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Seanad Éireann debate -
Wednesday, 25 May 2022

Vol. 285 No. 8

Online Safety and Media Regulation Bill 2022: Committee Stage (Resumed)

SECTION 9
Debate resumed on amendment No. 103:
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 breast milk substitutes.”.
(Senator Alice-Mary Higgins)

I thank the Minister for coming to the House for another round of debate.

Amendment No. 123, which is in the grouping under discussion, aims to broaden the scope of the provision that the coimisiún would effectively ban the marketing of salts and sugars by adding infant milk formula. We are asking that this amendment would apply to all children and not just those who have digital access. There is an inconsistency because the provision we are seeking to amend recognises that there is a harm in the marketing of fats, trans fats, salts and sugars, but there is a failure to recognise that there is a harm in the very aggressive marketing of infant milk formula. I referred on the previous occasion to the fact that there has been much research into this, the most recent coming in the form of a report published by the WHO and UNICEF earlier this year. That report refers to formula milk companies using manipulative marketing tactics that exploit parents anxieties and aspirations by purporting to be a trusted friend and adviser. It also refers to formula milk companies distorting science and medicine to legitimise their claims and push their products. The report argues that these companies are making false and incomplete scientific claims as to the health benefits of their products and that formula milk marketing undermines parents' confidence in breastfeeding. As I said previously, anybody who has a newborn, especially a first child, knows all about the anxiety of trying to feed a baby.

On the last occasion, Senator Lombard asked whether it would matter if the Minister were to accept this amendment. We believe that it would matter because the research suggests that the choices of families are being undermined by aggressive marketing tactics. We can also point to countries like Norway where there have been positive changes in breastfeeding rates. The key issue here is the choices families make. This is about not inflicting a viewpoint on any family around how they want to feed their child. It is about helping families who have decided they want to breastfeed their babies and to allow them to do that without being aggressively targeted. Maternity health data from the Department of Health shows that in 2020 some 62% of babies were breast fed at birth but that fell to 58.5% upon leaving hospital. We know that within six months the rate falls to approximately 15%.

I want to respond to some of the other points Senator Lombard made. He talked about the other supports that need to be put in place. He is absolutely right with regard to lactation consultants and peer-to-peer support. Interestingly, the day he spoke marked one year to the day that the Government announced funding for 24 new lactation consultants to work in communities throughout the country.

We put in a Commencement matter last week and the Department of Health confirmed that none of those lactation consultants has even been recruited yet, let alone begun working in the community. The full complement of 10.5 lactation consultants announced in 2020 has yet to be appointed. I say this to the Minister as a member of the Cabinet. While making this argument about marketing tactics and how to improve breastfeeding rates, we must also look at those other issues. Commitments have been made and they have not been followed through on.

As a last point on this issue, I am conscious there was correspondence from the Minister's office to the Baby Feeding Law Group Ireland about these amendments. As we see it, it effectively seeks to hide behind the regulation of the quality of the product itself as opposed to addressing head-on the issues of the marketing of the product as well as saying this is a Department of Health issue. If the Minister's Department believes in the importance of outlawing the marketing of fats and sugars in the public health interests of children, I do not see why it would not include outlawing the marketing of infant formula to babies up to the age of 36 months. It is interesting because, to the question I posed last week about the lactation consultants, we got a reply back from the Department of Health about regulating the marketing. That Department hides behind the EU regulations governing the content and quality of the product itself and not the marketing. That is simply not good enough.

We ask that the Minister consider the amendments we are putting forward. We believe they are reasonable and that they would have an impact. My final word on it is this is about giving public health messaging a fighting chance. In the face of enormous money from companies whose only interest is profit, that messaging does not stand a chance.

I thank the Senator. Before I call the next speaker, it is my great pleasure to welcome a distinguished former Member of this House, one who was very popular. I welcome former Senator Richmond, now Deputy Richmond, to the Gallery. It is great to have him back here. Accompanying him are his friend Mr. Jamie Mahon from Leopardstown and his family. I welcome them also. It is good to have them all here. I know from the reaction of colleagues that I echo the sentiments of everyone here.

I call Senator Higgins.

I want to follow up on something. I think Senator Sherlock mentioned it. There is a little bit of a red herring at play in some of the responses we have been having in this debate with this reference to the EU regulations. Regulation (EU) 2016/127, which supplements Regulation (EU) No 609/2013, relates to the compositional and information requirements for information on infant formula and follow-on formula. That regulation specifically relates to the product and how it is composed, such as what the acceptable level of pesticide is. That was one of the debating points when the regulation was being debated, because apparently there is an acceptable level of pesticide. It deals also with other information requirements having to do with packaging. It is absolutely not related to the area in question, namely, online promotion, marketing and commercial activity around breast milk substitutes in all their forms. We must be clear we do not have a red herring thrown in here. Even if it was an EU directive, it would not have prohibited us from having appropriate standards in many areas. We see many countries in Europe are often ahead of each other when it comes to health and safety standards. Certainly, it in no way constrains us from regulating here. I worry this debate would send a signal to an incoming commission that it was constrained from regulating or, indeed, prohibiting breast milk substitutes in whichever form. It is important that we be clear on that.

It is important to focus on the relevant piece of international guidance, that is, the WHO code. It has been there since the 1980s and has a number of very specific provisions the WHO highlighted as being not applied and not respected. Again, this is not simply around the content but also the content delivery. Some of the provisions in the WHO code are really clear. They state things about not seeking direct contact with pregnant women. They mention not having commercial communications presented as information. Some of the things we know about are directly in breach of the WHO standards. I refer to the baby clubs and the online chat with an expert mum who is employed by a company promoting a commercial product. There are also the advertising campaigns people are encouraged to enter before they even give birth and where they then must give permission for follow-up emails to come in week by week encouraging them to engage.

We need to be clear that this is not an opinion. It is not about the choice issue that everybody agrees with. The question is about what is getting promoted and what the impacts are. The WHO has been clear to the point that it has stated that it believes that if there is not regulation of the advertisement or promotion of breast milk substitutes, then states are breaching the Convention on the Rights of the Child. We have in the Bill a provision that mentions high-fat and salty foods as something with a direct effect on children. We know breast milk substitutes, and certainly their promotion, has an impact on children.

On the argument this is providing some kind of service, we must be clear, as Senator Sherlock outlined, that we absolutely need greater supports, not just in the form of lactation consultants but also midwives. The latter group needs to be better supported and resourced within our health system in general. Many other supports are needed there, including longer follow-on times for those who might need that. There are many supports that should and could be offered, including, as I mentioned, something available in the North of Ireland that we do not have here, namely, a public breast milk bank. That does not get promoted as an option for those who cannot breastfeed because it makes nobody any money. What it does is support women who need support at that time.

There are many public health measures we should be doing better but the core point is that does not argue against this regulation because they should not have to compete with a huge commercial advertising budget. Marketing happens for a reason. Companies do not commercially promote and advertise for no reason. They do it because it increases sales. It literally has a direct effect. Internationally, about 10% of global sales, about $6 billion, is spent on promoting breast milk substitutes and formula milk. That is equivalent to the entire budget of the WHO. The WHO and, indeed, our own health service should not be up against that level of competition over who can reach people with those messages and who can give those supports. That is key. I wanted to bring in the WHO aspect because we were focusing a lot on Ireland because we have such extraordinarily low levels of breastfeeding. Only 6% of women are breastfeeding to six months exclusively.

I will finish on the international responsibility because it is important. This is not just about what we do here and how we give supports and things. This is around the message we send internationally. The Lancet estimated 800,000 infant deaths could have been avoided internationally if the WHO's code had been respected and applied with respect to formula milk.

This is an industry which uses a lot of very inappropriate practices. It can create situations where people use water that is contaminated. Its advertising has very serious consequences. Precisely because Ireland is one of the world's largest manufacturers of formula milk it is important that we get it right. It being such a big industry in Ireland is not a reason for us not to regulate it but to regulate it and outline very clear constraints and, where necessary, prohibitions around how it is advertised and promoted. Ireland exports one third of its formula milk to China where breastfeeding levels have halved in the last ten years. There is a global health responsibility on us too. We are a country that could send a signal that we recognise that this is a product which is sometimes needed and should be available for those who need it but it is not a product where profit maximisation and commercial promotion at all costs is appropriate. This is the chance for us to send that signal. It must be reflected in the Bill. There have to be some amendments that send that clear signal and put addressing that issue clearly on the agenda. We cannot simply leave it to the discretion or potential discretion of a commission in the future.

Amendment No. 124 seeks to insert "or alcohol" into the section dealing with potentially harmful products so that the commission may limit commercial communications in the public health interests of children. I thank Alcohol Action Ireland for its diligent work in this area and its support in drafting this amendment. The regulatory impact analysis for the Bill stated that alcohol marketing is dealt with under the Public Health (Alcohol) Act 2018. However, this is not the case. That Act does little to protect children in the media realm. The Minister has the chance to remedy that in this ground-breaking legislation.

Section 14 of the Public Health (Alcohol) Act 2018 is quite narrow on advertising. It prohibits the advertising of alcohol in certain public spaces only. It does not relate to a large amount of advertising. It contains restrictions on the content of alcohol advertising. Furthermore the content of the legislation is far from being enacted and that is my concern. We need joined-up thinking on this, which means that regulations governing public spaces, conventional media and the digital sphere are coherent and consistent. I believe this Bill would be an excellent place to achieve that. The amendment reflects the recommendations in the report on the pre-legislative scrutiny by the Joint Committee on Tourism, Culture, Arts, Sport and Media which included a ban on the advertising of alcohol to children. That should be uncontentious. It is a way to combat the increasing budgets of alcohol producers that saturate our media and endanger children's health.

On 10 May the World Health Organization published a report which highlighted glaring gaps in regulation of alcohol marketing across borders. Young people and heavy drinkers are the major targets. The report highlights the increasing use of sophisticated online marketing techniques for alcohol and the need for more effective regulation. It shows that young people and heavy drinkers are increasingly targeted by alcohol adverting often to the determent of their health. The WHO noted that "Reducing the harm from alcohol – by regulating cross-border alcohol marketing, advertising and promotion is the first report from WHO to detail the full extent of the way that alcohol is today being marketed".

I work in the field of addiction when I have my other hat on. I see the impact in particular on parents of young people who have alcohol problems. We have to face the reality. Three people today will die from an alcohol-related issue. We have a really unhealthy relationship with alcohol in Ireland. This is a really important amendment that reflects the recommendation in the pre-legislative scrutiny report. I hope the Minister will consider it because I believe it is extremely important.

I thank the Minister and her staff for their engagement with me on the issue of formula and breastfeeding. I hope there is recognition that when the Bill includes sugar and salt it must be broadened to other public health matters. I will not go over old ground because I spoke extensively on the impact of advertising on breastfeeding rates in this country and said that it is no surprise that we have a large export industry that is reliant on formula milk.

Senator Higgins mentioned the large quantities of formula being exported from Ireland one way or another, even to be made in other countries. Fundamentally it comes from Ireland. I do not think that those things are coincidental when we look at the lack of regulation around the advertising of formula. There is no level playing field here but that is not really the issue. It is not the case that if we had equal amounts of advertisements for breastfeeding and formula milk we would be fine: no, we would not. What has been clearly pointed out by the WHO is that advertising of formula has a public health impact. That is why it needs to be regulated and, I argue, should not be advertised at all. We should ensure that the product is available and those who need support in order to use different products have that support and that they have that choice and are supported. However, that is not what these companies do when they are advertising. They are there to make money and to have that share of the market moved from breastfeeding into something that creates profit for them and we can never, as a nation, compete.

I wanted to come back in because I heard the comments from Senator Lombard last time around the importance of support for those who are breastfeeding. That is not what this is about at all. I have been involved in breastfeeding support through Cuidiú and the La Leche League. I have spoke at an Association of Lactation Consultants in Ireland, ALCI, conference and at a conference of the Friends of Breastfeeding. I know the work that those who are volunteering do. They do it because there are no proper supports in this country and professional support through lactation consultants. I am delighted that under this Government we have funding for 24 new lactation consultants but they need to be put in place and we need to go far beyond that.

However, that is not what we are talking about today. Even if we have everything else in place, what do we think is going to happen? Are we to have more and more spending by these large companies to combat and counteract it and get their share of the market? We need to ensure that does not happen because those are the kinds of insidious tactics that are used. I have outlined previously what I think is a great concern for online advertising because it is in the times when one is most vulnerable, the quiet moments in one's own home with one's tiny baby when one is Googling, that one finds something that hits one in the face as a solution when it may not be.

I do not think the Bill can achieve everything that we want to achieve. I hope that everyone would recognise that. It is about enabling the possibility of advertising regulations and that would ultimately have to come from the Department of Health. This would open the door to that. I also pointed out that I would amend some of the amendments.

It is not just about marketing to babies and children; it is also about marketing to their parents in this particular instance. That is possibly different from sugar and salt. It should be taken into account.

I know the Bill is not going to achieve everything. I am realistic about that. However, we also need to then look beyond, and it is the Department of Health I would be looking at in this regard. We also must consider the fact that the World Health Organization guidelines are not being implemented fully across the board, and I have studied this, in many European countries. That has to be addressed.

I will conclude with that as I do not want to go back over old ground. Those are the important things to put on the record. I will not say it was disingenuous but it was straying into other fields to say that if we put all the money in the world into breastfeeding supports, it is not going to change the fact that people are making massive profits. They are doing it in large part through advertising. That is ultimately where they are making that money.

What this Bill and this discussion have done is highlighted the lack of consultants and highlighted the fact that we, as the Government, have made those promises, announced the positions and they have not been put in place. Collectively, the Government has to take responsibility for that and to make sure both that people are recruited to fill those positions and that the numbers are increased. We need to put further investment into the Department of Health and into an advertising campaign to promote breastfeeding.

I fully support Senator Black, and I am a member of the Oireachtas committee. We put forward in our recommendations a proposal to ban the advertising of alcohol. There was a group of students in the House today and they are the young people of 13 and 14 years of age who are on social media. They are being bombarded with this advertising and it is assumed to be cool to be drinking. Another issue which is not part of our recommendations but is one that I have been made aware of is the issue of vaping. I believe it will turn into a serious issue. There are people of 13 and 14 years of age now purchasing these vapes and they are going to be addicted to something that is as bad as cigarettes, yet it is not properly regulated. That is something to be examined.

I support the comments, particularly those of Senator Black, regarding the ban on alcohol advertising online. At a minimum, there should be a watershed of 9 p.m. or 10 p.m. for any advertisement on the main media channels or even on radio. However, I strongly believe we must fill the positions that were committed to, and put further investment into employing more lactation consultants and into an advertising campaign on the national and local media promoting breastfeeding.

I thank the Senators for their proposed amendments. Amendments Nos. 123 and 125 would specifically insert references to substitutes for breast milk or milk-based formulae into section 46N(5). This would make explicit the power of coimisiún na meán to prohibit commercial communications relating to infant and follow-on formulae in the context of media service codes. I recognise the intention of the amendments and understand the concerns the Senators have regarding the advertisement of infant and follow-on formulae. The public health advice is clear that there is considerable evidence to demonstrate the importance of breastfeeding for the health of both mothers and infants. Data from the World Health Organization indicate that Ireland has lower breastfeeding rates than the global and European average.

Members will be aware that the information requirements and advertising standards in respect of formula for an infant, meaning a child under 12 months, and follow-on formula are currently set out in EU regulations. These regulations set out detailed composition and labelling requirements for infant and follow-on formulae intended for use by infants in good health and recognise the importance of the World Health Organization international code of marketing breastmilk substitutes. The Food Safety Authority of Ireland is responsible for implementing these information requirements, while policy responsibility rests with the Department of Health. Under the extant Broadcasting Act 2009, the Broadcasting Authority of Ireland, BAI, has issued the general commercial communications code, which provides that commercial communications for infant and follow-on formulae shall comply with all relevant Irish and European legislation and with rules, regulations and codes of practice issued from time to time by a relevant public health body. This is appropriate, as the BAI ultimately must rely on public health advice issued by the appropriate bodies as regards public health matters.

Following the enactment of this Bill, it will be an coimisiún that will be tasked with making media service codes. The general commercial communications code will continue in force until superseded by any code that an coimisiún will make. I can see the merits in setting out explicitly in legislation that an coimisiún may prohibit commercial communications relating to infant or follow-on formulae through media service codes, subject to considering the appropriate health advice on the matter. As the marketing of infant formulae is the policy responsibility of the Minister for Health, I will ask my officials to consult officials in the Department of Health in the first instance. While I do not accept these amendments today, I will return to the House on Report Stage to set out the next steps.

I am not willing to accept amendment No. 103. It would appear to immediately ban the advertisement of breast milk substitutes on broadcasting and certain video-on-demand services. As I said, primary policy responsibility lies with the Department of Health and other public health authorities, and rules providing for information and advertising standards are harmonised through the EU regulations. It is best to allow an coimisiún to consult public health authorities before any decisions are made regarding the prohibition of commercial communications for infant or follow-on formulae. This both respects the regulatory independence of an coimisiún and allows for the advice of public health authorities to be considered.

Amendment No. 124 would make explicit the power of an coimisiún to prohibit commercial communications relating to alcohol through a media service code. The advertisement of alcohol has primarily been addressed through the Public Health (Alcohol) Act 2018, which contains strong measures to limit the exposure of children to advertising. Sections 15 and 16 of the Act, which are in operation since November 2021, restrict alcohol advertising and sponsorship promoting alcohol products and include a ban on alcohol advertising and sponsorship at events aimed particularly at children or at which the majority of participants or competitors are children. These measures help to ensure that children can grow up in circumstances where they are not regularly exposed to alcohol products and alcohol advertising.

Section 19 of the Act provides for a broadcast watershed on radio and television stations. Prohibiting alcohol advertising during times when children might be in the audience will reduce children's exposure to such advertisements. The Department of Health is working with my Department, the Broadcasting Authority of Ireland and the environmental health service of the HSE with regard to the commencement of this provision. Policy responsibility for alcohol advertising rests with the Minister for Health within the framework of the public health legislation on this issue. The Public Health (Alcohol) Act contains a suite of measures specifically designed to protect children from exposure to alcohol advertisements. I am committed to engaging with the Minister for Health and his Department to facilitate the early commencement of the remaining sections of the Act. I expect that any media service codes issued by an coimisiún will set out the requirement on broadcasters and video-on-demand services providers to fully comply with the Public Health (Alcohol) Act. This Bill already provides an coimisiún with sufficient power to do so, and I do not propose to accept the amendment.

Regarding amendments Nos. 120 and 128, as a matter of principle I cannot accept amendments which would unduly limit the discretion of an coimisiún in the creation of regulatory codes. Accordingly, I do not propose to accept them.

I will be brief. I thank the Minister for taking on board the comments on formula milk and referring back to us. I reiterate my thanks to her departmental officials for speaking to me and engaging on this. It is important that something will come back to us on Report Stage.

I have to disagree with the Minister. The Public Health (Alcohol) Act says nothing about online advertising. Section 14 of that Act prohibits the advertising of alcohol, but in tiny places. It has nothing to do with online advertising. Again, the content element of the legislation has not been implemented.

While I am on the subject, I will return to the WHO report. I must put on the record today that the report states:

One of the biggest changes in recent years to alcohol marketing is the use of sophisticated online marketing. The collection and analysis of data on users’ habits and preferences by global Internet providers has created new and growing opportunities for alcohol marketers to target messages to specific groups across national borders. Targeted advertising on social media is especially effective at using such data, with its impact strengthened by social influencers and sharing of posts between social media users.

One data source quoted in the report calculated that over 70% of media spending of leading alcohol marketers based in the USA in 2019 was through promotions, product placement and online advertisements in social media.

I ask the Minister to reconsider this amendment. It could change lives and it could save lives. The report continues:

"The rising importance of digital media means that alcohol marketing has become increasingly cross-border”, said Dag Rekve of the Alcohol, Drugs and Addictive Behaviours Unit at the World Health Organization. "This makes it more difficult for countries that are regulating alcohol marketing to effectively control it in their jurisdictions. More collaboration between countries in this area is needed.”

I ask the Minister to consider this. The Public Health (Alcohol) Act does not deal with online marketing. I need the Minister to think about that. Every day I work with families who are absolutely devastated by their children being impacted. I am asking the Minister to reconsider the amendment and to just think about it. Let us have a conversation about it. Let me bring in representatives from Alcohol Action Ireland to talk to the Minister about this. It is absolutely vital. Given that it could save lives and change lives, it must be considered within this legislation.

The Minister seems to have indicated that on the section dealing with media codes she will consider naming breast milk substitutes, formula milk and follow-on milk which, would be good. If fat, trans fats, salt and sugars are named, it would be consistent. Formula milk and breast milk substitutes clearly meet the criterion of things that have a general public health interest for children. While references have been made to the Department of Health in terms of advertising and so forth, this is the legislation in respect of online marketing and promotion, and the regulation of these spaces and actors. The Bill already rightly makes reference to general public health interests. If we are referencing general public health interests without specifying the marketing of breast milk substitutes, one of the key items is being excluded.

The EU directives on the labelling of the composition of breast milk substitutes are not relevant to this, which relates to the provisions that may be made for prohibitions. Alcohol should also be named either here in terms of a potential prohibition or in terms of something which has relevance to the general public health of children and should either be prohibited or restricted. As the Minister outlined, the Public Health (Alcohol) Act is designed for events but it is not an event world when dealing with online broadcasting and communications.

Watersheds work for radio and television as we have them now but not for an on-demand media space. In this new space we need to be tackling either prohibition or regulation of how alcohol advertisements are targeted. What kinds of measures are being used in terms of how they reach people? I know that other amendments address this later and Senator Black has spoken eloquently about it.

I appreciate the Minister has indicated potential engagement in respect of the media codes. However, I believe we should have a straight prohibition on advertising as the World Health Organization has called for. I will press amendment No. 103. Regardless of the outcome of that vote, I would be happy to continue to work on the media codes recommendations.

I thank the Senators for the points they have made. As set out in the Bill, I would expect that an coimisiún will have a strong role to play in providing for standards and practices to ensure that commercial communications protect the interests of the audience and, in particular, the interests of children. An coimisiún will do so through the making of binding media service codes. The existing general commercial communications code which applies to broadcasters will remain in force until amended or revoked by an coimisiún.

In making media service codes related to commercial communications, it is important that an coimisiún takes advice from other public bodies with the appropriate expertise. In the case of infant and follow-on formula and alcohol, the appropriate experts would be relevant public health authorities. It is important that we do not through this Bill inadvertently introduce overlapping functions on the regulation of advertising – for example, between an coimisiún and public health authorities. I am confident that an coimisiún will take the best advice from the relevant public bodies and reflect them in the media service codes.

I understand the intention of Senator Black's amendment on the advertising of alcohol because alcohol abuse inflicts terrible damage on individuals, their families and wider society. That is why the Public Health (Alcohol) Act 2018 is such important legislation. It provides the appropriate base in law to regulate alcohol advertising. However, as I have said, I expect an coimisiún will require in any media service code it makes addressing commercial communications that broadcasters and video-on-demand services online will fully comply with the Act and any other public health provisions that may be advised by the Department of Health.

The Minister mentioned that the commission will take on board legislation. However, this is legislation. We want this to become some of the legislation the commission takes on board rather than the alcohol Act that was not designed for the online space as we have outlined, and indeed other provisions such as the EU directive which do not address this issue of online marketing. While accepting that public health advice is important, one of the things the commission will take on board is legislation which is why we wanted the legislation to send a signal as we prepare for Report Stage. We cannot outsource our responsibility as legislators solely to future public health advice. There is new legislation all the time. We co-create it and we should ensure it does what it needs to do.

Amendment put and declared lost.

I move amendment No. 104:

In page 51, to delete lines 26 to 32 and substitute the following:

“(4) Nothing in subsection (2)(a) prevents a broadcaster from broadcasting a party-political broadcast, or a relevant media service provider from making available, party-political programmes provided that an unfair preference is not given to any political party—

(a) by a broadcaster, in the allocation of time for such party-political broadcasts, or

(b) by a relevant media service provider, in the positioning of such programmes in a catalogue of the relevant service.”.

Is the Senator pressing the amendment?

I have not addressed the amendment.

It was already discussed with amendment No. 31. Does the Senator wish to press the amendment? I am sorry to catch him out like that.

It was in the very first debate.

I was away that day. I will withdraw and reserve the right to resubmit.

Amendment, by leave, withdrawn.

I move amendment No. 105:

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

(ii) by a relevant media service provider, in the positioning of such programmes in a catalogue of the relevant service.

(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.

(c) The standards and practices provided for in a media service code made under section 46N to ensure that broadcasters and relevant media service providers comply with section 46L(3) shall apply also to ensure compliance with paragraph (a).”.

Amendment put and declared lost.

I move amendment No. 106:

In page 51, between lines 32 and 33, to insert the following:

“(c) seeks to promote or advertise 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.” .

Amendment put.

On amendment No. 106, the question "That the amendment be made" has been put, and on that question a division has been challenged. However, I propose to put the question again in accordance with Standing Order 61.

Amendment put and declared lost.

I ask for leave for the Minister to speak to the amendment we have just rejected on the basis that we did not discuss it within the grouping. The Government's intention was never to oppose the premise of the amendment. The Minister would like to address the House for one minute, if that is okay.

In the circumstances, I will allow it.

I thank the Leader for requesting this opportunity. As she said, amendment No. 106 was not discussed in the Chamber. This amendment raises an important issue. Conversion therapy is an abhorrent practice and the programme for Government contains a commitment to legislate to ban that therapy. My colleague, the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, has been leading on this issue. My intention was to reject the amendment today but consider the matter before Report Stage. I intend to speak to the Minister for Children, Equality, Disability, Integration and Youth in advance of that.

I will briefly respond because this was my amendment. I appreciate and accept the bona fides of the Minister. I understand that she intends to address this issue but it would be good if the Government brought its own proposals in respect of it . It is the right of any Member of this House to bring amendments on this. There is a general strong view, shared across the House by both Government Members and Members of the Opposition, that conversion therapy and measures that compromise or invalidate a person's sexual orientation or gender identity are regressive and must be addressed and blocked. I co-signed legislation brought forward by Senator Warfield relating to this and I look forward with great interest to the legislation the Government may bring on this issue. However, I also believe we should seek to address or at least signal an intention to address it in this legislation.

I acknowledge what the Minister and the Leader have said and I also accept their bona fides. I appreciate that Minister for Children, Equality, Disability, Integration and Youth has work ongoing in this area around conversion practices. LGBT Ireland launched a campaign last week in the Museum of Literature Ireland on St. Stephen's Green. I commend it for its work in this area. I also commend the Minister, Deputy O'Gorman, on his work in respect of this matter. As Senator Higgins mentioned, there was a Bill in the Seanad in 2018, a specific section of which banned the advertising of conversion practices, which happen in Ireland, in the jurisdiction in the North and overseas. Irish people and youths have found themselves overseas for this reason. It would be beneficial to have a reference to conversion practices in this Bill in addition to the outright ban that I hope the Government will legislate for.

I move amendment No. 107:

In page 51, after line 39, to insert the following:

“(7) For the purposes of this section, political purposes mean—

(a) promotes or opposes, 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, or

(b) presents, 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, or

(c) presents, 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

(d) or opposes, 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 Referendum Commission has been established, or

(e) promotes or opposes, 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, or

(f) otherwise influences the outcome of the election or a referendum.”.

Amendment, by leave, withdrawn.

I move amendment No. 108:

In page 51, after line 39, to insert the following:

“(7) A broadcaster or media service provider shall also comply with any regulations and restrictions which may be set out by the Commission, including through a media service code.”.

Amendment, by leave, withdrawn.

Amendments Nos. 109 to 111, inclusive, are related and may be discussed together.

I move amendment No. 109:

In page 52, line 4, to delete “may” and substitute “shall”.

Amendment No. 109 would amend section 46N(1) by deleting the word "may" and replacing it with "shall" in connection with the commission making media service codes. This would ensure there is a legislative requirement on the commission to make codes rather than simply giving it the power or option to do so. Given the extensive debates we are having about media service codes, it is very clear that this will be one of the core functions of the commission, and there is an expectation that it shall make media service codes. This is a protection against a potential minimalist approach. I know that is not the intention of the Minister and that it will most likely not be the intention of the commission either, but it should be guarded against with good legislative practice.

Amendment No. 110 would insert a new subsection into section 46N requiring that the media service codes be approved by a motion of the Joint Committee on Tourism, Culture, Arts, Sport and Media. The issue previously mentioned is likely to arise with regard to the title of the committee. The Minister may also have concerns about whether it is appropriate to have every individual media service code approved by a motion of the committee, which is a reasonable question. However, the committee should have some form of oversight and input into the general direction of media service codes as they go forward. There is cross-party expertise there that would be beneficial. Under this amendment each code would need to be approved but there may be some other mechanism for appropriate consideration.

Amendment No. 111 would again replace the provision that media service codes "may" provide for standards of practices with a provision that they "shall" do so in the context of the matters addressed in sections 46J, 46K and 47L. This would ensure the commission has a legislative requirement to act. Wherever possible, it is appropriate for legislation to give clear guidance as to the expected functions to be performed.

I do not intend to accept any of these amendments. Amendment No. 110 provides that the media service codes made under section 46N shall be subject to approval by the Joint Committee on Tourism, Culture, Arts, Sport and Media. I cannot accept this amendment because it would represent undue interference in the regulatory independence of the commission. It is a key principle that the commission should be able to make regulatory decisions free from external interference, particularly from political bodies, as is required by the audiovisual media services directive.

By compelling an coimisiún to make media service codes covering all matters within section 46N(2) of the Broadcasting Act 2009, as inserted by the Bill, amendments Nos 109 and 111 would have the effect of limiting the discretion of an coimisiún in when and how it exercises regulatory duties through the creation of media service codes.

The purpose of establishing an independent regulatory body, an coimisiún, under this Bill is to delegate the exercise of powers from the Oireachtas to that body, in accordance with Article 15.2.2° of the Constitution. That a body delegated such powers has discretion in the exercise of such powers within the strictures of legislation is appropriate and in the spirit of the provisions on the independence of regulatory bodies in the revised audiovisual media services directive.

These amendments are not about how the commission exercises its duties; it is a matter of whether it exercises them. The provisions we are providing would not interfere with the commission's independence with respect to how the media service codes may be made or the standards and practices for complying with relevant sections. It simply suggests that they will. The Minister described them as duties. This is not simply about powers; it is also about duties. By inserting the word "shall", we make it clear that it will be a duty of the new commission to provide media service codes and to ensure that those codes provide for the relevant standards and practices. Again, I do not believe this crosses the line into the discretionary space. If we have regulators, then the idea of whether you regulate is not one that is up for grabs. We give independent powers in terms of the forms of execution. On the fact of the performance of certain functions, however, if we are going to the trouble to put legislation in place with regard to certain functions being performed, it is important that we know they shall be performed.

I accept the Minister's point on amendment No. 110. There is probably an excessive potential for political intervention, certainly in the context of individual media service codes. I am not going to press the amendment, but I reserve the right to suggest that, periodically, it may be useful for the relevant joint committee to discuss media service codes in order that if a concerning pattern develops with the codes, the issue could be addressed. I will withdraw amendment No. 110 because the Minister is correct in respect of it.

I still do not intend to accept the amendments. I am advised that amendments Nos. 109 and 111 would have the effect of limiting the discretion of the coimisiún in how and when it exercises its regulatory duties through the creation of media service codes.

Amendment put and declared lost.
Amendment No. 110 not moved.

I move amendment No. 111:

In page 52, line 7, to delete “may” and substitute “shall”.

Amendment, by leave, withdrawn.

I move amendment No. 112:

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) 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,

(ii) that, in relation to broadcast news and current affairs programmes, taken as a whole, there is equal participation by men and women,

(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,”.

This amendment relates to the media service codes. The codes are designed to protect the interests of the audience and prevent harmful or offensive material. We see it as being important here, as we do in other areas of the Bill, that we use the codes to promote certain outcomes.

We have an especially significant issue with gender bias and a lack of diversity, intentional or otherwise, across Irish radio stations. The reality is that current affairs in particular - and all of us in the House tune into current affairs programmes - are very much anchored by the male voice, even though the listenership for mid-morning talk shows is composed of a higher proportion of women than men. A number of studies have been conducted by the Why Not Her? collective, by Dr. Kathy Walsh and Dr. Jane Suiter of DCU and by Orla O'Connor of the National Women's Council of Ireland. They show that across all current affairs programmes, with respect to both presenters and contributors, the male voice is represented to the tune of 70%; only 28% of time is given to the female voice. We see that as a significant issue that could be overhauled and changed by inserting a quota within the legislation. It specifies not just gender but also sexual orientation, disability, colour and socioeconomic status to ensure the broadcast material reflects the participation and interests of the audience. With regard to current affairs programmes and broadcast news, we propose that there be equal participation of men and women.

There is also a significant issue dating back a number of years with not just the spoken word but also with the time given over to musical content and how much of it features female performers relative to male performers. We believe there is a need for a quota in that regard and that it should be 50%.

The final quota we are trying to insert concerns reserving broadcast time for compositions composed or performed by persons living on the island of Ireland. This goes back to a Bill which former Deputy Willie Penrose put forward a number of years ago and which received enormous support, especially from the traditional music sector. We believe that with traditional music, or any other genre of music that is under-represented in terms of airplay time across the radio stations, a threshold or quota needs to be inserted.

There has been a greater awareness of these issues and of the lack of diversity with respect to whose music is being played, who is presenting programmes or who is participating. To be fair, some radio stations have made efforts in recent years. We must again give credit to the Why Not Her? collective that has done so much work in this space to try to bring attention to that imbalance. It is important to highlight the likes of Tipp FM, SPIN FM, 2FM, 98FM and WLR FM, which I will be killed if I do not mention. These have made significant changes to both spoken word and music content. Other radio stations need to follow suit, but we do not believe those changes will happen organically. Something needs to be inserted into legislation to ensure that we can nudge radio stations along to ensure we have greater equality in what we are listening to.

I endorse the principle of what Senator Sherlock is trying to achieve, but the practicalities of how it will operate present a challenge. I wonder if this would not be better serviced in the area of codes that can be drawn up. Part of it is also going to be about encouraging radio stations to take action. As she mentioned, quite a number of them have done that. One of the difficulties is in the area of classical music, where there is a big challenge about getting more women performing. I was at a wonderful piece in the concert hall last Friday where they matched Clara Schumann with Brahms. We are seeing more efforts being made there but part of the problem for, say, Lyric FM, is that there is not a sufficient amount of work by female composers being performed and there is not a large number of female artists being encouraged. It is a bigger challenge that needs to be taken on board. I agree with the principle of quotas and they have their place but there may be a difficulty here for small local radio stations if we are too prescriptive.

Radio stations may use the quota and see it as an excuse rather than a way to encourage more voices to come along. I get the point that was made about Irish music. We need to think about areas like classical music where there is a much bigger challenge in terms of what needs to be done. The principle makes sense. Would it be better, even if quotas are involved, for the commission to draft a code and to do so as part of a broader programme? As has been said, it is not that the radio stations just introduced a quota. They have actively sought alternative voices. Similarly, there is a challenge within certain sectors of the music industry to ensure that more female voices come through while in other sectors of the arts there are challenges in terms of getting more male voices. I see where the Labour Party group is coming from but is this amendment a blunt instrument?

I commend the Labour Party group on bringing forward the amendment. I am aware of the work done in the area by former Deputy Willie Penrose, who brought forward an alternative Bill in the last term. We put it on the Order Paper because of the concerns about the quota and the impact of EU rules on defining Irish music. We copied the French example and focused specifically on Irish language works. Obviously there is a smaller percentage on that proposal but we thought it might encourage artists to create music through the Irish language and, therefore, keep royalties in this country. That proposal is on the back of any quota. For this Bill, we did not propose that but we proposed in amendment No. 73 that the commission could bring forward a report "detailing the breakdown of representation in terms of gender, race, and ethnicity, on television and radio". That amendment does not concern the quota at hand but it does concern talent.

Senator Malcolm Byrne mentioned radio and FM broadcasting, which I think will be around for a very long time, and that is underpinned by a licensing system and legislation here in these Houses. All of us are conscious of their competition in terms of music and video streaming, While linear television broadcasting might eventually be replaced by streaming over the Internet, radio and the licensing system will be around for a very long time.

This year many festivals will have a more local line-up. That will make a difference in terms of gender balance and the income from artists. Similarly, that situation applies to on-air talent. As Senator Sherlock mentioned, stations are committed to improving gender representation in their playlists but I think that the commission needs to study that aspect. I was disappointed that Sinn Féin's amendment, No. 73, was ruled out of order on the basis of an excessive cost to the Exchequer. Calling on the commission or legislating for the commission to report on these issues is the least that we could have expected but, unfortunately, the amendment was ruled out of order.

I commend the Why Not Her? collective campaign, which has compiled data in recent years that shows 85% of artists in the top 100 chart were male, which is a huge figure in terms of radio playlists. I know that in Britain female acts make up 20% of the top 50 British artists played and non-binary artists, who are represented by Sam Smith, made up 2%. We all know that radio stations are among the few places where artists can make money from royalties. So if there is unconscious bias in the industry, or in the radio playlists, then coimisiún na meán should explore that aspect whether we outline it in legislation or not.

I confirm that I support the amendment. I apologise for going around the houses with my comments but I was trying to speak to the many amendments that have been ruled out of order. I also had expected to speak to section 31, which deals with reporting.

The amendment is comprehensive and I will speak to two or three of its components. I am hopeful that either the Minister will accept this amendment or will bring some of its components forward on Report Stage.

The reason this amendment is important is because the section in which the amendment may be inserted is the media service code section. At the moment we have the very good values, which I think many of us across the House agreed on and sought to strengthen under the powers and functions section of the legislation in terms of the different principles that were addressed.

In the media service code section there is a second positive piece. There is a protection role and the promotion or participation directive. So the audiovisual, AV, directive has protective functions, and participative, positive and proactive measures that it seeks to do to promote participation in cultural life and so forth. As things stand, under section 46N, the focus by it nature, and I presume that is where the concern goes, is very much on the protective measures. So that is protection of the interests of the audiences and provisions against those issues of concern. We have all highlighted the different kinds of issues.

It is nice that amendment No. 112 seeks to show that media service codes can be positive tools that promote positive social goals. Again, that is a power under the AV directive. This is not solely about commercial regulation. The AV directive mandates that there be inclusion and participation, which are public-good goals. This is an example of what could be done in terms of the positive potential within media service codes so that they do not just become constraining, forbidding, prohibitive, protective or close things down, which are necessary in many ways, but also have a positive role, mandate public duty and reflect equality and human rights. These are a number of practical proposals that could reference and give effect to the second mandate that comes from the AV directive.

Senator Sherlock elaborated very well so I shall not do so. I was a member of the National Women's Council of Ireland around the time that some of the research was done, which the Senator referenced. I wish to make one textual point and I reserve the right to table an amendment on this on Report Stage. The research was very interesting, not simply in terms of the quantity of time given to male voices versus female voices on radio stations and in broadcasting, but also the nature of that time. For example, the research showed that women were asked to talk about their experiences and men were asked to explain what happened. I mean that the first-person experience was sometimes used for women and then a male expert was brought in to explain the actual story. That is another example of why women were not being given the same quality of time. Perhaps there is scope to address a couple of these issues not just through section 46N, as suggested here, but through section 46L, which is the section on news and current affairs. That space should be considered. I, therefore, make the constructive suggestion that a gender equality provision be inserted in that section.

On quotas, these are hard quotas. The question of giving the power at least to, potentially, set quotas is something that could and should be considered. These quotas would represent a leap forward in terms of the broadcast of musical compositions.

On promotion, there is a mandate for l'exception culturelle or cultural participation and cultural representation. That is one of the goals of the AV directive. The spirit of section (ba)(iii) in the amendment is important and its percentages would be great. If the Minister does not feel inclined to accept those specific percentages then the potential for the commission to set quotas would be constructive and represent a hard tool. Let me explain why I think a hard tool is needed.

It was referenced that certain radio stations are doing better than others. One of the reasons that some radio stations are doing better than others is because from time to time, radio stations have to go and seek licences again, so they are conscious that they are effectively having to seek airspace, be it digital or otherwise, but there is that question of being given bandwidth and there is a dynamic whereby the State gives licences. However, the broadcasters regulated by this legislation do not have that tool of constraint. The State does not have that lever to exercise in relation to the issuing of licences, so in that context it would be good if there was some form of hard tool that might be given to the commission which it could choose to exercise if it so wished in respect of a media service code.

There is no difficulty, in that we all agree with what the amendment is trying to achieve, but it comes back to the fact that a broadcaster is competing with a streamer. I just happened to look up the Top 10 charts at the moment and they are predominantly dominated by men. Harry Styles is in it and Elton John is even in there. The difficulty is that if we enforce a rule to the effect that radio stations must play 50% of female artists - I am very much in support of playing more female voices - or we put in a requirement, the danger is that the listener will then go to Spotify, or somewhere else, to listen to what they want. I have yet to be convinced that this is the best way to encourage more female voices to be heard. I am not saying I am opposed to it but we may be inhibiting local radio stations in particular if the requirement is to meet a specific quota rather than look at other ways of encouraging female voices in particular or, in some areas of the arts, encourage male voices.

I thank the Senator for bringing this amendment forward. I very much welcome the intent behind it. The amendment sets out that an coimisiún may, through media service codes, set air play quotas in relation to music content composed or performed by women or persons living on the island of Ireland. In this regard, I am strongly supportive of the promotion of Irish music on our broadcasting services, and in particular the promotion of Irish music composed or performed by women. Ireland has a strong and vibrant music sector, which is recognised across the world, and I am keen to ensure that appropriate supports are in place to further nurture and protect this sector.

I recently announced an additional allocation of €10.5 million to the sound and vision scheme. That included €2 million to support live music projects. I have asked the BAI to ensure that the application criteria seek to ensure that 50% of both the performers and the creative team involved in these projects should be women. I have also asked that a similar requirement would be included in another forthcoming round of the scheme, which will provide €2 million for Irish language broadcasting projects. This will add to the BAI's existing strategy of ensuring funding decisions have regard to increasing diversity in programme content, including gender equality and inclusion, as well as the extent to which the creative team includes women in a leadership role.

Moving from using supports to promote balance in programming to using legislative instruments presents challenges, in particular when airplay quotas are involved. I am conscious of the legal factors which must be taken into account when considering the feasibility of introducing any kind of airplay quotas. Ultimately, the introduction of airplay quotas would need to be consistent with European Union law, in particular those provisions of the Treaty on the Functioning of the European Union guaranteeing freedom of establishment and free movement of services. I am advised that any quotas in respect of airplay imposed on the basis of nationality or residence would be considered to restrict the free movement of services by placing music that is performed by persons of a particular nationality or living in a particular member state in a more advantaged position. Airplay quotas on the basis of gender might be permissible under EU law if it could be demonstrated that such quotas could be justified by overriding reasons in the general interest. The question is whether setting binding gender quotas in legislation would have the desired effect. If airplay quotas based on gender are permissible under EU law, I would be open to further exploring this issue. However, all of us would want to be certain that any legislation would have its intended effect.

The amendment also provides that an coimisiún may make media service codes in relation to broadcasters to provide for the appropriate representation of all groups within the community, on broadcast programme material and on equal representation on broadcast news and current affairs programmes. I am absolutely committed to supporting diversity, inclusion and the full and effective participation of women across the sectors for which my Department is responsible and across wider society. The question is whether media service codes, which are binding on broadcasters, are an appropriate mechanism to achieve this objective. While I do not propose to accept the amendment today, given the importance of the issue raised, I will ask my officials to consider it further with a view to resuming the discussion on this matter on Report Stage.

I thank the Minister for her reply. I very much hear her strong commitments on gender and in terms of music. I look forward to Report Stage, but there is an issue as to whether we are going to hardwire something like this into legislation or otherwise. Could the Minister clarify whether she intends to bring forward an amendment on Report Stage in this regard or if it is a question of a more trenchant rejection of our amendment on Report Stage?

That is why I am taking the time with the officials to see what can be done. As I outlined in my response, we want to make sure, if we bring anything forward, that it does not have unnecessary implications and that what is intended will happen. We need time to consider it and then we will come back to the House on Report Stage.

I am not sure about the procedure in terms of bringing something back on Report Stage when an amendment was ruled out of order because, essentially, it would not have been discussed.

My amendment, No. 73, was ruled out of order. It would have required the media commission to bring forward a report on some of these issues. I am not sure how I can bring that back on Report Stage but, at the very least, we should ask the media commission to report on these issues. I am just saying this to aid the process of bringing forward an amendment on Report Stage. I hope it will not be ruled out of order then.

The Senator can discuss the amendment with the Bills Office and it may be able to assist.

The Minister has addressed the issue of gender to some extent and indicated her intention to look to those issues. It was useful and positive that she correctly identified that gender quotas are something that can be done and there is a lot of EU legislation in respect of them. That is positive, but on the issue of reporting in regard to music in particular, again, as Senator Warfield says, his amendment would not have placed a requirement for blocking, but it would have allowed a monitoring of what is happening in respect of music and other areas. There are certain areas where the Government has more freedom to bring amendments than we as Senators have. When we table an amendment and raise an issue, we are engaging in good faith. It is not simply that we might get a "Yes" next time. There is an expectation on this side of the House that the Minister may bring proposals and amendments. That is something which is very constructive because then they are the Minister's amendments, and she has the control. We would all be interested to see those. I say that to indicate that we should not simply come at the discussion again on Report Stage but that in fact the Minister might potentially bring amendments in this area. The example Senator Warfield gave was about reporting, which is an area where we have been blocked from tabling amendments in respect of what gets reported on, but the Minister has the freedom to table such amendments.

On the question of gender, it sounds like that is an amendment the Minister is considering. I want to indicate that it would be useful so that we do not just come back to the topic but do so with proposals on the table.

To clarify, I was addressing amendment No. 112. Senator Warfield's amendment was ruled out of order, which was nothing to do with either me or my officials. It is the Bills Office that ruled it out of order. In my reply, I was addressing amendment No. 112. Everything I do is in good faith. We want to be certain that any legislation would have its intended effect, so we are taking the time to examine this issue. I thank Senator Higgins for raising it. It is something that I agree is of the utmost importance.

Amendment, by leave, withdrawn.
Amendment No. 113 not moved.

I move amendment No. 114:

In page 52, lines 13 and 14, to delete “that in programme material audiences are protected from anything harmful or offensive, and in particular”.

While, in general, there are many areas where we would like to have a more proactive preventive role, we have identified specific areas where there should be prohibitions or restrictions. In some ways, there are very specific known concerns backed by research and facts which are not addressed in the Bill, while it also includes wide provisions that can be interpreted. This amendment looks to the question of protecting audiences from offensive materials. The phrasing in the Bill is very widely framed. It is not clear how the term "offensive" is to be defined. For example, does it allow for the blocking of works of art which may include depictions of violence, sexuality, gender diversity or any other legitimate forms of artistic expression?

It relates somewhat to the previous debate we had on terms such as "harmful" or "offensive". It is appropriate that we try to address damaging and harmful communications, in particular those targeted at persons covered under equality legislation, the ECHR and other areas. The phrase "offensive" is quite loose and the amendment is an attempt to amend that.

Other amendments deal with harmful content and we will debate this issue in more detail. As was mentioned in our previous debate, the phrase "harmful" is quite wide. Does it mean harmful to interests or at a financial level? How is something harmful in that context? The Minister will be aware that in this amendment we are suggesting that the term be removed. I have tabled other amendments regarding the question of harmful or offensive content where I suggest caveats that might be added. I want to be clear that I am not against the principle of us trying to tackle materials that are harmful or offensive, but there need to be caveats around how that is defined. It should not be left in an extraordinarily loose way which could, in effect, end up being used by those with significant power to silence or diminish those with more marginalised voices or who are vulnerable within society.

Amendment No. 114 would remove the requirement for media service codes to provide for standards and practice to ensure that audiences are protected from anything harmful or offensive. I cannot accept this amendment as I am of the view that the principles and policies set out in section 46N must reflect the need to protect audiences from harmful or offensive content being broadcast. This is, in part, due to the requirement in the revised directive that member states shall take appropriate measures to ensure that audiovisual media services which may impair or harm the physical, mental or moral development of children are only made available in such a way as to ensure that children will not normally hear or see them.

I understand the point the Senator is making. That is why I am examining this issue more generally in the context of amendments Nos. 92 and 93. They concern a proposal by the Senator to amend similar wording regarding the duties of broadcasters and providers of video-on-demand services. My examination of amendments Nos. 92 and 93 will address her concerns.

Whatever resolution or proposal we may come to in respect of amendments Nos. 92 at 93 might need to be reflected or echoed in this section. Those amendments relate to harmful content, whereas this amendment relates to the media code. I imagine a similar solution can be found. I appreciate what the Minister has said. I sympathise with the fact that there need to be measures in this regard, but it is just a matter of having better caveats and clarifications. In that context, I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 115:

In page 52, to delete lines 16 and 17 and substitute the following:

“(i) with due sensitivity to the subject matter and the audience,”.

I am concerned about how this is framed because there could be a potential mandate for a restriction on equality, rather than supporting it. At the moment, the Bill states, "With due sensitivity to the convictions or feelings of the audience,". Again, if we talk about the fear that terms like "harmful" or "offensive" could be interpreted widely, the convictions or feelings of the audience are very amorphous and widely framed. For example, as I mentioned there are those with very strong religious or other convictions in respect of people's existence in terms of LGBT rights, or feelings in respect of issues. It is very subjective. Somebody who was, for example, very financially well resourced but had a particular, and perhaps very narrow and specific, set of convictions or feelings could push on these matters. I am concerned about that.

I have suggested that we instead use the phrase "with due sensitivity to the subject matter and the audience". That recognises that there are subject matters that are extremely difficult for people. For example, there are subject matters which should come with trigger or content warnings. That is good practice on the part of individuals online, that is, the idea that when something is to be shown that may have a particularly significant impact it is signalled properly and appropriate. There may be vulnerable persons who are impacted by subject matter.

A phrase like "due sensitivity to the subject matter and the audience" recognises that difficult subjects may need to be addressed and also recognises that an audience may contain persons who are sensitive or vulnerable or, for example, have been personally impacted by an issue. I understand that needs to be addressed. It is not that I am against feelings per se because we do need to think about that. Broadcasting has an impact. Whenever a new show or prime time programme is broadcast, some people get upset and are impacted by that. This amendment might be a slightly better way of wording this. Rather than the phrase "convictions and feelings" the phrase "sensitivity to the subject matter and the audience" might be a little better.

Amendment No. 115 would delete lines 16 and 17 which read with "due sensitivity to the convictions or feelings of the audience" and substitute it with the phrase "due sensitivity to the subject matter and the audience". It is noted that the text that is proposed to be deleted and-or replaced reflects similar language in the extant Broadcasting Act which has not, to date, been flagged as an issue in any public or stakeholder consultations carried out by my officials. In my view, the proposed wording seems to broadly achieve the same effect as the original wording and, therefore, I propose to reject the amendment on that basis.

I am concerned about what I believe is an excessive reliance on the Broadcasting Act. We need an acknowledgement that we are not dealing with the exact same thing. Simply taking the fact that a previous piece of legislation exists in terms of the 2009 Act, we should legislate for what we know to be the world and its concerns rather than simply following through on measures from a previous piece of legislation. I am concerned by a general pattern of, in effect, transposing measures developed in terms of broadcasting and not considering whether they apply relevantly and are as good as they could be. Legislation is improved all the time; otherwise we would all still be dealing with UK directives from the 1800s.

It is new legislation and I think we can and should do better. My amendment is particularly important because it allows for a sensitivity to the subject matter as well as the audience. The measure, as currently set out, only looks to the convictions or feelings of the audience. Many can speak to the embedded prejudice in Irish society. I am sure my colleague Senator Flynn has spoken to it on many occasions. We have many deep-seated prejudices and convictions within Irish society. If that is what the broadcaster has to respond to, then how do we move on and deal with a sensitive new subject? How do we deal with something that might allow us to move forward? I regret that the Minister is not able to accept this amendment.

Similar language is in the Broadcasting Act but to date that has not been flagged in any engagement my officials have had with the public or stakeholders. In regard to the text of the amendment, the subject matter at hand in this provision is set out in section 46N(2)(c), which states "that in programme material audiences are protected from anything harmful or offensive, and in particular that programme material relating to gratuitous violence or sexual conduct is presented ... with due sensitivity to the convictions or feelings of the audience". I do not believe that a further reference to subject matter is necessary. Furthermore, I do not believe that the proposed changes from referencing the media service providers having "due sensitivity to the convictions and feelings of the audience" to just having "due sensitivity to the audience" would change much as what would having "due sensitivity to the audience" mean in practice other than considering their convictions and feelings? I am not accepting the amendment.

Is Senator Higgins pressing the amendment?

I accept the subject matter is sexual conduct. I refer to how LGBT rights have been treated in our media and in the media of our neighbouring country. Due sensitivity to the convictions or feelings of the audience is one thing but what has happened is that the convictions of persons who do not really recognise the rights of transgender people have been given an equal footing with the feelings and sensitivities of persons who are transgender. That is why I do not think convictions in this space should be given the same weight as the feelings and sensitivities of a person.

I will withdraw the amendment and engage further with the Minister on this issue. However, I ask the Minister to consider that particular fact because sexual conduct can be encompassed in that. There are many bad examples whereby a person's desire or feeling that somebody else's identity is invalid is given a similar weighting to the feelings and genuine vulnerabilities of a person whose identity that is. I am going to withdraw the amendment but I urge the Minister to think about that matter.

I did not want to go into specific examples. I do not like to have conversations that are around inflammatory topics but this is an example of a concern I have. I am proud that Ireland has good gender recognition legislation. Ireland has had a constructive and positive public debate on it but I sadly look to our nearby neighbour and the way that broadcasting has been framed in that regard, and that is the example I had in mind. I will withdraw the amendment and reserve the right to come back to the issue.

Amendment, by leave, withdrawn.

Amendments Nos. 116, 117, 142 and 143 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 116:

In page 52, line 19, after “mental” to insert “, emotional”.

This amendment seeks to add the term "emotional" to the list of developmental categories for children which should be respected in regard to making standards and practices on broadcasts depicting gratuitous violence or sexual content, effectively anything that may impair their physical, mental or moral development. At a debate some were saying we should remove moral development because they were concerned at how moral development might be construed. However, I think moral development is quite good in terms of the ethics of respect and consent. I had considered the removal of moral development in that regard but I believe it is very valuable. When we talk about moral development, we are not just talking about somebody else's morals or a moral code - for example, from religious institutions or otherwise - so we need to add the phrase "emotional development". That makes it clear that while something may come from a moral code, but it is in fact emotionally damaging or impairing to children. That is why I seek to add "emotional" rather than remove "moral".

Amendment No. 117 seeks to guard against an over-reach by media outlets but I am not going to press amendment No. 117. My preference is amendment No. 116, which is the addition of "emotional" rather than the removal of "moral". A very strong argument was made to me by persons who are concerned about the word "moral" and how it might be interpreted. That is why a counter-balance is needed. That is where amendment No. 117 came from, so that we do not have a situation where there may be, for example, vexatious complaints from those with particular moral convictions or perspectives. When you combine the "convictions of the audience" with "moral development", there is a danger there which I believe should be counter-balanced.

Amendments Nos. 142 and 143 replicate amendments Nos. 116 and 117. These are the same two approaches in respect of the provisions amending section 71 of the principal Act, which uses the same language as section 46(N). They are the same points. I included both of them because I tried to think of what this will look like when it is happening for people and what will happen in terms of the complaints or measures that might be taken and what the effect will be. I would appreciate the Minister's thoughts in terms of those two approaches to the issue.

I thank Senator Higgins for raising her concerns in amendments Nos. 116, 117, 142 and 143 regarding the terminology used in the Bill. The term “physical, mental and moral development” is a transposition of the text of the Audiovisual Media Services Directive - for example, in Articles 6(B), 9, and 28(B). The use of that terminology is required to properly transpose the directive and therefore I cannot accept these amendments.

In that context, I would especially urge the Minister to revisit the convictions point given that those convictions may be read alongside the moral development point. I appreciate the Minister is bound by the Audiovisual Media Services Directive. I may reserve the right to find another way to look at perhaps an additional point in regard to protection from emotional harm. However, in a context where moral development is inserted and the convictions of an audience are referred to, there is a concern of a possible situation whereby there may be vexatious or worrying dynamics where media broadcasters are encouraged to filter out content that may receive complaints or not address issues that are important for certain elements of our community in Ireland because of a risk that by discussing very real and important sexual issues, for example, that they may risk complaints and we may have invisibility in regard to certain issues.

A negatively balanced and framed debate is one danger and invisibility is another. I accept the Minister is bound by the terms of the audiovisual media services directive and I will not press the amendments. I urge the Minister to consider how the phrase might be set alongside the phrase in relation to convictions.

I want to speak on this point and what was said in the previous debate. I accept what Senator Higgins is trying to do. She touched on a number of issues. The Future of Media Commission held extensive debates on this and I participated in them. They were about making sure broadcasters reflect on content. There were debates on gender, the visibility of disabled people and how children are protected. There was a special half-day discussion on this point alone. The Senator is trying to enshrine it in legislation. The Future of Media Commission was trying to ensure its reflection through a carrot approach rather than a stick approach. As Senator Higgins quite rightly acknowledged, when it was assessed and a review was done it was found there are certain areas where improvements need to be made in Irish media but on the whole it is quite good. I want to make this interjection to note there was quite an extensive debate during the discussions. It should also be reflected.

I did acknowledge that the debate has been better in Ireland than in other countries. Senator Cassells mentioned persons with a disability. Persons with a disability have found that many people seem to be offended by discussion of their sexual activity, for example. Persons with a disability have really had to push for visibility of their right to have relationships and be sexually active. There have been wonderful films and productions that have tried to address this. It is a subject that many people are very uncomfortable with and say they do not want to see it reflected in society. It is a different example. Given the context of the directive I will not press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 117:

In page 52, line 19, to delete "moral" and substitute "emotional".

Amendment, by leave, withdrawn.

I move amendment No. 118:

In page 52, between lines 20 and 21, to insert the following:

"(ca) for the avoidance of doubt, in paragraph (c)(ii) sexual conduct shall not be construed to include educational materials which feature discussion of sexual content and seek to provide education on topics such as consent, sexual health and relationships,".

This is a caveat to the same section we have been discussing. It is for the avoidance of doubt and makes it very clear that when we speak about sexual conduct, the limitations on the reflection of sexual conduct should not be construed to include educational materials that feature discussion of sexual content and seek to provide education on topics such as consent, sexual health and relationships. This is so we do not have a situation whereby the convictions and feelings of an audience about matters of sexual contact are weighed against a constructive role in educational materials or educational broadcasting. I say this in the context of discussions with the Minister, Deputy Foley. The gender equality committee had a very detailed discussion on the absolute importance of relationships and sexuality education in schools. It is also relevant to online content on sites such as SpunOut.ie. Sometimes it has been through online broadcasting that people have accessed information when there has been very uneven information provision in our schools. It is to make sure we do not have an inadvertent consequence of the wording whereby it would be inadvertently construed as suggesting the impeding of educational materials.

I thank the Senator. It is not the intention of the section, as drafted, 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. Instead the provision intends to protect audiences, and children in particular, from sexual content that may be considered offensive or harmful to their well-being. I can certainly see the merit in the proposed clarification and I have asked my officials to engage with the Office of the Parliamentary Counsel with a view to returning to the House on Report Stage.

I thank the Minister very much. In this context I withdraw the amendment and reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 119:

In page 52, line 21, after "that" to insert "advertisements and".

This is on the issue of advertising and commercial communications.

Amendment, by leave, withdrawn.

I move amendment No. 120:

In page 53, line 17, to delete "may" and substitute "shall".

Amendment put and declared lost.

I move amendment No. 121:

In page 53, line 18, after "in" to insert "advertising or".

Amendment, by leave, withdrawn.

I move amendment No. 122:

In page 53, line 18, after "of" to insert "advertisements and".

Amendment, by leave, withdrawn.

I move amendment No. 123:

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".

Amendment, by leave, withdrawn.

I move amendment No. 124:

In page 53, line 22, after "sugars" to insert "or alcohol".

Amendment, by leave, withdrawn.

I move amendment No. 125:

In page 53, line 22, after "sugars" to insert "or substitutes for breast milk".

Amendment, by leave, withdrawn.

I move amendment No. 126:

In page 53, between lines 22 and 23, to insert the following:

"(5A) Provision made for the purpose referred to in subsection (2)(d)(ii) may prohibit the inclusion in programmes of commercial communications relating to gambling considered by the Commission to be the subject of public concern in respect of the general public health interests of children.".

This would explicitly empower the commission to regulate the advertising of gambling with the public health interests of children in mind.

This amendment has already been discussed.

Amendment, by leave, withdrawn.

I move amendment No. 127:

In page 53, between lines 22 and 23, to insert the following:

"(5A) Provision made for the purpose referred to in subsection (2)(d)(ii) may prohibit or restrict the inclusion in advertising or programmes of advertisements or commercial communications relating to the promotion of gambling or speculative financial activities likely to pose a significant financial risk to an individual, including the promotion of cryptocurrency trading.".

Amendment put:
The Committee divided: Tá, 9; Níl, 28.

  • Black, Frances.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Moynihan, Rebecca.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Martin, Vincent P.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Frances Black; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.
Amendment No. 128 not moved.

Amendments Nos. 129, 130 and 132 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 129:

In page 53, between lines 25 and 26, to insert the following:

“(6A) In preparing such codes, the Commission shall have due regard to—

(a) section 42 of the Irish Human Rights and Equality Commission Act 2014,

(b) the United Nations Convention on the Rights of Persons with a Disability,

(c) the need to promote the Irish language in the State,

(d) the Charter of Fundamental Rights,

(e) the need to support participation in art and culture in Ireland, and

(f) Ireland’s national and international obligations in respect of climate change.”.

This amendment is different from Senator Sherlock's but similar in spirit in that it is an attempt to ensure that media service codes do not simply have a minimalist protective role and instead push us forward by having the positive role and mandate allowed for in the AV directive. In that respect, I suggest in the amendment some of the areas the commission should have regard to in the preparation of the codes. The commission is not simply regulating a business or sectoral area. It has a positive role in the context of the promotion of participation and inclusion, all these principles of diversity and everything else we discussed in respect of the section dealing with the powers and functions of the commission.

Other amendments in this vein, including Senator Sherlock's, suggest specific measures concerning equality, participation, etc. This amendment pulls back a little from that approach. I leave scope for the commission to interpret its remit. I suggest, however, that it should have regard to section 42 of the Irish Human Rights and Equality Commission Act 2014, which is concerned with the public duty on equality and human rights. The commission is, effectively, required to have regard to this legislation anyway in the performance of its duties, but this would be a reminder that the preparation of codes is one of those functions in which that public duty regarding equality and human rights should be reflected. This aspect has been discussed in the context of procurement as well. I refer to the public duty in respect of equality and human rights perhaps being present at a top level in an organisation but not being reflected in the key tasks such a body might be performing.

Turning to the United Nations Convention on the Rights of Persons with a Disability, UNCRPD, which Ireland has now ratified and which is, therefore, an international law that we have signed up to, this is another aspect that this amendment would ensure the commission should have due regard to in the preparation of codes.

The amendment also deals with the need to promote the Irish language in the State. These are all existing commitments, but this is intended to be a reminder that the commission should seek to think about how they can be appropriately reflected in the media codes. In the same context, I refer to the Charter of Fundamental Rights, the need to support participation in art and culture in Ireland, which reflects the exception culturelle and the principles of cultural diversity and participation in the AV directive, and Ireland’s national and international obligations in respect of climate change.

Many of these factors are reflected in the part of the legislation that deals with the general powers and functions of the commission. I am concerned, however, about the tone in the media service codes, which seems concerned with what to avoid and the mistakes and pitfalls not to make. It does not have a sense of a positive promotional duty. This is why it would be good to indicate to the commission, in the context of the media service codes, that there is an expectation that it will consider these positive, acknowledged and existing policy goals of the State and the mandates of the AV directive.

I do not need to dwell much more on amendments Nos. 130 and 132. I have suggested many things, but the fundamental one, and that which perhaps encompasses many of the others, is the public duty in respect of equality and human rights. Again, this is a public duty to not simply protect equality and human rights but an obligation to promote equality and human rights. This is what is in section 42 of the Irish Human Rights and Equality Commission Act 2014. In amendment No. 130, I suggest - even if the other factors are considered too wide - that the Minister strongly consider inserting this measure into the section dealing with media codes. Amendment No. 132 simply echoes the same provision in respect of media service rules.

I thank the Senator for tabling these amendments. Amendment No. 129 sets out several matters to which an coimisiún should have regard when making media service codes, while amendment No. 130 sets out that an coimisiún should have regard to section 42 of the Irish Human Rights and Equality Commission Act 2014 when making media service codes. The objective of media service codes is to provide for standards and practices that are binding on broadcasting and video-on-demand services. The Bill ensures that such standards and practices apply to commercial communications, including advertising, programming and the coverage of news and current affairs.

It is important that any standards and practices set out are not overly prescriptive, to the point that they are perceived to direct what types of content should be covered or to impinge on editorial independence. I cannot accept the amendments, as they may contain the implication that media service codes may direct broadcasters or video-on-demand services to prioritise particular types of content. However, I understand the intention of the Senator's amendment in seeking to draw attention to the matters set out in the amendments.

A more appropriate place for some of those provisions would be section 7, which provides for powers, functions and duties of an coimisiún. Many of the subjects set out in the non-exhaustive list suggested in amendment No. 129 are adequately captured in section 7 in a way that ensures they inform the totality of the work of an coimisiún. For example, section 7(3)(d) of the Broadcasting Act, as amended by the Bill, provides that an coimisiún shall promote and stimulate the development of programmes in the Irish language and programmes relating to climate change and sustainability. Section 7(4) provides that an coimisiún shall have regard to the policies of the Government in respect of climate change and sustainability.

As regards the reference to the Irish Human Rights and Equality Commission Act, IHREC, 2014, in amendments Nos. 129 and 130, as I outlined previously in the debate, section 42 of the IHREC Act provides that a public body shall have regard to the need to eliminate discrimination, promote equality of opportunity and protect human rights. As a public body, an coimisiún will be subject to the provisions of that Act. I agree with the Senator's point that public bodies should comply with section 42 of the IHREC Act as a matter of course. I would expect that an coimisiún would not only simply comply with the Act but, as a public body, would show a culture of respect for human rights.

As regards references to international legal instruments such as the Charter of Fundamental Rights and the United Nations Convention on the Rights of Persons with Disabilities, I would expect that an coimisiún will, as a public body, have regard not only to the UN Convention on the Rights of Persons with Disabilities but all international conventions that have been ratified and entered into force here. I am not sure of the rationale for listing some international legal instruments and not others.

Amendment No. 132 requires that an coimisiún should have regard to the United Nations Convention on the Rights of Persons with Disabilities and section 42 of the Irish Human Rights and Equality Commission Act 2014 when making media service rules. It is important that in making media service rules, the legislation be sufficiently precise as to the nature and content of the rules. The points I have made regarding amendments No. 129 and 130 would apply to this amendment. The requirement to have regard to the United Nations Convention on the Rights of Persons with Disabilities and section 42 of the Irish Human Rights and Equality Commission Act is too broad for this provision and therefore I cannot accept this amendment.

I accept some of the points, but I note that equality and human rights have not been specified in section 7. Again, that is an area where I have indicated an intention to table an amendment. I acknowledge that I have had constructive engagement with the officials in the Department on the matter. It would be appropriate for equality and human rights to be referenced because it is not a matter of it just being in the code; it is important that it is in taken into account in the preparation of the codes.

The Minister mentioned a culture within organisations, but one of the problems that has been recognised in terms of section 42 of the Irish Human Rights and Equality Commission Act is that some Departments and public bodies believe that it simply applies to them internally in terms of their internal equality or human rights policies rather than as it does to them in the performance of all their functions and what they do in the world. The reason I seek to copper-fasten it is because there is a gap and an uneven understanding of the public duty on equality and human rights. I do accept that if it were addressed properly in section 7, which is an issue I have discussed with the officials, it could be a potential way of dealing with it. It may not be necessary to name the Act, but it might be useful to refer to the principles of equality and human rights being properly reflected in the section.

Let me outline one of the ways I have sought to address the issue in respect of procurement. In my recent procurement legislation, I could not create a new legal obligation because, as the Minister rightly said, it already exists in section 42 of the IHREC Act, but I could provide, within appropriate bounds, that there would be reporting on how that had been reflected. Again, that was around a culture shift within procurement. I was not creating it as a new obligation, because it is an obligation, but I was requiring that it would be reported on, and that requires some element of reflection on it within a public body.

It is a strange ruling on reports, but I accept it is not the fault of the Minister. Some concerning decisions have been made on amendments in relation to issues being included in reports being found to be out of order. That is wrong and it is an issue for us to tackle in the Committee on Procedure and Privileges, CPP. Consider what can be done in the interim while that issue is being resolved within the CPP. When I engage with the officials, my understanding is that I might be constrained in tabling amendments on reporting, but that might be an area where the Minister could table an amendment to make sure that when a body reports on what it has been up to, it reports on that matter as well.

There may be two ways that it could be tackled, for instance in section 7, in terms of powers and functions, as the Minister outlined, but perhaps also in terms of reporting, so that it is not just there in the picture but in how the commission thinks about itself, and that would embed it that little bit more. In the context of the constructive engagement I have had with the Minister's officials in respect of section 7, and in the hope that we might have constructive engagement around the issue of reporting, I will not press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 130:

In page 53, between lines 25 and 26, to insert the following:

“(6A) In preparing such codes, the Commission shall have due regard to obligations under section 42 of the Irish Human Rights and Equality Commission Act.”

Amendment, by leave, withdrawn.
Amendment No. 131 not moved.

I move amendment No. 132:

In page 55, between lines 12 and 13, to insert the following:

“(9A) In preparing such rules, the Commission shall have due regard to obligations under section 42 of the Irish Human Rights and Equality Commission Act and the United Nations Convention on the Rights of Persons with Disabilities.”.

Amendment, by leave, withdrawn.

Amendments Nos. 133 to 138, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 133:

In page 55, line 18, to delete “3 years” and substitute “1 year”

Amendment No. 133 relates to ensuring that the commission would prepare a report for the Minister on the operation of media service rules in the form or manner the Minister specifies. I hope that form or manner would include consideration such as the public duty on equality and human rights. The report should be made not later than one year after the coming into operation of this subsection. Currently, it states three years after the coming into operation of this subsection and every three years thereafter. This is a very new area. It is incredibly impactful. In effect, it is an entirely new architecture of regulation and so it is very important that we get it right. I am concerned that a three-year delay in terms of signalling how this has been put into operation may not allow the Minister for example, as the Minister who has put this measure in place and is familiar with it, to review the operation of the media service rules. It would mean it would be another future Minister who might be coming new to the topic. That is in terms of the first amendment, the specific one. Again, we need to see how it is working and if we are getting it right and doing this the right way. It is complicated and new. The amendment would say that in not later than one year there would be a report on the operation of the media service rules. Of course, it may not be perfect, and concerns may have been flagged. The report does not have to say that everything is working fantastically. In fact, if the report says there is an unforeseen consequence, obstacle or a problem that has arisen, that is fine, because that gives us an opportunity in this Oireachtas to amend and fix it.

That is why it would be constructive to have a report within one year. As I stated, it is not simply to kind of cheerlead the report; it is to ensure that everything happens as we all hope it will and that it is working well.

I subsequently suggest that every three years thereafter is too long and propose that it be done every year. I am more flexible on that. I know it may be unduly onerous to report every year. I was seeking to be consistent. The important point is that the first report should be produced after a year.

As regards the other amendments in this grouping, similarly, there is a proposal that it be done annually rather than every three years. Again, this is the idea of an annual report. In a very fast-moving area, that would allow for the recognition of trends or concerns, as well as action in an expeditious and effective way on those trends or concerns.

Amendment No. 136 seeks to ensure that the period of public consultation on the draft media service codes would be specified as being at least 30 days. At the moment, the provision refers to "within such period as the Commission specifies". The concern is that may end up being a very short period, such as a week or two weeks, on something that is very significant - a media service code that affects a large number of persons. It seeks to ensure that people are not on constant watch. There needs to be a reasonable period to allow word to get out that a consultation is taking place. I suggest a minimum of 30 days.

Amendment No. 137 proposes that the draft should be available for inspection for at least 30 days, while amendment No. 136 proposes that persons should have at least 30 days in which to make a submission. These amendments are to make sure there is a minimum period rather than a very short period. I know it is not the intention of anybody to have a very short period but, unfortunately, the legislation does provide for that at the moment.

As regards amendment No. 138, which is the final one in this grouping, it proposes a period of four weeks. I am ambivalent in respect of whether it is four weeks or 30 days. The amendment proposes that a draft be available for inspection for "at least four weeks prior to the period designated by the Commission". These amendments all relate to time periods. It is about ensuring that we are giving people adequate time to engage with the media service codes and that the Minister or her successor is being given regular opportunities to engage with issues that may have arisen.

Amendments Nos. 133 and 134 would have the effect of obliging the commission to prepare a report on the operation of the media service rules made under section 46O(5) of the Broadcasting Act, as amended by the Bill, on an annual basis. The requirement for review every three years, as proposed in the Bill, gives effect to Article 7.2 of the audiovisual media services directive. As the current timelines in the Bill reflect the requirements of the directive, I will not be accepting this amendment.

Amendment No. 135 would have the effect of specifying that an coimisiún should make a draft media code or rule available both online and in a public place. I do not agree with inserting the proposed level of detail into the Bill and, accordingly, do not propose to accept the amendment.

Amendments Nos. 136 and 137 both require that the period in which a person may make a submission to an coimisiún regarding a draft media service code or rule shall be a minimum of 30 days. The Bill, as initiated, provides that the period shall be as specified by an coimisiún. I do not think that circumstances would arise where an coimisiún would run a public consultation process with a very constrained time period for responses. Accordingly, I do not accept the amendment.

Amendment No. 138 requires that a notice issued by an coimisiún setting out that availability of a draft media service code or rule for inspection and public consultation period shall be published at least four weeks prior to the public consultation period commencing. I do not see the merit in providing for a period of four weeks in legislation. It would be more usual for a public body to give notice that a public consultation was commencing, rather than that a public consultation would commence in a specified period. Accordingly, I do not accept the amendment.

I accept the Minister's point in respect of the three years if that is specified in the audiovisual media services directive, but I believe it is important that there is engagement from her, as Minister, within her time in office. This is a substantial set of new provisions. While I am happy to accept the proposal in the audiovisual media services directive in respect of three years rather than annual reporting, I believe an interim report or some other mechanism that allows for proper scrutiny within a year to 18 months following the introduction of these media service codes would be appropriate and I may bring further amendments in that regard. I say this as a vote of confidence in the Minister and her Department in having brought forward the legislation. However, it would be appropriate to make provision that is not counter to the provision or requirement in the audiovisual media services directive for regular three-year reviews but may, in fact, be complementary to it. I reserve the right to come back on that initial point in particular.

As regards the consultations, unfortunately, there has been inconsistent practice in the context of consultation periods. We know, for example, that consultation periods have happened at Christmas or in other holiday periods. Many consultations happen in August and December. That can create situations where persons are not given adequate opportunity. I sought notification in advance because, having previously worked in civil society for 15 years and made a lot of submissions, I know it is arduous. It takes time. It is a significant burden to give opinions. For civil society, NGOs and members of the public to engage in processes is, in itself, quite burdensome. People need to find time on Saturdays or Sunday evenings and things like that. That is why I think it is good to put this in context. This is in no way to impinge the bona fides of the Minister or the intentions of the commission, but I need to press those amendments because they relate to good practice and consultation and, unfortunately, we do not currently have consistent good practice in terms of public consultation in Ireland. Again, that is not a reflection on the Minister. I know that her public consultations have been appropriately timed but, unfortunately, that experience across the public sector is uneven.

I appreciate that the Senator sees the issue in terms of what is set out in the audiovisual media services directive. As regards the other amendments, as I stated, they are unnecessarily over-prescriptive for legislation and I will not, therefore, be accepting them.

I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 134 not moved.

I move amendment No. 135:

In page 56, line 20, after “available” to insert “, both online, on an accessible website, and physically, in a public place,”.

I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 136:

In page 56, line 21, after “person” to insert “for a minimum period of 30 days”.

Amendment put and declared lost.

I move amendment No. 137:

In page 56, line 24, after “purpose” to insert “, which shall not be less than 30 days”.

Amendment put and declared lost.

I move amendment No. 138:

In page 56, line 26, after “State,” to insert the following:

“in the first instance at least four weeks prior to the period designated by the Commission under subsection (2),”.

Amendment put and declared lost.

I move amendment No. 139:

In page 57, line 9, after “fit” to insert “and at least every two years”.

I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 9 stand part of the Bill."

Briefly, on the section, I wish to highlight three issues with intention for discussion on Report Stage. I spoke on the consultation periods, but I also believe there should be more regular reviews of the media service codes. I will be bringing amendments requiring that media service codes would be reviewed on a regular basis in order we do not have, for example, imbedded poor practices that are ineffectual or loopholes. We should not have a situation whereby certain actors end up with far more lenient media service codes than those who may be subject to later media service codes. In that regard, I will table amendments in respect of when media service codes and media service rules might be reviewed.

I also will indicate that in terms of public consultation, it is important that we clarify where the information on that public consultation might be, particularly as we are dealing with an online space. It would be important that it is not a situation whereby people have to check the commission’s website, for example, or others. There should be other proper measures in terms of how it would be communicated, possibly through the media services, which are regulated by the codes.

Lastly, I regret the fact that our amendments in respect of the use of algorithms profiling and microtargeting were not found to be in order. I again challenge this. It is important that we address conduct and processes that impact on minors, including the microtargeting, profiling and the gathering of the data of children. Yet another new example was given to me today in respect of educational services that children access, which harvest their data and are then perhaps open to commercial targeting. It is another example whereby it should not be the fact that an online educational service targeted at an age group of minors should be able to in any way, commercially or otherwise, share that information. I draw the Minister’s attention to how this is an issue that Senator Ruane and I successfully addressed in the Data Protection Act, one of the provisions of which has not been commenced. This would be an opportunity for the Government to address any concerns it may have concerns in relation to the wording of that section of the Act, which was agreed by the Oireachtas. It is a section of the Act but it has not been commenced. This is the opportunity to address that issue properly and appropriately in this legislation.

Again, I wish to indicate my intentions in relation to addressing these issues further on Report Stage.

On the three points, we have debated the first two in the last brief. The third point is an issue for the Bills Office, because I do not have any say over what is ruled out of order.

Question put and agreed to.
Section 10 agreed to.
SECTION 11

I move amendment No. 140:

In page 58, line 20, to delete “earlier or earliest” and substitute “later or latest”.

Amendment No. 140 seeks to ensure that when a person is making a complaint about two or more unrelated broadcasts, they are only limited by the date of the latest broadcast, not the earliest one. This is to ensure that complainants can seek to end harmful patterns in broadcasting over time. The current wording of the Bill is ambiguous in terms of the definition of “related” or “unrelated” broadcast might be. It seems to suggest that there might need to be an explicit link between broadcasts, for example, if they are part of the same television series, in order to benefit from a provision whereby they are only limited by the date of the latest broadcast. However, what about situations where, for example, a broadcaster permits problematic content in a clear pattern over time, which may come on over multiple shows or even channels? It may amount to a framing of an issue or a person. That content may be replicated in new debates, in debates about the debates, and debates about the responses to the debates. We have seen that and we know how it can happen. That is the concern.

At the moment it is not clear if situations where a topic, for example, or an issue that has been framed in a particular programme, with that framing then becoming a predominant frame that is then replicated across other programmes, would they be considered related broadcasts or not? Similarly, if, for example, we have a documentary one week that shows something inappropriate, a quiz show a week later that then follows up on it and then there is a phone-in show that chooses it as its topic of the day, are these programmes deemed to be unrelated, even though it is the same pattern of material? The current wording would suggest that the complainant would be forbidden from identifying an earlier broadcast if it was outside the time limit, which may be insufficient and lead to a large gap. We know that in actual effect, when something that is kind of harmful or offensive happens, the big dilemma everybody faces all the time is whether you should just ignore the bad thing because you do not want to give it oxygen and you hope it will just not happen again. In multiple instances, we all know that when something that is problematic arises, you know that if you respond, that will become another story. Therefore, you do not respond so it does not get engaged. Yet, sometimes when you ignore something and it is not addressed or made a subject of a complaint, then it happens again and again. The concern I have is that, for example, something that happens that a person chooses not to make a complaint about in the hope that it will not happen again, but then after sometimes even a considerable period of time, it gets dragged up and used again, thereby becoming a problem again. There is a concern that, as it is framed at the moment, that earlier instance, let us say, the spark that started a particular heated debate, topic or framing of an issue is deemed to have fallen outside of the period of relevance.

Section 11 of the Bill makes a number of amendments to section 48 of the Broadcasting Act 2009, primarily to extend the complaints process to video-on-demand services. It is important that the complaints system operated by an coimisiún contains some provision to limit the time period to which complaints relate in order that an coimisiún is not receiving complaints relating to broadcasts that took place years prior to the complaints. That is why section 11 of the Bill maintains the existing provision in section 48 of the Broadcasting Act 2009 that a complaint must be made not more than 30 days after a broadcast in the first instance.

I cannot accept amendment No. 140, as it would have the effect of enabling a complainant to complain about a broadcast for months or even years in the past, as long as the complainant groups the complaint with a complaint about a more recent broadcast. Addressing historical complaints about broadcasts from years gone by would not be the most effective use of the complaints procedure.

In other parts, we talk about the fact of the impact. There may be a short video that very few people saw and was not very highly viewed. It is an unfortunate and sometimes very unfair practice where there is a lot of trawling of people’s pasts, finding something and then using it in a negative way to try to use it and frame it against them or, indeed, to frame it in a different context or suggest a new interpretation. Unlike broadcasting material, television, radio and so forth, which tends to be there and then goes by the wayside or is there on the player for a while or wherever else or in the archives, effectively much of what is broadcast online remains very much effectively current, searchable and findable for a very long time. Presumably it is not a vexatious situation. If somebody is going to complain about everything, they will complain when it first happens. However, they may also not be aware of it having happened. I do not look at most things and I imagine most people do not. However, you may only become aware of something when it becomes amplified, increased or when a broadcaster with a much wider reach decides to take it up and give it airing.

It is appropriate that there be consistency in this regard. I do not accept that it is not an appropriate use. It is an unreasonable constraint in relation to a person making a complaint. Also, I would be worried that the provisions as set out at the moment could in fact increase the volume of work. If the concern is the volume of work the commission faces, I would be worried that the provisions as currently worded and suggested to be worded in the Act may increase the volume of concerns, because there is a situation whereby you must complain.

If someone does not complain, he or she loses the opportunity to do so. People in most instances will either just let something go or, because they will lose the opportunity to make a complaint later if they do let it go, will err on the side of complaining. In terms of time and volume of work, we might be creating more work in a situation where people feel that they must make a complaint every time there is something that may be of concern and where they cannot, for example, see if the matter is going to prove to be problematic in the long term or if it is going to escalate. For those who err on the side of not complaining because complaining is, in itself, so onerous, the Bill as currently worded penalises them.

As I said, amendment No. 140 would open up the complaints process to complaints relating to any broadcast made in the State as long as the complainant could group his or her complaint with a complaint made not more than 30 days after a separate broadcast. That is too wide and would just not be an effective use of the complaints procedure. I will not be accepting the amendment.

Amendment put:
The Committee divided: Tá, 8; Níl, 27.

  • Black, Frances.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Moynihan, Rebecca.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Doherty, Regina.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGreehan, Erin.
  • Murphy, Eugene.
  • Seery Kearney, Mary.
  • Ward, Barry.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Fintan Warfield; Níl, Senators Seán Kyne and Robbie Gallagher..
Amendment declared lost.

Amendment No. 141 is in the names of Senators Higgins and Ruane.

I move amendment No. 141:

In page 59, lines 6 and 7, to delete “as soon as practicable” and substitute “within 30 days”.

The amendment ensures that when a complaint about a broadcast has been dismissed, the complainant is notified "within 30 days". The amendment seeks to ensure that we do not see situations whereby complainants are left waiting for months to hear back about their complaint being dismissed where a decision may already have been made swiftly. It is to ensure that even if one's complaint is unsuccessful and the commission disagrees with the complaint, it at least notifies a person, so as not to leave him or her in a limbo that a complaint has been dismissed.

The amendment has a lot of merit. I would not like a complainant to be left waiting indefinitely so a time limit would ensure that a decision is dealt with and the person informed.

Similar to Senator Carrigy, I can see the merit of the amendment. However, I believe that the term “as soon as practicable” should be retained so as to avoid “30 days” becoming a standard time in which a complainant would be notified rather than an absolute limit. Although I do not accept the amendment today, I intend to return to the matter on Report Stage.

I thank Senator Carrigy for his support. I am happy that the Minister accepts the principle behind the amendment whereby if a complaint is dismissed that the complainant knows that and is not left waiting. Perhaps we could have an approach that simply mirrors the provisions where there is a different outcome to a complaint. That may be a way of addressing this matter as well. It is in that context that I withdraw my amendment with the leave of the House.

Amendment, by leave, withdrawn.
Question proposed: "That section 11 stand part of the Bill."

I wish to speak to an issue that has been ruled out of order but I will endeavour to bring back the issue in another manner.

Amendment No. 144, which was proposed by my colleague and I, sought to ensure that not just harmful content but harmful conduct would be addressed. I have had some constructive engagement with the Minister's officials on this matter. There is potential for harmful content to be clarified so that it includes, for example, content delivery and that there are mechanisms around how the content is purveyed and that that may be encompassed by the definition of harmful content. Amendment No. 144 sought to add harmful "conduct" alongside harmful "content". I am now hopeful, having engaged with the Minister's officials, that we may be able to find a language within "harmful content", which clarifies and makes clear that things like, for example, recommender system algorithms and others can be addressed.

Progress reported; Committee to sit again.
Cuireadh an Seanad ar fionraí ar 6.30 p.m. agus cuireadh tús leis arís ar 6.50 p.m.
Sitting suspended at 6.30 p.m. and resumed at 6.50 p.m.
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