by asking that the Minister, her Department and the online safety commissioner reflect Government policy. Ultimately, there will be two commissioners. We do not want one crossing over the other. We want them to work hand in hand. Please God, the office of the gambling commissioner will be established by the end of this year. We hope that the online commissioner, using the statutory powers available to him or her, will work hand in hand with the gambling commissioner. That is what we should be doing rather than confusing the issue. Notwithstanding that I agree with what Senator Higgins has said, that is the proper manner in which to approach the matter.
I agree with Senator Cassells's comments. I raised the fact that I have a problem with amendment No. 81 on Committee Stage. The amendment states "A broadcaster shall not broadcast ... an advertisement which seeks to promote speculative financial activities". We are all familiar with the advertisements saying that the value of a person's investment may go up or down. Banks and other financial institutions regularly offer what could be referred to as speculative financial activities. I do not have a problem with people taking the opportunity to invest in a particular product, which could include stocks or shares, if they so wish, provided that they are aware that the value of their investment may go up or down. There is a broader question here which comes back to discussions we had earlier on media and digital literacy. That is why I believe that by banning such advertisements, in many ways we would be driving a lot more of it into the dark web. I do not want to get into a debate around cryptocurrencies and the underlying technologies. That is why there is a response on the part of central banks, including the European Central Bank, ECB. I do not believe that we should be seeking to ban advertising around financial products. Part of the challenge here is around the questions that we talked about earlier on digital and media literacy. As I have said previously and as Senator Cassells has outlined, what the Minister did with the earlier amendments, by ensuring that Departments co-ordinate their activity and the relevant agencies, makes a lot of sense.
I thank the Senators for their amendments. On the commercial communications for gambling, given that the gambling authority of Ireland to be established by the gambling regulation Bill will issue codes in respect of advertising, including in relation to online gambling, I do not propose to accept amendments Nos. 80, 93 or 109. On the issue of speculative financial activities, I note that the Central Bank of Ireland regulates the advertising of financial activities by financial services firms under its remit. The rules are set out in the consumer protection code published by the Central Bank. Finally, as regards crypto-assets, I note that the EU markets in crypto-assets regulation is currently under negotiation in Brussels and will set out a regulatory framework for those assets. Accordingly, I do not propose to accept amendments Nos. 81, 94 or 110.
I am looking forward with great hope and interest in respect of the legislation that might be brought by the Minister of State, Deputy James Browne. I will certainly engage with him on that. However, me experience in this House means I generally seek to put measures on a train that is already moving, as it were, rather than the one that may be coming down the line. In general, that is why I will always seek to have measures inserted where I think they are relevant. If that is then superseded by better future legislation or policies, so be it. That is why I am pressing the issue. On cryptocurrencies, I am concerned by the use of the phrase "crypto-assets". They are not assets. They do not constitute assets. According to the phrase used about the scheme that I mentioned previously, "they are selling thin air". It is not thin air; it is hot air, in that it is quite energy intensive. It is costing the planet. I am extremely concerned about the matter. With absolute respect, I am concerned and nervous in respect of the discussions taking place in the EU at the moment. They are being led by Commissioner McGuinness, who I believe has made a poor decision in relation to the taxonomy on gas and nuclear energy. That is one of the reasons Ireland really needs to look at the issue. I am concerned that Ireland will end up being a soft actor in terms of cryptocurrency and part of a legitimisation exercise in respect of something which is both massively socially damaging and extraordinarily environmentally damaging.
I want to mark the card right now. I believe that cryptocurrencies are bad and a problem. We should ban them. I will be seeking to ban them at every possible opportunity in every relevant item of legislation. I know that there may be a separate provision on digital currencies where they are linked to something. I am concerned about the use of the term "crypto-assets". The cryptocurrency industry is an extremely aggressive and precarious industry. Quite frankly, at a point where we are facing ecological collapse, the last thing we can afford to do is to allow a whole brand new form of speculative, made-up risk be created to layer on top of the significant real risks that we are facing environmentally, in terms of food and global conflict. Why would we add a brand new stupid problem that we do not need to add, right on top of that? It is absolutely absurd. It is exploitative. Just to be clear, in their aggressive advertisement it is not the small players who spend their €5,000 in savings on cryptocurrency who are the main supporters of the industry. They are the human shields of the industry. They will be the reason we will be told that we need to bail the industry out when it starts collapsing. I just really hate cryptocurrencies. I have to get that on the record.
I move amendment No. 81:
In page 51, between lines 21 and 22, to insert the following: “(2A) A broadcaster shall not broadcast, and a relevant media service provider shall not make available in a catalogue of the relevant service, an advertisement which seeks to promote speculative financial activities which pose a risk to a person, including the trading of cryptocurrencies.”.
I move amendment No. 82:
In page 51, to delete lines 26 to 32 and substitute the following: “(4) (a) Nothing in subsection (2)(a) prevents a broadcaster from broadcasting, or a relevant media service provider from making available, party political programmes provided that an unfair preference is not given to any political party—(i) by a broadcaster, in the allocation of time for such programmes, or(b) For the purposes of paragraph (a) and of section 46L(3), a ‘party political programme’ is a party political broadcast or a similar programme during which uncontested time is provided to a political party and the broadcaster (or relevant media service provider, as the case may be) does not exercise editorial control over the content.
(ii) by a relevant media service provider, in the positioning of such programmes in a catalogue of the relevant service.
(c) The standards and practices provided for in a media service code made under section 46N to ensure that broadcasters and relevant 10 media service providers comply with section 46L(3) shall apply also to ensure compliance with paragraph (a).”.
I am filling in for my colleague, Senator Sherlock. I welcome the paragraph the Minister has inserted but we have a question about the definition of "party political broadcast". We are seeking the inclusion of this further provision on that. I would welcome a comment from the Minister.
I see some merit in the Labour Party's amendment No. 82. I note that it makes reference to section 46N, which relates to the rules that apply in these instances. This is an important area and one in which I have a particular interest.
We all know we live in a constitutional democracy and there are statutory obligations as well as constitutional obligations. However, all signposts and roads lead in the one direction, that the broadcaster's overriding obligation is one of fairness, objectivity and impartiality. That is an imposition and it is not for bargaining. That is imposed on all broadcasters.
I believe it is appropriate that individuals and all political parties do not meddle in the editorial coverage of, for example, a general election. This should rest solely with the broadcaster, once it is done in a fair and seen to be fair way in the relevant applicable media service provider. It has to be transparent. However, this does not mean that it is immune from assessment. We live in a democracy and, at times, we have had tensions between the different separations of powers in the past. As this monumental legislative measure goes through the Houses, I assume it will also be tested over the years and will be helped in its interpretation by a new set jurisprudence. Jurisprudence in the past was not afraid to stand up for fairness, much as we are reluctant to do so because in a democracy we must give the broadcaster a wide berth and wide discretion. However, broadcasters must uphold the democratic values enshrined in the Constitution. There is no mention of the Constitution in this Bill. There never is in legislation because there is a presumption of constitutionality. In the back of everyone's mind are the people who ultimately decide, in the form of Bunreacht na hÉireann.
The democratic values enshrined in the Constitution and which are applicable in this and other sections include the right to equal treatment in the political process. I accept the right to equal treatment is not an absolute right. It may be restricted, but only restricted once it is done in a fair, impartial and objectively justifiable way. The McKenna v. An Taoiseach (No. 2) case concerned the extent to which the allocation by the Dáil of £500,000 to the Government was to be used for a publicity campaign to promote a "Yes" vote in a referendum. That was deemed to represent an unlawful expenditure of public funds to promote one side of the argument.
The late Chief Justice, Mr. Liam Hamilton, had regard, and we as legislators should have regard, and it is nice that we can say that we listen to the people across the River Liffey, to the equality which is fundamental in the democratic nature of the State. However, the Chief Justice had particular regard to the unique role of referenda in the democratic process. This goes to the heart of what my Labour Party colleagues want in a fair way. It is covered in the legislation, but one can never go far enough in these matters. We should not leave it to the Constitution but tie it down as much as possible in statute law. The Chief Justice said:
The role of the People in amending the Constitution cannot be overemphasized. It is solely their prerogative to amend any provision thereof by way of variation, addition or repeal or to refuse to amend. The decision is theirs and theirs alone. Having regard to the importance of the Constitution as the fundamental law of the State and the crucial role of the People in the adoption and enactment thereof, any amendment thereof must be in accordance with the constitutional process and no interference with that process can be permitted because, as stated by Walsh J. in Crotty v. An Taoiseachit is the people themselves who are the guardians of the Constitution".
Protected under the rubric of personal rights in the Constitution, and mirrored in this statutory provision we are hoping to enact, is the freedom to hold and communicate political opinion. That is at the heart of this module in this very substantive legislative measure. Article 40.6.1° guarantees freedom of expression and association. There have been a number of cases concerned with fairness of political broadcasting by reason of the inclusion of some political players and not others. I commend all those in the past on doing that. It was RTÉ then, but broadcasters and applicable relevant service providers are more widespread now. People and broadcasters should never be afraid to take interpretations, and I commend the long list of people who were plaintiffs in the past. Sometimes they were not victorious, for example, the Kivlehan v. RTÉ case in 2016. Ms Justice Marie Baker in the High Court ruled against the plaintiff, but did not order costs. She said he engaged at the high-level aspects of the Constitution. The political players and who are included is very important and I believe that is the motivation behind the Labour Party Senators' concerns.
The circumstances in each of the cases that have come before the courts have been very different, but the underpinning reason of the court in each of these cases has been the question of whether the court was considering the exercise of broadcasting discretion in a manner which trespassed constitutionally on other people's rights if the discretion went too far and could not be justified. Thus in the famous Coughlan case, the court was moved to conclude that the constitutional principles of equality and fairness applicable to broadcasting were breached in that instance, when the coverage given preferred one side over the other. Although in that case the court was concerned with a referendum, it is clear from the reasoning of the court both in Coughlan and the earlier case of McKenna that its conclusions apply equally where there is an unequal approach which prefers one party over another in a general election. Interestingly, in the Coughlan v. the Broadcasting Complaints Commission case, the late Mr. Justice Paul Carney said that the respondent, as a national broadcasting service, is subject to the Constitution and to statute which require it to uphold the democratic values enshrined in the Constitution and a constitutionally fair procedure.
I will conclude by referring to an interesting extract that was published in Judge Gerard Hogan's book, The Origins of the Irish Constitution, 1928-1941. The more things change, the more things remain the same. He reproduced in his tome, which is a very respected book, a transcript of a radio broadcast by Éamon de Valera in April 1937. It is now preserved in the National Archives of Ireland under the Department of the Taoiseach. It is filed safely there.It expresses the principles underpinning the Constitution clearly and cogently. Éamon de Valera said:
The Constitution is frankly based on the democratic principle. That principle runs right through the draft Constitution published today. By the votes of the people the President of the State will be chosen, by them the House of Representatives will be elected, and on the nomination of that House the responsible Government will be appointed. By the people only, through the Referendum, can the National Constitution be amended. The sovereignty resides in the people as their inalienable and indefeasible right. [De Valera added that] Every elector who casts his [or her] vote in favour of the adoption of this Constitution will in effect be subscribing his name to the proposition that in this country the people and the people alone are the masters.
I say to all the broadcasters that they are the servants. The people are the masters. The public representatives here today are the servants. We enjoy the operation of the presumption of the constitutionality of the statute law, but if it ever crosses, trespasses or entrenches onto constitutional grounds, we live in a vibrant democracy and people may exercise their right in the future. In time to come, we might see this in the decades of jurisprudence that will follow this very substantive and highly significant legislation. I commend the Labour Party Senators on being so forensic in this particular amendment, which goes to the heart of what is fair. Sometimes, we cannot make it fair in one go, but the Act allows for broadcasters to have a number of broadcasts to make it fair and to level the pitch again. I will leave it at that for now. Thank you for your indulgence, a Leas-Chathaoirligh.
I thank the Senator for his amendment. As I set out on Committee Stage, I acknowledge that the use of the term "party political programme" rather than "party political broadcast", may give rise to some interpretative confusion if it is not clarified. In the Bill as initiated, the term "party political programme" was used instead of "party political broadcast" to ensure that the relevant sections covered both broadcasting services and video-on-demand services. Following the Committee Stage debate on the matter, I asked my officials to examine the issue further and to consult the Broadcasting Authority of Ireland. This question will be subject to further examination over the summer with a view to bringing a Committee Stage amendment to the Bill in the Dáil if it is determined that one is required. Accordingly, I cannot accept this amendment today.
I move amendment No. 83:
In page 51, after line 39, to insert the following: “(7) For the purposes of this section, political purposes mean—(a) (i)to promote or oppose, directly or indirectly, the interests of apolitical party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament,(ii) to present, directly or indirectly, the policies or a particular policy of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament,(b) to promote or oppose, directly or indirectly, the election of a candidate at a Dáil, Seanad or European election or to solicit votes for or against a candidate or to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate with regard to the policy or policies of a political party or a political group or of another candidate at the election or otherwise;
(iii) to present, directly or indirectly, the comments of a political party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament with regard to the policy or policies of another political party, political group, a member of either House of the Oireachtas, representative in the European Parliament or candidate at an election or referendum or otherwise, or
(iv) to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome at a Dáil, Seanad, European or local election, or referendum, such campaign relating to an election for which the polling day has been set by Government or a referendum for which the Commission has published a referendum notice,
(c) otherwise to influence the outcome of the election or a referendum or campaign referred to in paragraph (a)(iv).”.
I move amendment No. 84:
In page 52, between lines 12 and 13, to insert the following: “(ba) in relation to broadcasters only—(i) that the broadcast programme material, taken as a whole—(I) adequately reflects the participation, and(ii) that, in relation to broadcast news and current affairs programmes, taken as a whole, there is equal participation by men and women,
(II) is responsive to the interests, of members of all groups (defined by reference to gender, sexual orientation, disability, colour and socio-economic status) within the community,
(iii) that, in relation to the amount of broadcasting time allocated to broadcasting of music content—(I) at least 50 per cent of such time is reserved for the broadcast of musical compositions that are composed or performed by women, and
(II) at least 30 per cent of such time is reserved for the broadcast of musical compositions that are composed or performed by persons living on the island of Ireland or that otherwise relate to some distinguishing element of the culture of the island of Ireland.”.
We tabled this amendment following a Bill with which the Minister may be familiar that my colleague introduced this week on the amount of time allocated to females in broadcasting. As we all know, it is a very serious imbalance, and the amendment attempts to address that. We will try to progress the Bill my colleague has introduced but, in the meantime, we are seeking that this amendment would be made.
I have a couple of amendments in this section. Amendments Nos. 86 and 87 deal with similar concerns but are possibly more serious in terms of the problems with the language as it is construed. I refer to the ambiguity around addressing what is or is not offensive. Amendment No. 87 addresses specific concerns. The provision at the moment gives undue weighting to the question of a person's convictions. The reference is “with due sensitivity to the convictions or feelings of the audience,". I seek to replace that with the phrase "with due sensitivity to the subject matter and the audience,", although I do not object to the term "feelings of the audience" being included. If somebody has a religious conviction that somebody else should not exist, that is not something that the authority or media services should have due regard to. It is suggested that the audience must be protected from anything that is harmful or offensive to anybody's convictions or feelings. That is very important. The term "convictions" is quite wide. Does it include political convictions? For example, if a political party gets a majority vote in the State, does a broadcaster say that it represents the majority of people's convictions and it will not do anything that challenges that? If it is a religion, does a broadcaster become religious in that regard? We know that there are perspectives where people have convictions on entire other genders and how they should be treated. We have seen attitudes in terms of how women have been treated in the past in the media.
There is a whole piece here. We need to look to the question of sensitivity, but as it is framed at the moment: "with due sensitivity to the convictions or feelings of the audience," creates parity between somebody who is personally affected by a matter and somebody who has a view on a matter. Somebody who has an opinion is given the same weighting, regardless of whether the opinion is rooted in any kind of fact, as somebody who is personally affected and vulnerable. That is why I have tried to bring in language that does not limit in any way the freedom of the media, but ensures that they can bring a nuanced approach so as to have due sensitivity to the subject matter and whether it is inflammatory or may have consequences, affect or create distress or distressing situations for individuals that may affect their freedom to participate in society. Sensitivity to the subject matter and sensitivity to the audience is a better frame than the idea of allowing a person's sensitivity to convictions or feelings. How are those to be measured? Will there be opinion polls in the case of an audience? How will the audience of an online provider be measured?. This is where it becomes very important in terms of media service providers because in the case of radio stations or broadcasters, they tend to be catering to a very wide audience, but we may well have online media providers that are catering to a very particular audience.They may be able to say that their audience wants many very angry messages that reinforce the audience's convictions. We know there are media outlets online that specialise in mining a seam of hatred, exploitation or fear and continue to feed it. Those may well be the convictions of their audience. It is almost like a mandate for an echo chamber. It is, therefore, really important that this be addressed. I know it is an issue at which the Minister is looking and that it will be considered in the Dáil. The Minister might not be able to take on board the measure I put forward in respect of this but it is an area where, to be honest, simply transposing the old law and old language will not work. It is not actually working in terms of media generally at the moment and that language will especially not work in terms of online media. Again, I urge the Minister to look at that.
Amendment No. 88 is a very practical amendment that seeks to ensure that, for example, provisions related to sexual conduct would not ban the inclusion of educational materials on sexual health and relationships. It is to ensure that, for example, an online provider that is providing useful information or material for individuals in terms of sexual health, consent, relationships and so forth does not inadvertently fall under this remit or, indeed, that the commission is not bothered with needless complaints that suggest it might fall under that remit. Again, this is trying to ensure that the commission does not have to deal unnecessarily with measures that are not really a matter of concern.
I thank Senator Sherlock for bringing forward amendment No. 84 today. I acknowledge the work she is doing in this area, including the recent publication of a Bill last week. I will address the first point of the amendment setting out that broadcast programmes should reflect the participation and be responsive to the interests of all groups. I have sought to address this issue as broadly as possible through amendment No. 11, which requires Coimisiún na Meán to bear in mind the participation and representation of the people of the island of Ireland with regard to its policies towards broadcasting and on-demand media services. I am absolutely committed to supporting diversity, inclusion and the full and effective participation of women across sectors for which my Department is responsible. I agree with the intention underpinning amendment No. 84 regarding the equal participation of men and women on news and current affairs shows. If we are to use media service codes as the mechanism to achieve broadly equal participation, however, we may need to provide more detail within the Bill to guide an coimisiún in making codes. Provision may need to be made to specify what happens, for example, when there are an uneven number of guests. I have asked my officials to explore this matter further over the summer recess.
As to the final point of amendment No. 84 relating to airplay quotas for women, artists and composers, I would like to continue to examine the issue further. I would caution, as I did on Committee Stage, that quotas based on the residence or citizenship of an artist are not permissible under EU law. Airplay quotas based on gender may be permissible under EU law, but without a residence criterion, simply introducing gender-based quotas may lead to unintended effects. Again, I have asked my officials to examine this issue further during the summer recess.
I want to finish discussing amendment No. 84 by thanking Senator Sherlock for highlighting Why Not Her? for publishing the recent gender disparity data report 2022. It is evident from the data that while there has been improvement across a number of radio stations, more needs to be done to promote and safeguard women's voices on air.
I thank the Senator for the other amendments. As I stated on Committee Stage, I cannot accept amendment No. 86. The principles and policies set out in section 46N of the Broadcasting Act, as amended, must reflect the need that audiences are protected from harmful or offensive content being broadcast as this is an important consideration in making media service codes. I understand the point the Senator is making in looking at the issue more generally in the context of amendments Nos. 75 and 76, which concern a proposal by the Senators to amend similar wording regarding the duties of broadcasters and providers of video-on-demand services.
As I stated on Committee Stage, I am advised that the proposed wording of amendment No. 87 seems to broadly achieve the same effect as the wording currently in the Bill. Therefore, I reject the amendment on that basis.
Having further considered the matter, I am advised that the provision in amendment No. 88 could not be interpreted as to preclude the provision of programme material related to sexual conduct for educational purposes, particularly on important topics such as consent, sexual health and relationships. Accordingly, I am rejecting the amendment.
Amendments Nos. 89 and 90 address an issue raised by a number of Senators to explicitly provide for specific matters concerning commercial communications, which Coimisiún na Meán may regulate through media service codes, including in relation to infant and follow-on formula. I commend the quality of the debate on this issue during Committee Stage and assure Senators that I have given this matter due consideration.
As Senators are aware, the Bill as published conferred broad powers on an coimisiún to regulate commercial communications on video-on-demand and broadcasting services through media service codes. In particular, section 46N(2)(d) of the Broadcasting Act, as amended, by the Bill, as initiated, sets out that an coimisiún may make media service codes, which may provide for standards and practices to ensure:
(d) that commercial communications— (i) protect the interests of the audience, and
(ii) in particular, where they relate to matters likely to be of direct or indirect interest to children, protect the interests of children having particular regard to the general public health interests of children.
Subsection (5) of section 46N of the Act further specifies that an coimisiún may prohibit commercial communications "relating to foods or beverages considered by the Commission to be the subject of public concern in respect of the general public health interests of children, in particular those foods or beverages which contain fat, trans-fatty acids, salts or sugars."
Amendment No. 89 is intended to clarify the language in subsection (5) of section 46N by providing that an coimisiún may not only prohibit but may "restrict, in accordance with law" the commercial communications referenced. Amendment No. 90 amends subsection (5) of section 46N by providing for a specific reference to infant and follow-on formula. It should be emphasised that an coimisiún would already be provided with this authority through the general powers that will be invested in it to make media service codes in respect of advertising. The language in section 46N(5) is based on the language used in section 42(4) of the extant Broadcasting Act 2009, which provides for the power of the Broadcasting Authority of Ireland to make broadcasting codes. As I set out on Committee Stage, those broadcasting codes will remain in force until amended or replaced by media service codes.
The current broadcasting code relating to commercial communications, the general commercial communications code states “Commercial communications for infant formula for use by infants during the first 6 months of life are prohibited.” This reflects EU law which sets out a number of rules regarding how infant and follow-on formula may or may not be advertised or otherwise marketed, and which is primarily enforced in Ireland by the Food Safety Authority of Ireland. Accordingly, my amendments primarily clarify already inherent powers of an coimisiún as regards infant and follow-on formula. Following an extensive Committee Stage debate in the Seanad and the very good points raised by Senators, I was convinced of the merits of making this power explicit.
Finally, the issues raised by amendment No. 91 are addressed by the Government's amendments in this grouping.
I thank the Minister for engaging on this important issue. People from right across Ireland have raised this issue with me. Senators Sherlock, Pauline O'Reilly and other Senators also have raised this matter with the Minister. I am grateful for this amendment as it sets the ground for us to move forward. The amendment is important given the significant public health implications and the poor practices employed when marketing infant milk, follow-on milk and growing-up or toddler milk. I also welcome that as this matter has been addressed in a couple of sections, it does not relate solely to the media codes but also to the potential for online harm.
The Bill, as it stands, ensures provision may be made for prohibition and amendment No. 89 seeks to insert the provision “or restrict, in accordance with law”. As the legislation is in itself law, I seek clarity that an coimisiún has been provided here with the direct power to prohibit and that a new law will not be required for it to be able to prohibit and restrict, in accordance with law. I seek clarity because I do not want us to move away from the direct power of prohibition mentioned here. I acknowledge the coimisiún in any case will seek public health advice and so forth in respect of this issue. I thank the Minister for taking on board the argument that we made and that she shares our intent to ensure this area is properly addressed. I would not want us to insert inadvertently an additional obstacle and perhaps such concerns can be teased out in the Dáil. Again, this law can provide for this and the commission will, as is stated in this section, consider general public health interests and consult the Department of Health in that regard.
I thank the Minister, Deputy Catherine Martin, and her staff for engaging with me on this issue. As the Minister knows, I am very passionate about this issue. A number of years ago, my Green Party colleagues in Galway and I tried to get the local council's budget to set aside funding for advertisements on local radio to promote breastfeeding because in the media, breastfeeding cannot compete with formula milk as the State does not have the funding to allow it compete with companies that make money.
I am glad the Minister has taken on board that this is a public health issue in the same way as is the consumption of salt and sugars. I know from speaking to the departmental officials that they took that on board as well. This amendment is an important step today. Nothing will take away the fact that we need to provide support to encourage breastfeeding and that means more lactation consultants, which has been provided for by the Minister, Deputy Stephen Donnelly. However, the State must provide more support when it comes to organisations such as the La Leche League of Ireland, with which I have been involved for a long time, Cuidiú and Friends of Breastfeeding. In particular, I thank the Baby Feeding Law Group Ireland for the tremendous work that it has done on this issue.
The law group has always been very accommodating with briefings and providing legal expertise. Finally, I thank the Minister for bringing forward to her amendment and reiterate that today is a very important day for all of these groups.
On the query raised by Senator Higgins, following advice from the Office of the Attorney General, the language will not only prohibit but may also restrict and it is in line with the commission's general powers.
I move amendment No. 91:
In page 53, line 22, to delete “salts or sugars” and substitute the following: “salts, sugars or milk-based formulae (infant milks, follow-on milks, growing-up milks and toddler milks) aimed at infants and young children up to 36 months”.
I move amendment No. 92:
In page 53, between lines 22 and 23, to insert the following: “(5A) Provision made for the purpose referred to in subsection (2)(d)(i) may prohibit the inclusion in programmes of commercial communications or content relating to conversion therapy, or any commercial communications or content which seek to promote practices or beliefs with the aim of invalidating or compromising a person’s sexual orientation or gender identity.”.
I echo the points made by Senator Pauline O'Reilly and thank the Baby Feeding Law Group Ireland. Sometimes a stigma is created when anyone seeks to promote breastfeeding but it is worth remembering that sadly, breastfeeding in this country is very much the underdog, as fewer than 6% of babies are breastfed, compared with an average of 40% in other jurisdictions. Choice is fundamental but in most countries it is 50:50 for breastfeeding and using formula milk whereas in Ireland over 90% of babies will be fed formula within six months. That fact is important to remember because sometimes the framing can suggest otherwise. I thank all of the advocates who have worked on this issue. They have worked as underdogs in this area and with far less resources than some major commercial actors in the sector. I also thank the Minister for listening to those voices.
Amendments Nos. 92 and 107 concern conversion therapy, which is an issue that was raised on Committee Stage. We have addressed the issue of conversion therapy in two different parts of this Bill.We cannot be complacent about it. We have seen aggressive practices in respect of pressure placed on LGBT individuals. It is an issue I feel strongly about, which is why I was happy to support and co-sponsor legislation brought forward during the term of the previous Oireachtas by Senator Warfield in this regard. I recall that when I was growing up, if someone was gay, he or she may well have ended up in electroshock therapy, and that was not a million years ago. It was something experienced by colleagues and friends I knew. While conversion therapy is not as physical as that, it can be just as cruel, damaging and deeply harmful and corrosive to a person in terms of his or her identify, sense of self and ability to live a proper and confident life.
Sadly, at a period when there are very aggressive and well-resourced actors that seek to divide and conquer between LGBT groups and others, this is why the online space is so important. There are international actors that may be very well resourced in advertising and promoting conversion therapy. I do not have to look solely across to the United States, where we know the damage conversion therapy has done, but also within Europe, where anti-LGBT zones have been declared in certain EU states. In that context, it is important we be clear that in Ireland, we do not regard this as an acceptable service to be advertised or as communication fit to be promoted. I have used the phrase "commercial communications" but I believe the formulation I had on Committee Stage was better because this is not solely about commercial content with a goal of selling. In some cases, we want to ensure these practices cannot be commercially advertised, even if they are not seeking to make money but rather to use commercial systems to promote themselves.
Amendment No. 107 seeks to address this issue within the online safety codes because these practices are fundamentally unsafe. It refers to any content that seeks “to promote practices or beliefs which seek to compromise or invalidate a person’s sexual orientation or gender identity, including the advertisement or promotion of conversion therapy in respect of a person’s sexual orientation or gender identity". I acknowledge this area was examined in the past but I am frustrated because we brought forward legislation during the previous Oireachtas and were assured Government legislation was coming but it has not arrived. If we do not continue to move forward in Ireland, we will leave this open to those who would seek to move us backwards. I hope the Minister will consider these amendments.
As I said on Committee Stage, conversion therapy is an abhorrent practice, which is why the programme for Government includes a commitment to legislate to ban its practice. As Senators will be aware, my colleague the Minister, Deputy O'Gorman, is leading this initiative.
I understand how distressing it can be for LGBTI+ people to encounter advertisements for conversion therapy. Following the commitment I gave on Committee Stage to considering the matter, my officials have been engaging with officials in the Department of Children, Equality, Disability, Integration and Youth to ensure that both the practice and the advertisement of conversion therapy will be prohibited when legislation is brought forward. It is vital any legislation we bring forward be sufficiently robust to achieve its objective and, in particular, that we arrive at a legal definition of conversion therapy that is sufficient to capture the practice we all agree should be banned. An incomplete or insufficient definition of conversion therapy carries with it two risks. First, a definition may not be sufficiently expansive to capture completely all the incidences of what is a harmful practice to many people. Second, it may be drafted such that it may be construed incorrectly and may inadvertently capture, or be claimed or seen to capture, forms of gender-affirming care. For those reasons, I cannot accept the amendments.
Nevertheless, I commit to ensuring the advertisement of conversion therapy will be prohibited when the practice itself is banned to ensure that any prohibitions and bans brought forward will be fully aligned. I have asked my officials to continue to engage with officials in the Department of Children, Equality, Disability, Integration and Youth on this matter.
I appreciate the Minister's reasoning and, therefore, I will not press the amendments at this point. Even so, and perhaps this will be picked up in the Dáil, it is important there be a clear timeline in that regard. Having brought forward proposals on this a number of years ago, we need to have a clear timeline for this and I welcome the fact the Minister will engage with the Minister, Deputy O'Gorman, in that regard. Perhaps by the time this Bill enters its final Stages in the autumn, we will, I hope, see legislation in respect of conversion therapy on the legislative agenda of the Oireachtas, which would be useful and good.
I welcome also the fact the Minister has acknowledged there will be specific provisions in respect of her Department. While we might ban the practice in this State, it is important, given there may be other parts of the EU in which the practice becomes available and is promoted, that we also ban its advertisement in order that persons will not be forced to travel in respect of conversion therapy and that is where the online space and advertising will be important. I thank the Minister for indicating she will press for such measures to be included in any such legislation.
I move amendment No. 93:
In page 53, between lines 22 and 23, to insert the following: “(5A) Provision made for the purpose referred to in subsection (2)(d)(i) may prohibit or restrict the inclusion in advertising or programmes of advertisements or commercial communications relating to the promotion of gambling.”.
I move amendment No. 94:
In page 53, between lines 22 and 23, to insert the following: “(5A) Provision made for the purpose referred to in subsection (2)(d)(i) may prohibit or restrict the inclusion in advertising or programmes of advertisements or commercial communications relating to the promotion of speculative financial activities likely to pose a significant financial risk to an individual, including the promotion of cryptocurrency trading.”.
The amendment seeks to ensure there will be a minimum period for the public consultation on media service rules or codes. While I expect the commission to operate best practice, I would like a minimum period to be set in law to ensure there will be proper public consultation. Sometimes if there is just a two-week period of consultation, for example, and if that falls over a Christmas period or the month of August, there is not the same level of public engagement that might otherwise be got.That is why I have looked for a minimum of 30 days.
As we discussed on Committee Stage, I do not see the rationale for setting a time period in legislation for public consultation on a media service code or rule. Given the principles underpinning the establishment of coimisiún na meán, I do not anticipate an coimisiún running a time-constrained public consultation process to deliberately avoid scrutiny. Accordingly, I cannot accept the amendment.
Amendment No. 97 addresses a matter raised by Senators Higgins and Ruane on Committee Stage regarding inserting a time period within which an coimisiún would be required to notify a complainant when his or her complaint was referred to a broadcaster or provider of a video on-demand service or was dismissed. The purpose of this amendment is to require coimisiún na meán to notify a complainant within 30 days of any referral of his or her complaint to a broadcaster or provider of a video on-demand service or of the dismissal of that complaint.
I welcome amendment No. 97. It relates to the earlier amendment that was around strengthening the information channel and exchange between an individual and the commission, for example, through the commission informing individuals when their information had been passed on. This is an amendment that seeks to ensure people will get a timely response, even if it is the case that their complaint is adjudicated to not have merit and is dismissed, so they are not in a limbo situation of not knowing whether their complaint is moving forward. It is just good practice. I thank the Minister for taking that on board. I welcome the amendment.
I move amendment No. 98:
In page 78, to delete lines 37 to 40, and in page 79, to delete lines 1 to 3 and substitute the following: “139D.(1) In this Part, ‘age-inappropriate online content’ includes online content that either—(a) is likely to be unsuitable for children (either generally or below a particular age), having regard to their capabilities, their development, and their rights and interests, in particular content consisting of—(i) pornography, or(b) consists of online advertisements or commercial communications which are age-inappropriate, including those advertising—
(ii) realistic representations of, or of the effects of, gross or gratuitous violence or acts of cruelty, or(i) high salt or fat foods,
(iii) weapons, or
I will speak to this group of amendments. I had intended to table another amendment in this group, but it was a narrow one put forward in the context of amendment No. 112 and commercial communications. I had wanted a general provision in respect of commercial communications and young people, which is one I would have pressed further.
In effect, these amendments seek to address the targeting of dangerous content at minors. I am concerned by the gaps in legislation highlighted by very high-profile cases, for example, in the UK and other jurisdictions, where attacks were linked to the targeting of advertisements for knives and other weapons at teenagers. I am trying to do two things here. I am trying to ensure the issue of targeting of advertisements for weapons is addressed, especially when such advertising is targeted at young people. It is not clear whether that will come under harmful content in the current draft of the Bill. There is also a wider issue I hope might be addressed during the Dáil debate, which is around age-inappropriate content in general.
The measures outlined in amendment No. 98 are not exclusionary. I gave examples of age-inappropriate online content in the amendment that might be included in the Bill, but I do not limit it to that. Age-inappropriate online content could include online advertisements or commercial communications advertising those same kinds of factors, such as high-salt or high-fat foods or alcohol. We have the media service codes and online harm codes but I am trying to address the issue of age-inappropriate online content in particular. The Bill outlines provisions relating to pornography and the "representations of, or of the effects of, gross or gratuitous violence" but, weirdly, advertisements for weapons may not constitute or may not, in fact, show the effects of "gross or gratuitous violence or acts of cruelty", even though they may facilitate such acts.
There is the issue of weapons in general but there are also the later mechanisms where there are provisions within online safety. I pressed some amendments on Committee Stage relating to the provision whereby there may be prohibition of certain kinds of content, so I was not able to re-table them. Emergency measures can be taken in respect of material that may constitute online harm. Similar mechanisms, including some of the mechanisms that will be made available to the commission in respect of material that constitutes online harm, may also be usefully made available to the commission in respect of age-inappropriate content, for example, requiring that such content be removed pending a period of investigation. Those amendments have not followed through but I will signal that as an area where some of the mechanisms around harmful content could be used in respect of age-inappropriate content. That is possibly a way we could practically strengthen protection of younger people in the Bill.
The Minister will also be aware, because I mentioned it on every Stage, of the frustration we have that, in general, we need to look to a prohibition. She will be aware a prohibition of targeted online advertisements, or commercial communications that are targeted at persons who are minors, where there is, for example, the profiling of minors, was a key debate in the digital services directive discussions. The Minister's argument is this is a data protection or data processing issue but where that profiling has been attached, or where we have advertisements that are specifically targeted at persons who are minors, we may need to look to a general prohibition. That does not mean materials cannot be advertised but it means there would not be targeted advertising that seeks out a particular audience that is younger.
Amendment No. 122 addresses this issue in the context of commercial communications that seek to promote weapons or the sale of weapons. A general provision, such as that we already inserted into the Data Protection Act 2018, should be considered. Amendments to that Act could also be considered. It is worth flagging because we have had general political agreement on this issue for more than four years but somehow have not moved forward to actually regulate regarding it.
I am sorry these amendments are a little tangled. It is because there is the general issue of how we tackle age-inappropriate content and the specific issue of weapons as something that should be captured by the current language around violence but might not be. I ask the Minister to address those two strands, whether she can accept these amendments or not.
I have addressed the intention of amendment No. 98 as regards commercial communications in respect of food through amendment No. 105, which will be discussed later.
As regards the references to gambling, alcohol and weapons, I note that the gambling regulation Bill will regulate the advertisement of gambling, that alcohol advertising is regulated under the Public Health (Alcohol) Act, and that the Bill as published already provides for an coimisiún to create online safety codes to ensure "that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children". I do not propose to accept the amendment.
Regarding amendment No. 112, I note once again the Bill as initiated provides broad authority to an coimisiún to regulate commercial communications through online safety codes. Accordingly, I do not propose to accept this amendment.
This is a matter that should and could get taken up later. I will not dwell further on it. While I accept the Minister's point that some of the provisions, including those relating to alcohol, gambling and high-salt and high-fat foods, have been addressed somewhat, we could strengthen the provisions in respect of weapons.We also need to strengthen the tools the commission will use and the steps it will take around age-appropriate content.
This amendment seeks to include a specific reference to the UN Convention on the Rights of Persons with Disabilities. I am aware it is the Minister's preference not to name individual conventions and specific charters but we have ratified this one and we have made a commitment as a State. I believe that we must start embedding it. Again, this is just being consistent with ensuring that we seek to embed it. It is because it is a new commitment that I am seeking to have it embedded in legislation wherever possible.
Amendment No. 99 would amend section 139E of the Broadcasting Act as amended by the Bill, which relates to the process for designating online services for regulation and the matters which an coimisiún shall have regard to when deciding to make a designation. As I stated on Committee Stage, I do not see the relevance of inserting a reference to an individual UN convention in this context and accordingly I cannot accept the amendment.
I do not intend to speak at any length on amendments Nos. 100 and 125 on the basis that the purpose of Report Stage is to report on Committee Stage, and not simply to repeat the arguments of the previous Stage of the Bill. I believe that brevity is a virtue.
I acknowledge the extensive discussions we have had with the Minister's officials on this but, on amendment No. 125 in particular, I believe it will have to be the case with this legislation that we keep it under constant review. Fears remain about social media companies not taking some of the measures within this legislation seriously. We have a lot to learn from the Australian e-safety commissioner. We fully expect legislation around the implementation of the EU's Digital Services Act in due course. If it comes during the time of this Oireachtas we may be revisiting some of these issues. The key will be the extent to which there is co-operation between the tech companies and the media commission, and the very welcome online safety commissioner.
We had a respectful debate on this matter on Committee Stage. As I said then, we both agree that an coimisiún must be conferred with robust and proportionate powers of investigation and compliance in order to discharge its functions effectively. This is particularly important when we are considering compliance with online safety codes addressing harmful online content. As I said on Committee Stage, I respect the intention of the Senator's amendment, but my advice remains the same. I cannot accept the amendments for the reasons we discussed on Committee Stage.
I move amendment No. 102:
In page 82, between lines 12 and 13, to insert the following:“(e) that service providers introduce robust measures to ensure a minimum age verification of account holders of 15 years old.”.
I will speak to amendment No. 102. I also spoke to it when we spoke on the section in the previous debate. This amendment seeks to ensure that service providers will introduce robust measures to ensure a minimum age verification of account holders of 15 years of age. We met with various companies during the pre-legislative scrutiny and so on. The companies have varying minimum age requirements for accounts but in reality, and we all know the facts, there are children as young as ten and 11 years of age who hold social media accounts. They have gotten around the verification processes the companies have. We need to bring in robust measures and set a minimum age across all social media companies and hold companies accountable for the verification method they use in order to make sure we do not have young children on social media in this regard. A significant part of this Bill is about child safety, and the best way of protecting our younger children is to not have them on some of these platforms. This is an opportunity to make the companies accountable for putting in the robust measures that are needed to make sure children do not get around their various security measures.
Amendment No. 102 focuses on the question of young people and children's access. My amendment No. 128 seeks to put greater pressure and an onus on the content provider. I spoke a little bit to this in the previous section. I was not sure if I had put it in but I realise that I have.
This is a really practical proposal. One of the powers is around the content limitation notice whereby the commission can request that certain content be limited or removed, or that access be disabled. This is a very important provision with regard to harmful online content. I urge that my suggestion might be considered in Dáil Éireann.
There may be materials that do not reach the threshold of being harmful online content but which do reach a threshold of age-inappropriate content. I have sought to bring in a definition but the Minister may well bring in a better definition or expand her own definition. There is a mechanism for content limitation that could be used for harmful online content and we propose that a similar mechanism could be available in the case of age-inappropriate content whereby the commission would be able to issue a notice requiring a provider to restrict access to content by persons who have attained the age of 18. For example, one may say that the material that is very widely available should not be available for persons under the age of 18 because it is age-inappropriate. Even though the material does not reach the threshold of being harmful online content, the fact is that it would reach the age-inappropriate threshold but perhaps on a site that is very widely accessed and with no suitable constraints as to screening for age. In a way it is complementary in that sense. It is not saying it would apply in the context of access to everything online; it would apply for certain content that is age-inappropriate. The commission would be able to require a provider to put in place measures that would restrict access to that content to persons who are over the age of 18. This could be done in the same quite fast and effective way as the content limitation notice. That might be a very good tool. It does not prohibit the development of codes or practices, or further work with an online service provider. If, for example, a website contains content that is technically legal and does not reach the online harmful content threshold, but which is bad for 14-year-olds to be looking at, it would allow us to put a requirement on the online provider to put in place some form of measure to discourage availability and access to those under the age of 18. Persons may well change. Young people will still probably access it but it would be a harm limitation measure to put in that requirement. Perhaps the Minister will consider this.It would be a practical measure.
As regards amendment No. 102, it is important to acknowledge that there is a very real issue with young children accessing online services that were not designed with them in mind. It is an issue that I am particularly aware of, both as a parent of young children and as the chair of the National Advisory Council for Online Safety, which recently released a comprehensive report on children's online safety. In May, the European Commission launched a new European strategy for a Better Internet for Kids. This strategy is built upon three pillars focused on child protection in the online environment, digital empowerment and active participation. Under the child protection pillar, there is a strong focus on providing age-appropriate online experiences, including through age verification and age-appropriate design. In this regard, the commission commits to facilitating a comprehensive code of conduct on age-appropriate design by 2024 using the provisions of the Digital Services Act, which provides that such codes of conduct may be co-regulatory instruments. The commission has indicated that the code could provide for age verification for accessing certain online content.
In order to facilitate age verification, the commission has committed to work with member states and EU standardisation to strengthen effective age-verification methods. I will be asking an coimisiún to look at this issue as a priority, particularly through engaging on the Better Internet for Kids strategy, to identify potential options and solutions to dealing with this complex issue.
As regards amendment No. 128, as I said on Committee Stage, the content limitation notice provisions in the Bill apply to harmful online content and not age-inappropriate online content so as to limit the potential involvement of the an coimisiún in matters regarding individual pieces of content to only that content which is expressly deemed harmful under the Bill. I cannot accept either of the amendments.
I also speak as a parent whose eldest child is ten and as someone who is very fearful about what children are able to do. It is extremely important, which is why I wanted to put this down again to ensure this is implemented as soon as possible. Based on what the Minister has said, I will withdraw amendment No. 102.
I move amendment No. 104:
In page 82, between lines 12 and 13, to insert the following:"(2A) Provision made for the purpose referred to in subsection (2)(d) may prohibit the inclusion in programmes of commercial communications relating to foods or beverages including alcohol products considered by the Commission to be the subject of public concern in respect of the general public health interests of children.".
I thank the Minister and her Department for their work on this Bill. It is a massive and complex piece of legislation, and there have been many amendments submitted by Senators. They have worked very hard. I hope they can rest and recuperate over the recess. I also thank the Minister for her consideration of many of the amendments tabled on Committee Stage and her production of amendments that satisfy people's concerns regarding some of the issues raised.
I am very pleased that there are Government amendments that extend the language around the public health interest of children into the section of the legislation dealing with the creation of online safety codes. I am also delighted that an coimisiún will be empowered to prohibit or restrict content or advertising relating to food and beverages harmful to children's health. This is crucial
I tabled this amendment as a means of clarifying whether alcohol is included in the Government amendments to this section. The briefing document provided by the Department refers to "foods or beverages considered to be the subject of public concern in respect of the general public health interest of children". It seems obvious that a literal interpretation of this language includes alcohol products, the public health risks relating to which are well known if insufficiently understood. Out of an abundance of caution, however, I just wanted to confirm that this is the case. If so, I will happily withdraw my amendment.
I want to come in on the issue of infant formula because the Minister has taken on board my request to have it included here. It is important to point out that amendment No. 105 is particularly strong on that because it states it is a matter of public concern and a public health matter. I thank the Minister for that. It is certainly being very well received by advocacy groups. I know that amendment No. 103 from the Labour Party group was not being moved. I know the Labour Party group was coming from the best place but I repeat what I said on Committee Stage, which is that formula is not aimed at children, it is aimed at adults and that is why it is important that the Minister has not included it.
All the members of the joint committee, including Senators Malcolm Byrne, Carrigy and Cassells, have put a massive amount of work into this Bill. Not all of us can put in that amount of work because we are members of so many different committees but it is really commendable and show the level of work that is being carried out. The fact that the Minister has brought forward so many Government amendments and taken on board all of the suggestions is a credit to her, her officials and those who sit on the committee.
Amendment 105 and its consequential amendments Nos. 114 and 115 address an issue raised by a number of Senators to explicitly provide for specific matters concerning commercial communications that coimisiún na meán may regulate through online safety codes. I commend the quality of the debate on this issue on Committee Stage and assure Senators that I have given the matter due consideration. The amendments I have tabled explicitly provide coimisiún na meán with the power to prohibit or restrict through online safety codes commercial communications relating to foods or beverages considered by the commission to be the subject of public concern in respect of the general public health interests of children, in particular infant formula, follow-on formula or foods or beverages that contain fat, trans-fatty acids, salts or sugars.
It is important to note that an coimisiún would already be provided with the general power under the Bill as initiated to regulate advertising of such matters through online service codes. This is contained in section 139K(2)(d) of the Broadcasting Act, as amended by the Bill, which states that online safety codes may make provision with a view to ensuring "that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children".
I also note the amendment No. 105 is based on the language set out in section 46N, subsection (5) of the Broadcasting Act, as amended by the Bill, which relates to media service codes. This is to ensure that the language used as regards commercial communications is consistent between media service codes and online safety codes.
As regards amendment No. 105, it should be recognised that it does not directly prohibit or restrict commercial communications relating to any type of food or beverage. That will fundamentally be a decision that an coimisiún may take through the making of an online safety code following consultation, particularly with the relevant public health bodies, who will be best placed to advice an coimisiún on the relevant public health law and advice. Amendment No. 105 addresses the points raised via amendments Nos. 101 and 103.
On amendment 104, I would note once again the Bill as initiated provides broad authority to an coimisiún to regulate commercial communications through online safety codes. On Committee Stage, I also noted that the advertisement of alcohol is primarily being addressed through the Public Health (Alcohol) Act, which contains strong measures to limit the exposure of children to advertising.
Regarding Senator Black's question, amendment No. 105 provides that "an online safety code may prohibit or restrict, in accordance with law, the inclusion in programmes or user-generated content of commercial communications relating to foods or beverages considered by the Commission to be the subject of public concern in respect of the general public health interests of children". Alcohol would probably be considered a matter of public concern in respect of the general public health interests of children.
I hope we will see it coming into effect and that the phrase "in accordance with the law" will not constrain it. I particularly welcome this amendment because it is bringing those same provisions from the media service codes into the online safety codes measure, which is really positive.It is a positive, significant step forward, because it addresses these issues not simply as media regulation issues but as safety issues. This is a particularly strong measure to move the Bill forward and ensure that we have online safety codes to address issues which are a threat to public health and the health of children. I welcome the decision to mirror the provisions of the media service code in the online safety code section. I hope we will see action to progress this. None of us can fully set the commission's agenda but I hope it will embrace the powers given to it under this section and that we will see action on online safety codes and these matters as soon as possible.
I move amendment No. 106:
In page 82, between lines 39 and 40, to insert the following: “(4A) Without prejudice to subsection (2) an online safety code may prohibit the targeting at minors of commercial communications.”.
I will not speak at length because I have already spoken on this. I was mistaken about the groupings. I spoke earlier about how, since 2018, we have theoretically had something on the books to state we should not target minors with commercial communications. That needs to come into effect as soon as possible. I feel strongly about this matter. My amendment states, "an online safety code may prohibit the targeting at minors of commercial communications." I believe it should and that we should have stronger measures, with a full, blanket prohibition.
Amendment No. 106 appears to be a reference to section 30 of the Data Protection Act 2018 regarding direct marketing profiling and microtargeting. The commencement of that section of the Act is a matter for the Minister for Justice.
We have been told there is an issue with the commencement of the Act because of the definition of companies. The policy was accepted by the Seanad and the Minister but there is an issue with the wording of the section. That is why I have suggested this mechanism, which allows for the prohibition of the targeting of minors with commercial communications through online safety codes, as a way to achieve the policy point agreed when debating the Data Protection Act, in a way that will not present similar technical problems with its commencement. I am trying to ensure a policy point which had cross-party agreement will progress. This is an opportunity to do that. I will ask others to press this issue in the Dáil. I believe action on this is overdue. If the Government's preference is to address it by amending and then commencing the relevant section of the Data Protection Act, that should be done, but if it is not being done, the policy point still stands and should be progressed.
I move amendment No. 109:
In page 82, between lines 39 and 40, to insert the following: “(4A) Without prejudice to subsection (2), an online safety code may prohibit content or commercial communications relating to the promotion of gambling.”.
I move amendment No. 110:
In page 82, between lines 39 and 40, to insert the following: “(4A) Without prejudice to subsection (2), an online safety code may prohibit content or commercial communications relating to the promotion of speculative financial activities likely to pose a significant financial risk to an individual, including the promotion of cryptocurrency trading.”.
I move amendment No. 112:
In page 82, between lines 39 and 40, to insert the following: “(4A) Without prejudice to subsection (2) an online safety code may prohibit the targeting at minors of content or commercial communications which seek to promote weapons or the sale of weapons.”.
I move amendment No. 116:
In page 84, between lines 14 and 15, to insert the following: “(5A) Services defined under subsection (5) shall not be deemed to be designated online services until such date as set by the Minister following the transposition into Irish law of the European Digital Services Act.”.
In many areas, I have sought to strengthen the provisions of the Bill, but this addresses an area where I believe the Bill may be overreaching. I refer specifically to private messaging and online cloud storage services, which I do not believe constitute audiovisual content as envisaged in the directive. Those areas more properly belong to the digital services directive. There has been much discussion and consideration of the digital services directive, which has only now become an EU directive. The Minister has indicated her expectation that there will be legislation to transpose and give effect to the EU digital services directive in Irish law. It is premature to include those measures and provisions in this legislation on the audiovisual sector when they will be addressed in the digital services legislation more properly and in a more nuanced way. This relates to private messages and individual private cloud storage services, such as the storage of individual private videos and photographs.
My amendment does not exclude those areas but states, "Services defined under subsection (5) shall not be deemed to be designated online services until such date as set by the Minister following the transposition into Irish law of the European Digital Services Act." Even though they are both fruit, apples and oranges are slightly different. The same tools that are appropriate to apply to online content service providers envisaged in this Act are not necessarily the appropriate tools for private messaging between individuals and families or the private storage of photographs, videos and so on. The Bill has a restriction, stating that some of the powers shall only be exercised where there is potentially a criminal offence. The fact that there is only one restriction indicates that all the other provisions set out in the Act may well apply to those two forms of online service, which I think are more properly addressed through the EU Digital Services Act.
I know the argument has always been that the architecture for the new media commission is likely to be the architecture used to deal with the provisions of the Digital Services Act.I urge that it not begin to deal with these two areas until Ireland has properly ratified it. There is a lot of nuance in the Digital Services Act around what is appropriate with regard to backdoor access to information. There are a lot of specific measures within that Act that I hope will set out useful guides on how cloud storage and personal messaging services might be appropriately regulated. I urge the Minister to consider this amendment. It would be a way of putting a brake on the matter, especially since this Bill is likely to overlap with the European Digital Services Act and its transposition into Irish law. I do not see the harm in delaying the activation of those two areas. The commission will have more than enough work to do in the other areas of online service that are appropriate. This is just a case of trying to get ducks in a row.
The Online Safety and Media Regulation Bill and the Digital Services Act, DSA, are complementary pieces of legislation. One of the key drivers of the Bill is the implementation of the revised audiovisual media services directive, AMSD, into Irish law. The implementation of the directive in respect of online services, specifically video-sharing platform services, is provided for under the regulatory framework for online safety in this Bill. In this regard, the AMSD is explicitly recognised by the DSA as a distinct and complementary law to the proposed regulation. In relation to the regulation of other online services, the Bill provides for a regulatory framework for online safety that is designed to be adaptable and responsive to changes in Irish and EU law. It is clear that further legislation, in addition to this Bill, will be necessary to ensure appropriate alignment of our regulatory systems with the proposed regulation, for both coimisiún na meán and other regulators.
I note that the European Parliament held its final vote approving the DSA last Tuesday, 5 July. This paves the way for formal adoption by the Council in September of this year. Ireland will have until 1 January 2024 to ensure that provisions of the DSA are provided for and supported by Irish law where necessary. Of course, the obligations on very large online platforms and very large online search engines, which will be regulated by the European Commission, will apply earlier - four months after they have been designated as such by the Commission. The Government has already decided that coimisiún na meán, which is to be established through this Bill, will act as the primary regulator or digital services co-ordinator, DSC, under the DSA. The Government made this decision in light of the clear synergies between the objectives and approaches of coimisiún na meán and the DSC, including taking a systemic approach to dealing with online safety and platform regulation and similar resourcing needs and expertise for implementation and enforcement.
As I said stated on Committee Stage, in establishing an coimisiún and setting out a regulatory framework for online safety and a robust and fair enforcement and investigation mechanism, this Bill is establishing the scaffolding and structures to support future and forthcoming legislation, including the Digital Services Act. In this regard, the Bill will assist in the implementation of the regulation and not hinder it. Accordingly, I do not accept this amendment. Having listened to the Senator's contribution, it may be worth pointing out that private messaging services are not covered by the DSA.
There is all the more reason for concern if we do not have clear guidance because the audiovisual directive does not deal with private messaging services. At one point it was envisaged that the Digital Services Act would deal with such services. If it does not, I worry that we will end up leading the way if we are in a position where interpersonal messaging services are regulated under this Act without clear EU guidance. I would be all the more intent on pressing this amendment in that context. I appreciate the engagement from the Minister. There is an intersection between these areas but I am concerned that there is a reach beyond the envisaged provisions of the audiovisual directive. In that context, I will press the amendment.
Amendments Nos. 118 to 123, inclusive, are related and may be discussed together. Before I bring in the Minister, I note that we are due to adjourn four hours after we started, which was at 3.36 p.m. We are now two seconds from 7.36 p.m. I need a proposal from the Acting Leader, Senator Pauline O'Reilly, in order to continue.