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Joint Committee on Tourism, Culture, Arts, Sport and Media debate -
Wednesday, 19 Jan 2022

EU Digital Services Package and the Online Safety and Media Regulation Bill: Discussion

This meeting has been convened to discuss the potential interplay between the EU digital services package and the online safety and media regulation Bill. I welcome officials from the broadcasting and media division of the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media. Unfortunately, they will only be joining us in committee room 1 remotely via Microsoft Teams. I welcome Ms Tríona Quill, assistant secretary, and her colleague, Mr. Ciarán Shanley, senior policy analyst. I also extend a warm welcome to the officials from the Department of Enterprise, Trade and Employment, who will be joining us remotely as well. We have Ms Sabha Greene, principal officer with the digital economy policy unit, and her colleagues, Mr. Eoin Cuddihy and Mr. Mark Dugdale.

The format of the meeting is such that I will invite the officials attending on behalf of their respective Departments to make their opening statements, which will be followed by questions from my colleagues. As the witnesses are probably aware, the committee may publish their opening statements on its website following today's meeting.

Before I invite our witnesses to deliver their opening statements, which will be limited to five minutes apiece, I wish to explain some of the limitations in terms of parliamentary privilege and the practice of the Houses regarding references that witnesses make to other persons in their evidence.

The evidence of witnesses who are physically present or who give evidence from within the parliamentary precincts is protected pursuant to the Constitution and statute by absolute privilege. However, witnesses today are giving their evidence from a location outside the parliamentary precincts and, as such, may not benefit from the same level of immunity from legal proceedings as a witness giving evidence from within the parliamentary precincts does. Witnesses may consider it appropriate to take legal advice on this matter.

Witnesses are also reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name, or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the person or entity's good name. If a witness's statement is potentially defamatory in relation to any identifiable person or entity, he or she will be directed to discontinue the remarks and it is imperative that he or she would comply with any such direction, which I know you all, of course, would do.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against any person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House campus to participate in our public meeting today. I cannot permit any member to attend if outside that constitutional requirement. Any member who intends to attend from outside of the precincts of the Leinster House campus will be asked to leave the meeting.

I ask members and witnesses to please identify themselves when contributing. This is for the benefit of the Debates Office staff in preparing the Official Report. I also ask everyone to mute their microphones when not contributing to avoid background noise and feedback. When witnesses and members wish to contribute I ask that they use the raise hand facility. I remind those joining today's meeting to switch off their mobile phones or put them into silent mode.

After all of that housekeeping, which I am sure attendees found riveting, I will move on to the most important part of today's meeting. I ask Ms Tríona Quill to deliver her opening statement.

Ms Tríona Quill

I thank the committee for the invitation to participate in this meeting. The recently published online safety and media regulation Bill is an important milestone in the regulation of media and online services in Ireland and across Europe. I hope today’s exchange will be of assistance to the committee in further scrutinising its wider EU legislative context, including in relation to the EU's proposed Digital Services Act.

I would first like to reiterate the appreciation of the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin, for the thorough pre-legislative scrutiny work carried out by this committee. A significant number of the committee’s recommendations are addressed by the Bill and the Minister intends to address a number of others as the Bill passes through the Oireachtas, including in relation to an individual complaints' mechanism.

The Bill has a number of key features. It will provide for the implementation in Irish law of the EU’s revised audiovisual media services directive. This forms the foundations of much of the Bill and provides that Ireland will regulate for the whole of Europe certain online platforms and media services established here. The Bill will also provide for the dissolution of the Broadcasting Authority of Ireland and the transfer of its remit and staff to be part of a new multi-person media commission. The Bill provides for the provision of a modern and robust suite of investigative, enforcement and sanction powers to the commission, and the creation of a new regulatory framework for online safety, to be overseen by an online safety commissioner. This will allow certain categories of harmful online content to be addressed through risk-based systemic regulation and binding codes. The Bill provides for the updating of the rules applicable to television broadcasters and video on-demand services to reflect changes to the way we consume these services.

A key driver behind the online safety and media regulation Bill is the implementation of the audiovisual media services, AVMS, directive, which requires the establishment of a new, robust and adaptable regulator. As committee members are aware, the Digital Services Act is currently being negotiated at European level and will address a wide range of issues, from illegal and harmful online content to consumer rights issues such as the availability of illegal goods on online platforms. Negotiations are being led by the Department of Enterprise, Trade and Employment on Ireland’s behalf. The Digital Services Act is, of course, not yet finalised and it is important to note the audiovisual media services directive will not be replaced by the Digital Services Act. Rather, it is explicitly recognised in the proposed text of that Act as complementary to it.

Therefore, the requirement to transpose the AVMS directive remains and it is important that this is done as soon as possible through the enactment of the OSMR Bill, in light of the infringement proceedings that are currently under way.

The Digital Services Act, DSA, envisages the creation of networks of digital regulators at both EU and national level. These will provide the framework for enforcing both the DSA and the raft of digital legislation that is currently under development or coming down the tracks over the next decade to safeguard European citizens and support European enterprises. Work is ongoing in scoping out the appropriate regulatory structures in Ireland to implement the DSA and this too is being led by our colleagues in the Department of Enterprise, Trade and Employment.

As a horizontal legislative instrument, the DSA overlaps with the remit of a wide range of existing regulators and laws, including aspects of the OSMR Bill. These overlaps will need to be worked through when the DSA is finalised and is being implemented into Irish law over the coming years. In this regard, we will continue to work with our colleagues from the Department of Enterprise, Trade and Employment to monitor the regulation as it moves through the EU legislative process.

To conclude, I reiterate my hope that today’s meeting will assist in the committee’s consideration of the Bill in its wider EU legislative context. I look forward to answering members' questions.

I thank Ms Quill for a comprehensive statement. I now call Ms Greene to give her opening statement on behalf of the Department of Enterprise, Trade and Employment.

Ms Sabha Greene

I thank the Chair and the committee for this opportunity to update them on the EU digital services package. As the package comprises of two proposals for new regulations, the Digital Markets Act, DMA, and the DSA, I am accompanied by my colleagues who have led the Irish position in those two negotiations; Mr, Eoin Cuddihy is on the DMA and Mr. Mark Dugdale is on the DSA.

The negotiations on the two proposals are advancing in Brussels. The Competitiveness Council adopted its general approach on each of the proposals at its meeting on 25 November last and Ireland supported those two general approaches. Meanwhile, the European Parliament adopted its amendments on the DMA last month and is scheduled to vote on its DSA amendments tomorrow. Trilogue negotiations on the DMA started last week, while those on the DSA are expected to begin shortly after the vote tomorrow, probably early next month. While the EU legislative process is moving fairly fast, it should be borne in mind that the text of both the DSA and the DMA is still evolving. Adoption of both proposals is a priority for the French Presidency and we expect to have final instruments in the course of this year.

The committee has asked us to provide information for an assessment of the potential interplay between the digital services package and the OSMR Bill. As the committee’s report on that Bill points out, the DSA is the most relevant of the two proposals in the EU package when it comes to scope and provisions. With the committee's permission, I will focus my remarks on that proposal, although we are here to answer questions on both.

The Council’s general approach maintains many features of the original Commission proposal, notably, the horizontal approach, whereby the DSA must be read in tandem with sectoral legislation, such as the AVMS directive. Clearly, therefore, there are provisions in sectoral EU legislation that are specific to those sectors. The DSA's text names many of those sectoral laws, but it is not an exhaustive list, and allows for additional sectoral rules in future. The text is still a general framework with a systemic approach requiring providers to have certain systems in place with respect to content. The general approach also maintains the country-of-origin principle, where the applicable law and regulators are those of the country in which a platform or service provider is established. This supports the smooth functioning of the Single Market. It also retains the focus on combating illegal content, on the principle that what is illegal offline should be illegal online. When it comes to moderation of harmful content, this continues to be the responsibility of intermediary services providers, but is subject to risk assessments for the very large online platforms.

One of the main changes introduced in the Council’s general approach last November is to the enforcement model. The text now extends the powers of the Commission for the supervision and enforcement of the regulation with respect to the very large online platforms and very large online service providers. National digital services co-ordinators, DSCs, retain their enforcement roles with respect to the smaller sized platforms and providers, and will still have a role in working with the Commission in respect of the very large operators.

The DSC will also work closely with sectoral regulators in Ireland and with its counterparts across the EU. As a result, there are new elements to reinforce the co-operation between national digital services co-ordinators and the Commission to ensure a robust and co-ordinated approach to enforcement.

This significant amendment was agreed just last November and, therefore, the full practical implications are still being assessed by the Commission and the member states. In Ireland’s case, this Department of Enterprise, Trade and Employment is preparing a regulatory impact analysis, RIA, to assess the best way to meet the obligation to designate and equip a DSC here. Given the number of operators established in Ireland, this will be a significant role. As I mentioned, the Parliament is adopting its own amendments this week to the DSA, and we are still examining those.

In conclusion, while many features of both the DMA and the DSA are clear now, they are still subject to the trilogue negotiations change is likely. Since the publication of the original proposals in late 2019, our Department has engaged with colleagues in all relevant Departments, including the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media, and that will continue as we each progress the EU regulations and the online safety and media regulation Bill.

We look forward to further discussion on that opening statement. I will now move to my colleagues. A speaking rota has been circulated and I am sure they have noted that and know when to come in. I remind members they have ten minutes for both questions and answers. I would appreciate if they could stick to that as much as is possible. To begin, I would like to invite Senator Warfield to speak. He is not on the call, so we will move on to Senator Malcolm Byrne.

I thank Ms Quill and Mr. Shanley for their work on the OSMR Bill. It has been a difficult process and there has been much debate on it. I am certainly happy that the Minister has taken on board many of this committee's recommendations from our report.

I would like to focus on two key issues that the witnesses may be able to respond to. One is the timeframe linking the Bill and the outcome of the trilogue with regard to the DSA and our final objectives. What will the final picture look like? In the context of the timeframe, Ms Greene mentioned the fact that the European Parliament is voting this week on the amendments and that it is a priority for the French Presidency. We should work on the basis that we will probably see the DSA by the end of June. Obviously, at the same time, we are here dealing with the OSMR Bill.

The Minister has indicated, which I welcome, that she will set up a panel to look at the possibility of an individual complaints mechanism, because that will inform the debate here for the online safety commissioner. I am keen to find out from the Department's media side the timeframe that would be followed with regard to this expert group looking at the individual complaints mechanism being examined and reporting back, and then when we may consider the Bill as a Legislature. When it will come before this committee again, the Dáil and Seanad? Is it still reasonable - and I certainly hope that it would be - that the Bill could be enacted before the summer? I would certainly be disappointed if it is not, but that timeframe could be followed.

In terms of the DSC, I envisage that given we are now setting up a new architecture around a media commission and an online safety commissioner that those roles, as envisaged within the DSA, would form part of that new media commission. It does not make sense to set up a new structure when we are already setting up a new structure. Given the scale of what it will have to oversee, what kind of staffing arrangements will be required to ensure that it can operate effectively? I appreciate the DSA has not been finalised yet.

I believe the media commission, when it is set up, will be one of the most powerful regulators in the State and I want to ensure it will be adequately resourced.

Given this will be a dynamic space and we do not know what technology will deliver for us over the next number of years, is it the witnesses' view that we will probably come back regularly, if not annually, to update our legislation in this area? We will probably be giving the new media commission additional statutory powers to deal with new technologies, be they artificial intelligence or algorithmic decision-making. In all those spaces, decisions will be made at national and European level. Do the witnesses envisage that we will have to add statutory powers regularly to the media commission? I will stop at this point to allow our guests time to answer.

Ms Tríona Quill

I thank the Senator for his kind remarks. On the timeframe, I know the Minister is anxious that the Bill would progress as soon as possible. She has indicated publicly that the expert group she is setting up should report back within 90 days. That would allow for any amendments that may arise to be taken on Committee Stage in the Oireachtas. We will be working with our colleagues in the Whip's office and with Oireachtas staff to see how the Bill can be progressed in the most efficient way possible. I know the Minister is anxious this would happen as well. It is difficult to give a precise date. We have to work out some of the variables, but I know the Minister is ambitious to get this done as soon as she can.

Perhaps Ms Greene has some observations on Senator Byrne's questions.

Ms Sabha Greene

On the scale of what the digital services co-ordinator, DSC, will oversee, I will ask Mr. Dugdale to give a quick summary of exactly what its functions and role will be. Its main purpose is to implement the obligations that are in the Digital Services Act, which are due-diligence obligations on platforms and service providers, thereby putting systems in place. When we say a "systematic approach" that is what we mean.

On staffing, we are engaging most directly with the European Commission because we are trying to find out exactly what kind of skills the new DSC will need. It is already clear it will need data analysis skills, economists, lawyers and enforcement specialists. The Senator is absolutely right that we want to make sure it is adequately equipped. A key objective of the Government in implementing the digital services authority, DSA, is that the DSC is properly resourced and able to meet its obligations. One of the concerns is that there are several regulators in Ireland who will be looking for similar skills. At the same time, now that the Commission will have a role in enforcement, it may also be looking for the same skills, and it is probably a very tight labour market. We are looking at all those issues at the moment.

As to who will perform the DSC functions, our Department is conducting a regulatory impact analysis, which is due to be ready soon. This is to assist the Government in deciding where the DSC should be, whether we should start from scratch with a stand-alone body or whether we should assign the functions and additional resources to an existing body. Perhaps Mr. Dugdale will give a brief outline of what the DSC will do.

Mr. Mark Dugdale

The DSC, first and foremost, will be responsible for dealing with infringements of the systemic pieces within the DSA. The DSA itself sets out a number of due diligence obligations that are applied on a phased approach according to the reach of the platforms. They will also be responsible for assessing a number of bodies such as the trusted flaggers. These bodies would be responsible for having priority attention for the intermediary service providers.

Crucially for us , given that we are establishing a media commission that is going to deal with many of these issues anyway, does it not make sense that to leave it to the commission rather than looking at setting up an entirely new agency? My question related to the scale of the operation, particularly given the companies that are based in Ireland for which this regulator will have responsibility. The media commission will have a couple of hundred staff. I think we are going to be looking at several hundred, or more, staff, to be able to ensure that this operation functions effectively. We do not want to see a Data Protection Commission-type of situation.

Ms Sabha Greene

We are very clear that this has to be an effective body that can meet its obligations and can enhance our reputation. The commission is being examined in the context of the regulatory impact analysis. There are clear overlaps or similarities in the functions and in the type of people these bodies will be regulating. There is a lot of sense but without prejudging the outcome of the RIA, I would not say more than that at this stage.

I have a quick question for Ms Quill. I appreciate the Minister said this expert group on the individual complaints mechanism will report back within 90 days. When will that 90 days start? When will we see that expert group appointed. Second, and I am not asking for members to be named, but what type of person is envisaged and where will the membership of that group be drawn from?

Ms Tríona Quill

The Minister has indicated that she expects to set up the group in the coming days. It should be very soon. She will announce it certainly within the next week. Expertise will include legal expertise and expertise in managing complaints systems in other sectors, and knowledge of dealing with the platforms themselves, for example, with issues around children's rights. There will be a wide range of skills in the group.

I suggest the group engages with the Australian e-safety commissioner. Our committee is very favourable to the model operating there. It is something that would be useful for that group to explore.

I thank the Senator for his line of questioning and the officials for responding comprehensively. I will move now to Deputy Christopher O'Sullivan as it seems there is nobody present before him.

I thank the Chair and the witnesses for coming before us today and informing us on what is happening in regard to the DSA in particular.

I have two questions. The first relates directly to the DSA. It might potentially mirror what Senator Byrne asked about. Ms Quill stated, "The Digital Services Act, DSA, envisages the creation of networks of digital regulators at both EU and national level." In terms of what we are doing with the OSMR Bill and the online safety commissioner, how will they work and will they work in tandem? Could that be an opportunity to support and bolster the potential workload of an online safety commissioner, as Senator Byrne outlined, in particular if we go down the road of individual complaints mechanisms? Is there an opportunity to dovetail the systems and for them to complement each other or is there a danger of conflict between the two?

I apologise if this is a bit out of left field. I understand if neither of the witnesses has an answer to this, but I am thinking in particular of the Department of Tourism, Culture, Arts, Sport, Gaeltacht and Media. It relates to an incident I feel I have to bring up that happened during the week. I was contacted by a constituent who organised an event, which was an online vigil to commemorate the loss of Ashling Murphy. Unbelievably - I just cannot fathom how this could happen - the event was sabotaged by a man who managed to hijack the details of one of the panellists and joined the panel online. He exposed his genitalia and proceeded to masturbate. It was an horrific experience for all involved. This is the first opportunity I have had to bring this up. In many ways, this is the right place. Have we gone far enough in terms of the scope of the online safety media regulation Bill? The people in question spent hours with the Garda talking about the issue. In many instances the Garda was almost left powerless in terms of how it could address this. I understand if the witnesses do not have the answer, but perhaps it is something that could be brought back to the departmental officials. Does the OSMR Bill have the scope to deal with that type of disgusting, despicable behaviour, and will the online media regulator have the power and the clout to be able to clamp down on that type of thing? They are my two questions.

Ms Tríona Quill

In terms of the network of regulators, as my colleague, Ms Greene, pointed out, the DSA is a very wide piece of legislation. It is what is called a horizontal measure. It deals not just with content, as such, but also with issues of consumer protection like illegal goods being for sale online etc. I imagine a number of regulators need to be considered in round C. It may not be one single regulator that has any responsibility under the DSA. Those are the sorts of issues our colleagues in the Department of Enterprise, Trade and Employment are teasing out to see what regulators have any role under the DSA and who will ultimately be the digital services co-ordinator. A number of regulators will be involved in one way or another in the DSA and future legislation. Increasing co-operation across regulators is going to be an important feature in future for us all to look at.

In terms of the issue raised about the Zoom call, the Deputy will understand I am not familiar with the detailed circumstances but, in general, services like Zoom can potentially be designated by the media commission to be regulated. As the Deputy is aware, the framework is that video-sharing platforms automatically come within the scope and then the media commission can designate other platforms based on their risk profile.

Something like a videoconferencing platform is potentially in scope there. There will always be a role for the Garda. If a matter is criminal in nature, it will primarily be for the Garda to address. Our legislation will provide additional tools that are available to ensure platforms are doing all they can to minimise illegal or harmful content on their services. At a systemic level there are things within the scope of the legislation that would be helpful.

I thank Ms Quill. Does Ms Greene have anything she would like to add to that?

Ms Sabha Greene

I have just one small point, which is to say that one of the main objectives of the Digital Services Act is to enhance co-operation, both across the EU, between the 27 digital services co-ordinators with the Commission, but also within each member state because it recognises that the landscape of regulating illegal content is quite complicated. There are different kinds of illegal content. There is stuff that is criminally illegal like terrorist content, which is enforced by bodies such as the Garda, and then there are matters that are civilly illegal like defamation, defamatory material or the infringement of copyright. Each one of those is assessed and enforced in its own way. In bringing forward the proposal for the DSA, the Commission was aware there could be gaps as a result in people working together within a member state. A very important role for the new digital services co-ordinator will be to develop relationships with all of the sectoral regulators and ensure there is good exchange of information and co-operation.

I welcome the witnesses. My first question is to Ms Quill who was with us during the pre-legislative scrutiny of the online safety and media regulation Bill. She outlined that the European Commission initiated infringement proceedings. Will she provide the committee with an update on the proceedings against Ireland?

Ms Tríona Quill

We are at the stage where the European Commission has given a reasoned opinion that Ireland may be in breach, so the next stage, should the Commission so decide, would be to go to the European Court of Justice. It is not the first step towards fines, but it is to initiate the process that could result in Ireland being fined. We are concerned. We have been in contact with the Commission in regard to where we are in the legislation and the progress being made, but we are conscious that it really wants to see Ireland transposing very soon, and that is a factor that brings an additional urgency to progressing the Bill through the Houses.

In terms of the importance of this next legislative session, I am sure the Minister has prioritised it as part of the Government's work.

It was interesting to listen to what Ms Greene said about digital service co-ordinators in Ireland and how they will be established and funded through the European Commission. Is that correct? Will she give us some more information around their establishment and also how they will work with sectoral regulators in Ireland? In addition, will she give examples on how we currently regulate service providers, how this directive will allow services that are established in Ireland to be overseen by Irish regulators for the whole EU, and what type of infringement proceedings we can pre-empt once this directive is enacted?

Ms Sabha Greene

On the funding, again, that is something we need to scope out. In conversations with the Commission, it has not ruled out that the digital services co-ordinator, DSC, could be funded by a levy, a little like as is proposed for the media commission, provided, obviously, there are proper safeguards in place to ensure the DSC is entirely independent. I may not have entirely understood about how we regulate at the moment. The Digital Services Act, DSA, is, of course, premised on the country of origin. That means the DSC will have responsibility for dealing with any platform service provider that is established and has its headquarters in Ireland.

As I have said, there has been a slight change in the enforcement model, which means the Commission will have a role in investigating and enforcing against the very large online platforms. Clearly, some of those platforms will be the ones that are in scope or that are based in Ireland. That does not mean the national DSC will be out of the picture. It will still have a role in supporting the Commission, for example, perhaps, organising search warrants and things like that. There will be a co-ordination role there, so there is still a good piece of work the DSC will have to do here.

The DSC will have some functions it must carry out itself, including enforcing the due diligence obligations in the DSA, investigating all of that, and, of course, receiving complaints that come from users in other member states. Once the complaint is against a platform or a service provider that is established here, our DSC will be in the frame for that. As I said, it will have to establish connections almost immediately with all of the sectoral regulators that deal with different aspects of illegal content, be in a position to ensure it is aware of any action that any of those sectoral regulators are taking, and be able to pass that information on to the DSCs in the other members states. There is going to be quite a bit of information sharing across the network of the EU member state DSCs. That, in itself, will probably be quite a job. I hope that answers the Deputy's question. Perhaps he was looking for more aspects.

We are all aware of Ireland's tech and online platform presence that has been established over the years. How does that compare with our EU counterparts in terms of the volume of work that will have to be undertaken by the digital service co-ordinator here? I know a regulatory impact analysis is being undertaken. Will that feed into how this is put together? I ask Ms Greene to provide some information on that.

Ms Sabha Greene

I should say that because the text of the DSA is being negotiated, the actual breakdown of what tasks will fall to the national DSC and what tasks will fall to the European Commission is not entirely clear. We cannot say with certainty at this stage exactly what the allocation of duties and responsibilities is there. It is clear the amount of work that will fall to the Irish DSC will be greater than to any other member state DSC by virtue of the fact of what we have based here. That is fair to say. I should also say the regulatory impact analysis is going to take the traditional iterative approach, that as we know more information, we will factor it in.

In the first place, we are trying to get a decision about the most appropriate home for the DSC so that we can work on equipping it. Obviously, it will make a difference on whether we are assigning functions to an organisation that is already in place or, as is the case with the media commission, one that is not in place but is planned, or if we are starting from scratch. I am afraid to say that all of those things are still to be worked out.

I thank our guests for attending. I know the painstaking work they have done. It really is painstaking. Some of it is mind-boggling. I have a few questions. I presume there will be a lot of crossover between the Digital Services Act, the Digital Markets Act, DMA, and our own online safety and media regulation Bill. How confident are the witnesses that the big platforms can be reined in? They spoke about a level playing field with small businesses. I looked up some of the figures. We are dealing with the likes of Apple, Facebook, Google and Microsoft, which have market values of $2.62 trillion, $937 billion, $1.93 trillion and $2.5 trillion, respectively. They are very powerful platforms. Will the regulation really get to them? These guys have super legal teams. What are the witnesses' views on that? Second, do we have a list of gatekeeper companies in Ireland? What is our definition of that? Third, Article 33 of the Digital Services Act is intended to grant researchers access to key data on the operations of the very large online platforms. Who are the researchers here? Do we know if this will be done country by country?

I am interested in hearing the witnesses' observations on the protection of whistleblowers. It is very important. The transparency of meetings with gatekeepers should be on show as well.

Ms Tríona Quill

On overlap between the online safety and media regulation Bill, the DSA and the DMA, the DSA is not going to replace the audiovisual media services directive, AVMS. We still have to transpose that, and that is what the online safety and media regulation Bill is doing. The European Commission sees them as complementary. It is not to say that there will not be some areas that will need to be teased out to provide absolute clarity about how they are being dealt with, but if something comes under the AVMS but not under the DSA, it does not mean it will suddenly stop having effect. They are intended to be complementary systems.

I would also say that we have sought to design the online safety and media regulation Bill so that it is as flexible as possible. As the Deputy is aware, it sets out the framework, but a lot of the detail is going to be worked through online safety codes the media commission will put in place. The designation of services other than video-sharing platforms that are automatically in scope will not happen until the media commission is established. It means there is a bit of flexibility in terms of the online safety and media regulation Bill to allow for changing circumstances so that codes and designation can reflect changes that happen over time.

I would say that some of the syncing between some of the different pieces of legislation will happen in implementation by the media commission and by other regulators rather than necessarily all through primary legislation, for example. There will have to be close working together between regulators and various regulatory regimes, but the devil will be in the detail.

The question of the other platform, gatekeepers, data and whistleblowers might be more for Ms Greene.

Does Ms Greene wish to come in?

Ms Sabha Greene

The first thing I would say about enforcement and dealing with the large companies is that for us, it is very important that whatever structures we set up in regulation have robust powers and the resources to effect those powers. It also highlights the importance of the co-ordination role of the DSC because it will be important that when it is dealing with other regulators on the sectoral side, there is easy flow of information. This is likely to need to be supported by statutory provision. We must also bear in mind that the Commission has a role in enforcement in the DMA and the DSA. It is not just our national body. We have the heft of the Commission as well.

I know there is horizontal legislation in Ireland and at EU level on the protection of whistleblowers. This is something of which we must be mindful as we implement the DSA and the DMA. Mr. Cuddihy can give the committee a quick update regarding the definition of gatekeepers while Mr. Dugdale will speak about the vetted researchers.

Mr. Eoin Cuddihy

Regarding the list of gatekeeper companies that are referenced in the DMA, the Commission had selection criteria in its original proposal. This is in chapter three of the DMA proposal. If a company meets the selection criteria, it is duly obliged to notify the Commission that it meets them and the Commission designates it as a gatekeeper and publishes this list on a yet-to-be-determined Commission forum. The Commission has indicated that it believes that there will be ten to 15 gatekeeper companies operating in Europe. The Commission did an exercise and knows which companies will be designated as gatekeepers but it has not informed member states publicly which companies will be among the ten to 15 gatekeeper companies designated under the DMA. The Commission and the companies themselves have a good idea but we are not in a position to name check ten to 15 companies until that official list is published. Until that list is published, we will not know with any degree of certainty. We have an idea of which companies will be designated but, again, we will not know until that list is published by the Commission. That list is due to be published within six to nine months of the regulation coming into effect so we will know very shortly.

Regarding the obligations, the objective of the DMA is to make digital markets more contestable. Nineteen obligations will be placed on companies designated as gatekeeper companies. We believe these 19 obligations are a very good place to start to ensure there is more competition with digital markets but also competition for digital markets. Hopefully, that addresses the Deputy's concerns.

Regarding whistleblowers, as Ms Greene mentioned, trial negotiations are under way. One of the amendments being proposed by the European Parliament is that the DMA directly reference the whistleblower directive. Again, it is not a proposal we would have discussed at Council level but we will discuss it with relevant colleagues overseeing this directive regarding its compatibility with the DMA. It does feature in the European Parliament amendments on the DMA, which we should know more about in the coming weeks.

Hopefully, that addresses the questions on the DMA. I might pass back to Ms Greene.

Does Ms Greene have more to contribute?

Ms Sabha Greene

Mr. Dugdale can answer if the committee needs a bit on the vetted researchers in the DSA

Mr. Mark Dugdale

The vetted researchers are limited academics. It will be people of an academic persuasion who will be considered for designation for that role. As Mr. Cuddihy said regarding the DMA, we know that some committees of the European Parliament have suggested that this be widened to civil society groups and NGOs but until we see the outcome tomorrow, we will not know whether those amendments make it to be discussed.

At the start, there was a discussion about the DSC. One of the responses was that the media commission was being examined as the possible co-ordinator. If this turns out to be the case, is it provided for in the Bill or will additional legislation be required to give the media commission this function?

I think Ms Quill is offering on that one.

Ms Tríona Quill

Ms Greene is examining the DSC. I can come in afterwards if need be.

Ms Sabha Greene

My understanding is that wherever the DSC goes, it will need its own legislation.

My question is about disinformation, or fake news, for want of a better word. Is that included in the Online Safety and Media Regulation Bill? Do we need to legislate for it or will it be covered by the DSA?

Ms Tríona Quill

Disinformation is not covered by the Online Safety and Media Regulation Bill. It is addressed under the DSA. There is a particular approach to it about which Ms Greene or one of her colleagues might wish to elaborate.

Ms Sabha Greene

I will go to Mr. Dugdale because he is the expert on the content in the DSA.

Mr. Mark Dugdale

Disinformation is mentioned in the DSA. It is mentioned in the recitals three times. It is not going to be dealt with directly.

If it is not going to be dealt with directly, one would imagine that it would be important that it be covered in the Online Safety and Media Regulation Bill through provisions or sanctions relating to disinformation.

Mr. Mark Dugdale

While it will not be dealt with directly, under the DSA very large online platforms - obviously these are the service providers with the greatest reach - must carry out risk assessments of the risks their services pose to society and individuals.

Risk assessments have to be followed up with risk mitigation processes and those need to be audited. Disinformation can, or should, be dealt with through that process, although it is not directly involved. The auditors will not necessarily have the power to force the intermediary service providers to include that, but if they are able to show that those risks are present, it would be up to the DSC, in supporting the Commission under the new arrangement, to begin infringement proceedings on that basis.

The Digital Services Act also provides that issues can be dealt with by codes of conduct. At European level, there is already a code of conduct on disinformation. I do not have a huge amount of detail on what that is, but it is dealt with in that respect. When I say it is not dealt with directly, it is dealt with indirectly through these other means, which the Act sets out in this sort of systemic or general framework approach it has. I hope that helps.

I have further questions and I apologise if they were asked when I was in the Chamber. Will the witnesses provide some details on the provisions within the DSA for an individual complaints mechanism? What is covered? How will it work? Who and what is covered by it? That has been a major omission in the online safety Bill in its present form. We have heard about the importance of its inclusion from all the stakeholders who have come before this committee. Will the witnesses also clarify how harmful and illegal content will be considered under the online safety Bill? How will this work in practical terms?

Mr. Mark Dugdale

I can certainly respond to the first question, although having said that, it has gone completely out of my head. Will the Deputy repeat it?

It was about an individual complaints mechanism.

Mr. Mark Dugdale

I thank the Deputy. I am on track now. There is no individual complaints handling mechanism, in which the DSC would be involved. There is a due diligence obligation that applies to platforms of a hosting service nature and above; therefore, hosting services, online platforms and very large online platforms, VLOPs, would be required to have in place an internal complaints handling system. The DSCs would be responsible for ensuring those systems were working. They would not be responsible for dealing with individual complaints.

The one area where the DSA gets involved with individual areas of illegal content is through a provision, which states that competent authorities in the member states in which something is illegal can act and here one needs to bear in mind that the definition of "illegal content" in the DSA is anything which is illegal in any member state or under European harmonised law. If a particular piece of hate speech was illegal in Germany and being disseminated by Facebook, the German authorities would be able, under the Act, issue a notice to Facebook to take down that material.

Facebook would then be obliged to respond to that notice. This is an area in which the company has to strike a balance between the rights of the provider of the information and the right to freedom of expression, and it would then decide whether to take that down and would have to notify the German authorities; first, as to whether it had taken it down or, second, that it had not taken it down and did not intend to do so.

The German authorities would then have the responsibility under their law to take legal action in Germany to have that content removed, and there would be very specific territorial scope to do so. If something is illegal in Germany, but not in the vast majority of the rest of the Union, it would not need to be taken down elsewhere. I hope that helps with regard to the way the DSA deals with individual areas of illegal content. However, the Act does not allow for individual complaints to be made to digital services co-ordinators per se.

Ms Tríona Quill

With regard to the OSMR Bill and how criminal and harmful content is being dealt with, I will ask my colleague, Mr. Shanley, to come in, if there is still time.

Mr. Ciarán Shanley

Illegal and harmful content is considered in the Bill under the moniker of "harmful online content". The Bill sets out a Schedule of the criminal offences by which harmful content can be spread. That includes the recently updated offences under the Harassment, Harmful Communications and Related Offences Act 2020 on image-based abuse, harassment and the like.

There are also three to four categories of other content that relate to the promotion of eating disorders, suicide, self-harm and cyberbullying content. That content is not related to criminal offences and as such, is subject to a risk-of-harm test, which relates to threat to life or reasonably foreseeable risk of harm to a person's physical or mental health. That is the content and scope of the OSMR Bill and this relates to the content and scope of the AVMS directive as well.

On top of that, the media commission will devise online safety codes, which will set standards and obligations for how the regulated online services, including video-sharing platforms, deal with this kind of content, including preventing its availability and when it does become available, how the commission deals with it, how complaints systems work and how it reports on this to the regulator.

When we had stakeholders and some of the major social media companies in, the general consensus was that action is rarely taken on harmful content and some of the issues Mr. Shanley mentioned. In the absence, thus far, of an independent regulator or complaints mechanism in the Bill, how will that work, in practice?

Mr. Ciarán Shanley

The Bill sets out a systemic regulatory framework. Through the online safety codes, online services will be obliged to take action on these categories of harmful online content. It is not suggestive. This can range from the commission identifying an issue with the availability of certain content and the platform having to take appropriate measures to deal with it or the commission setting down that the platforms have to take very specific measures and handle complaints in very specific ways. It can go from the commission obliging best efforts, to it saying a specific thing must be done in certain instances.

This allows for the development over time of different measures and changes.

Will there be sanctions if they do not?

Mr. Ciarán Shanley

Yes, if there is a breach of their obligations under the online safety codes, the commission can appoint an authorised officer to investigate the suspected breach. Those officers have significant powers, including the power to seek search warrants and the power to take information under oath from individuals. The authorised officer then reports to the commission and the commission considers whether on balance it believes a breach has occurred. If it believes a breach has occurred, it can pursue the imposition of a financial sanction of up to €20 million or 10% of turnover. On top of that, if it believes the breach continues to occur after that, it can issue a notice to end the breach. If the breach still occurs, it can pursue criminal sanctions against senior executives of the platform and can seek court orders to block access to the platform. It is a graduated approach which can potentially reach fairly high financial sanctions. If the same breach continues, it can reach the point where the service is blocked. That is a very blunt instrument, but when that stage is reached the platform will have been wilfully non-compliant for a long time.

I welcome all the witnesses. I apologise that I was in and out of the meeting and might have missed some questions which were asked already. Will the staff to be put in place for the DSA be sufficient? The Digital Markets Act proposes to establish a level playing field across the Single Market and globally regarding innovation and growth. Are businesses in Ireland ready for this? If jobs are displaced due to the advancement of artificial intelligence, AI, in the industry, it is important for us to upskill and re-educate any of those people who lose jobs. Are we ready for this?

Unfortunately, we have not yet received recommendations from the Future of Media Commission. We need to get assurances that the implementation of those will be copper-fastened by the national digital strategy as they cut across each other.

On the possibility of legislation being introduced, it was said that at EU level there are codes of conduct relating to disinformation. Is that sufficient or does Ireland need to introduce further legislation? Are there enough safeguards regarding disinformation? Over the past 18 months we have seen a lot of disinformation online.

Ms Sabha Greene

On the staffing to meet the obligations in both the DSA and DMA, the Government is committed to ensuring that the regulation here is adequately resourced, is robust, works well and is fit for the purpose for which it is intended. Our RIA process, which will be ongoing as the two European texts evolve, is looking at resources and ensuring we have the right skills and adequate numbers.

The Senator asked if businesses are ready for the DMA. Mr. Cuddihy might correct me if I am wrong. My understanding is that the objective of it is to open up markets so that small and medium-sized businesses can compete with the larger service providers. The idea is that more jobs would be created for those businesses if they can compete more and scale up.

From the moment these proposals were put in place, there has been ongoing consultation with businesses. I hope they consider that they are being informed and prepared for the impact of these.

I think the Senator may have had a third question which I missed.

I was asking that the implementation of any recommendations coming from the Future of Media Commission be copper-fastened within the national digital strategy. Ms Greene spoke about jobs in small firms which is what I am really driving at. Are Irish firms ready? The Minister of State, Deputy English, recently introduced significant funding to support online trading and getting firms on that platform, particularly during the Covid pandemic. Has enough been done? Are our firms IT-ready for this so that we can be competitive in the EU market?

Ms Sabha Greene

There is an EU digital transition fund of €85 million over a few years, which will be funded from the EU through our national recovery and resilience programme. The terms of reference of that are being scoped out at the moment but the idea is that it will help businesses to make the transition to digital either in their own processes or however else they need to do digitalise. That is being looked at and there are other schemes. We can get the Senator more information on all the relevant schemes such as the trading online voucher. We can follow up on that.

I may leave the question on the recommendations from the commission to Ms Quill.

Ms Tríona Quill

As the Senator may know, the report of the commission has not yet been brought to Government and so we are not in a position to comment on that.

The Senator asked if there are enough safeguards to deal with disinformation. It is recognised that disinformation is probably one of the most challenging types of harmful content to regulate effectively for because it involves so much rights balancing. People have the right to freedom of speech and there are other concerns that must be balanced against the undoubted harm being done by widespread disinformation. The view across Europe was that something should be done at European level to take a unified approach on it. Mr. Cuddihy has set out the mechanism under the DSA where this might be addressed. It is a matter of seeing how effective that regime is in practice over time and seeing what additional measures might be required at European level.

If one thing has been highlighted, it is that we need to see the report of the Future of Media Commission in the public domain. We are discussing the effect that this has but we have not seen the report. It is important that it be published immediately.

I do not believe that Deputy Griffin is on the line because, like me, he is supposed to be in the Dáil Chamber.

At this stage most questions have been covered. Unfortunately, I come at the end of all these debates. I concur with what Senator Carrigy said. Can Ms Quill give any insight as to when the report of the Future of Media Commission will be forthcoming?

Ms Tríona Quill

I am afraid I cannot. Other than what the Minister has said to date on the matter, we do not have an update.

When answering questions from Senator Malcolm Byrne, Ms Quill touched upon the advisory group that the Minister is putting together. Does she know what sort of expertise the Minister will bring into that advisory group? One of the most important outcomes from the committee's recommendations was, and continues to be, the individual complaints mechanism.

There is a real sense among committee members from our months and months of meeting stakeholders that this is really crucial and critical to the success of this Bill and, more important, the commission. Without that it will not have the same gravitas or will not be able to enforce the same way in terms of regulations. On the advisory group, who are the experts and what is their expertise to be in? Do the officials know what the Minister intends? It was said it would perhaps be in the coming days and we have a 90-day turnaround on the report from that. Will the officials refresh our knowledge of who the members of that advisory committee might be?

Ms Tríona Quill

The Chair will understand I do not want to anticipate any announcement by the Minister in this regard but in broad terms the group will draw on legal expertise, expertise in online safety, especially regarding children, expertise around how complaints mechanisms have operated in practice in various sectors and in dealing with platforms and so on in relation to that matter. Those are broadly the sort of areas the Minister has been looking at. As I said, she hopes to make an announcement in the coming days.

The timeline for that is, as I said, 90 days. My final note on all this is that this is crucial and critical to the success of this Bill.

I thank the officials. They have all been very willing to engage with us and to do so very comprehensively. I thank them for their work on this extraordinarily and incredibly important endeavour. This will certainly go down in history as leading the way globally in protecting citizens online.

Our next public meeting will be with representatives from RTÉ, our national broadcaster.

The joint committee adjourned at 2.52 p.m. until 11.30 a.m. on Wednesday, 26 January 2022.