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Seanad Éireann debate -
Wednesday, 16 Oct 2019

Vol. 267 No. 12

Children's Digital Protection Bill 2018: Committee and Remaining Stages

I would like to say a few words at the start of the debate. While I welcome the Bill and appreciate a great deal of work has gone into it and there are considerable amendments to it before the House, I want to outline to the House the position the Government has taken in recent months. As Members will be aware, I recognised earlier this year that the time for self-regulation was past and that we need to introduce online safety regulation for harmful content, that I intended to establish an online digital safety commissioner to set out codes of practice that should apply and to create enforcement powers for the online digital commissioner and, in addition, to provide for third party complaints to be heard by that online safety commissioner.

In April, I had consultations on that legislation and we are now at the detailed drafting stage of it. I intend to have the heads of the Bill to present to Government and to the Oireachtas committee by Christmas. There are many elements in Senator Freeman's Bill which will be picked up and reflected in the Bill I am drafting. It will go considerably beyond it in that it will also embrace the transposition of the legislation for audiovisual platforms, which will also be embraced by the legislation. It will also seek to remove some of the difficulties the Attorney General has drawn to my attention regarding the Bill before us today. Some of those are the open-ended way in which additional harmful content could be prescribed under the legislation. I have been advised that would not be acceptable. I have also been advised that some of the provisions that would allow a person to be tried in an Irish court for the breach of certain foreign laws would not be acceptable.

It has also been brought to my attention that best practice would suggest that initial complaints should go to the platform before they would go to the online safety commissioner for adjudication. There are other issues that may arise with the Bill that is being submitted in that the establishment of a body could require funding and that would pose other questions for the Bill.

While there are definitely issues with the legislation as presented to the House, I absolutely support the intention of the Bill. I will transpose very significant elements of it into the legislation my Department is actively developing at present. I assure the Senator that no time will be lost in bringing forward legislation to deal with the issue that has been presented here in the way I am advised will be legally most robust. I am not opposing what the Senator is proposing but outlining the work I have been undertaking and continue to drive on within the Department.

May I respond to that?

When each amendment is moved Members, especially those who moved the amendment, will have the opportunity to speak. On this occasion, Senator Leyden indicated first.

I welcome the Minister, Deputy Bruton, to the House and commend Senator Freeman on bringing this Bill forward. I think we are all singing from the one hymn sheet in this particular regard, although my hymn will be sung before the Minister's because we intend to publish a Bill in the coming days to legislate for the establishment of a digital safety commissioner. That will happen very shortly. Fianna Fáil will support this Bill in principle but believes that the establishment of a digital safety commissioner is a more appropriate approach. In 2008, while in government, Fianna Fáil established the Office for Internet Safety. This office operated from the Department of Justice, Equality and Law Reform and its explicit purpose was to keep children safe from online harm. Sadly, successive Fine Gael-led governments have failed to resource and develop this office. This is very important legislation.

I remind the Senator that this is not a Second Stage debate.

I just want to put on record that we support the Bill; we are for it. We will publish our Bill in the coming days and I hope the Government will back it. I hope that, in light of all the Bills proposed, we get measures in this regard on the Statute Book as quickly as possible and before the general election.

That will be next week.

In response to the Minister, I know that some of the amendments will be ruled out of order because of the financial imposition on the Exchequer. I introduced the Children's Digital Protection Bill 2018 last December and I acknowledge Professor Mary Aiken, who is in the Gallery and who has aided and abetted me every step of the way. Yesterday we had a number of briefings which were really interesting. Two things keep coming up, over and over again. To address the first, I am talking about children; this Bill is not about online protection generally. It just relates to harmful content. The second thing that came up yesterday, which was quite interesting, was that not one of the major stakeholders appeared at our briefing. That says a great amount. They are not really interested in protecting our children from harmful content.

Harmful content is defined under section 3 of the Bill as "encouragement and incitement to suicide", "encouragement of any self harm practices"-----

I remind the Senator that we are dealing with section 1 at the moment. The Senator can respond on section 3 when we come to it.

Amendments Nos. 1, 2, and 7 to 9, inclusive, have been ruled out of order. I am aware of that and I accept it, but there are two other amendments about which I would like to talk when they come up.

The Senator will have an opportunity when we come to those amendments.

I welcome the Minister to the House. In his speech he briefly mentioned self-regulation of online companies. This weekend, my own identity was stolen. The person who stole my identity also used my identity and my profile to send two members of the public on my Facebook page some pretty horrendous messages. When contacted, Facebook's response was that it had removed a profile my friend reported because it did not follow its community standards. It said that it let the profile owner know that it had been removed, but not who reported it. That is what Facebook said. The person who stole my identity masqueraded as me for some time until he or she was caught. I have no recourse whatsoever to find out who that person is and, but for the two or three people who contacted me and told me of the content of what was sent, I have no notion of what was said in my name. I have had similar experience with Twitter, in a different guise. As far as I am concerned, these guys cannot be trusted to self-regulate.

Senator Freeman has taken a step here. I acknowledge the attendance of Professor Aiken. Her expertise in this area is renowned worldwide. We have to stop flip-flopping around on this matter. We have to move and move very quickly. We constantly hear tragic stories about young children. As Senator Freeman said, this is about children, but even adults can have their mental health affected by some of this stuff. I see Senator Noone nodding her head. I have seen some of the horrendous stuff that has been thrown at her over the past 12 months. Fair play to her, she has held her head high and I admire everything she did. This has gone too far. One cannot even phone Facebook. There is nobody to whom one can send an email. There is no human being people can contact to say that something wrong was done to them and that they want an answer. I was speaking to a senior counsel in this regard. At the very least, I should have recourse to find out who stole my name. I cannot find that out however; I have no access to that information. I do not want to make a Second Stage speech but-----

-----I need to put that on the record.

I understand that. We will move back to section 1.

Section 1 agreed to.

Amendments Nos. 1 and 2 in the name of Senators Freeman and Craughwell have been ruled out of order as they involve a potential charge on the Revenue.

Amendments Nos. 1 and 2 not moved.

Amendments Nos. 3 and 4, in the names of Senators Freeman and Craughwell, are related and may be discussed together, by agreement.

I move amendment No. 3:

In page 4, line 4, to delete “material”.

Amendment agreed to.

I move amendment No. 4:

In page 4, between lines 7 and 8, to insert the following:

“ “material” means material—

(a) whether in the form of text,

(b) whether in the form of data,

(c) whether in the form of speech, music or other sounds,

(d) whether in the form of visual images (moving or otherwise),

(e) whether in any other form, or

(f) whether in any combination of forms;”.

Amendment agreed to.

I will not move amendment No. 5, which defines "responsible person" in the Bill, as this is consequential on the amendment creating the e-safety commissioner.

Amendment No. 5 not moved.

I move amendment No. 6:

In page 4, to delete lines 8 to 10 and substitute the following:

“ “social media” means, for the purposes of this Act, an electronic service that satisfies the following conditions:

(a) the sole or primary purpose of the service is to enable online social interaction between 2 or more end-users;

(b) the service allows end-users to link to, or interact with, some or all of the other end-users;

(c) the service allows end-users to post material on the service;”.

Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.

Amendment No. 7, in the names of Senators Freeman and Craughwell, has been ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 7 not moved.

Am I supposed to make a comment on any of these?

The Minister may do so if he wishes.

With regard to section 3(4), I am advised that a Minister making regulations in that manner would not pass muster with the Attorney General.

The amendment to section 4 has been ruled out of order because of-----

The Minister is not referring to section 4.

I was referring to section 3(4).

Section 4 agreed to.

Amendment No. 8, in the names of Senators Freeman and Craughwell, has been ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 8 not moved.
Question proposed: "That section 5 stand part of the Bill."

I speak on behalf of my colleague, Senator Higgins.

She, along with Senator Ruane and I, welcomes the spirit and intent of the Bill. It is important that we are moving further towards legislating for technology and online content. As we know and the Minister and Senator Craughwell recognised, we cannot rely on self-regulation by tech companies. It simply does not give sufficient protection to children or others. I recognise, as many do, that the specific content referenced in the Bill is deeply damaging and requires regulation. My concern is in respect of other members of society, including vulnerable adults. I refer in particular to children with intellectual disabilities who have a different mental age from their chronological age and who may be impacted by harmful online content. Although I appreciate the need for a specific focus on children and the fact that the Minister for Children and Youth Affairs is engaging with this process, I am concerned that the establishment of a specific children's e-safety commissioner would risk leaving behind others who might be vulnerable, which may have a significant impact. Senators Higgins and Ruane previously raised a concern regarding commercial actors profiling and micro targeting children online. That is another important aspect of effectively regulating this space. I may table amendments on Report Stage to address the two matters I have raised.

Unfortunately, during my first year as president of the Teachers Union of Ireland, two sisters committed suicide in the north of the country within a couple of weeks of each other. There was a significant impact on the adults left behind, including the teaching staff at their school. The principal of the school made a valid point, which we need to take on board. He stated that on 1 September, children return to school until 31 June. For 24 hours a day, seven days a week, the principal of the school is, somehow or other, deemed to be responsible for them. He continued that the terrible thing about dealing with children and technology today is that it is to be hoped that parents make children do their homework when they come home, feed them their meals, allow them to watch television, send them to bed at a certain time, make sure they change into nightwear, wash their teeth, carry out their ablutions and do whatever else they are expected to do, but then they allow them into bed with the most lethal of devices in their hand, a smartphone, through which children can be subjected to all sorts of abuse from colleagues. I have been told by secondary school teachers in recent years that the punishment for a child in the bullying network is for their page or photograph not to be liked. In other words, the child is shunned and electronically sent to Coventry.

The Minister is a man of his word and is drafting a Bill to address these issues. This is an ideal opportunity to put our views on the record. Adults are affected by the damage done to children. Sadly, I hear far too often about tragic ends to what goes on online. I ask that the Minister give consideration to the multiple cases of children who have taken their own lives, which have been reported as death by misadventure rather than suicide. As a society, we must confront these things. We must be aware of the damage that is being done. I have suffered attacks online and there are times when I simply must turn off my phone for the benefit of my mental health. I know many members of the Government would prefer if I left it turned off all the time, but that is another story. We must broaden our approach on this issue and look at its impact across society.

Question put and agreed to.
Question proposed: "That section 6 stand part of the Bill."

My comments relate to the Bill generally to some extent. I welcome Dr. Mary Aiken, with whom I have had constructive dealings. I acknowledge the work of Senator Freeman on this issue. She is very passionate about it. I have discussed it with her on many occasions and I totally support the spirit and intention of the Bill. I do not know where it will all end in terms of what people will have to put up with online and how the Minister in his portfolio is expected to deal with the level of horrific content that exists.

I put up a positive tweet about the Taoiseach's polling performance and received more than 100 of the most negative comments, both personal and otherwise. I have not read most of them, but the most recent was a threat on my life. It asked whether I remember what happened to Jo Cox MP, and stated that I should be buried alive like the rest of my parasite colleagues. I do not care how many followers the person who sent that tweet has. It is a threat and should be taken down automatically by Twitter. I offer it as an example of my experience because I cannot keep track of the negative comments I receive. I know the Bill relates to children and they should be our primary concern, but even for adults, where will it all end? When a digital safety commissioner is in place, will he or she be able to cope with issues such as getting Twitter content such as that tweet taken down? I do not know. Is it a matter for the Garda? Arguably, it is a matter for the Garda when a comment such as that is made online.

The Minister has been very proactive and constructive since taking over his portfolio and I am heartened by his comments. He is working hard on these issues. When he states that he is taking into account some of the measures in the Bill, I know that is true and will happen. There is a wider debate in society about how we are willing to communicate with one another and what is deemed acceptable. We must recognise that we, as Senators, are leaders and that if we are vicious in our dealings with one another in the Chamber, that will seep into wider society. I acknowledge that my comments do not relate to the section, but I wished to make those points. I thank the Acting Chair for her indulgence.

I echo the comments made by Senator Noone. Harsh words are not acceptable in any setting, whether delivered to one's face, online or in any other way. We are coarsening our discourse and making life far more difficult for people. I again commend Senators Freeman and Craughwell on bringing forward the legislation. I have a small concern on the implementation of the Bill and how it will fit in with other legislation, including the general data protection regulation, GDPR. It is important that legislation is brought in to deal with these issues, but we may need to consider tabling amendments to ensure we take an approach that works effectively within the current legislative structures at EU and national levels. I wish to highlight that amendments to that effect may be tabled on Report Stage.

I commend Senator Freeman on getting the Bill to Committee Stage. I spoke in support of it on Second Stage. On the section, we need to try to do something about social media. Much of the work done on it is piecemeal because it is such a massive area that one can throw up one's hands and ask where one should start. Senator Freeman has started with the protection of the most vulnerable. I would hate to be a parent of young children today. I am glad my children just had the Bebo stage and moved on and have the maturity to have resilience and stand up for themselves. I do not know how I would protect them in this day and age. It is up to legislators to strongly protect our children, the most vulnerable in society.

Mental Health Warriors, along with carers and representatives of many other vulnerable groups, held a protest outside the gates of Leinster House at 1 p.m. today to demand extra mental health supports from the Government. Many of the parents at the protest, including a member of the Mental Health Warriors, have lost a child to suicide. Many of them lost a ten year old, an 11 year old, a 12 year old, a 13 year old or a 14 year old. Social media has had a direct impact in that regard. The mother of Nicole Fox Fenlon, who committed suicide at the age of 21 following severe online bullying, is calling for legislation in this area and for it to be known as Coco's law.

If New Zealand, Australia and Germany - all these other progressive countries - can do something, why are we so slow to react to a phenomenon that has overtaken every means of socialisation? Regarding the naive innocence we had, our parents probably did not think we had it but looking back on it now, we were innocent. A child loves the wonders, adventures and excitement of the world and believes that he or she can be whatever he or she wants to be but is faced with an onslaught by nefarious disgruntled individuals, be they adults or children. Let us start somewhere.

Facebook is a joke. I can put that on the record. Its response to this House and the Oireachtas Committee on Children and Youth Affairs was to basically say how glorious it is. It took zero responsibility for the poison it permitted to be spread. It sits back and lets it be spread. The Minister should support Senator Freeman's Bill because we must start somewhere.

To clarify, what I am proposing is very simple. This is not about the significant amount of social media issues that are emerging as we discuss this. I am talking about taking down sites that provide harmful content, for example, a site that tells a child to do a certain task every day for 50 days and on the 50th day, tells him or her to take his or her life or a site that promotes deprivation of food. I am not talking about online bullying. I am talking about particular sites. My point is that this is very simple legislation that could be simply and easily implemented.

The legislation with which I am dealing deals with harmful content. That is only a subset of a much wider category of problem. I draw Senators' attention to the action plan for online safety published last year. This plan deals with a much more comprehensive approach to this issue. I was then Minister for Education and Skills and appeared before the Oireachtas Committee on Children and Youth Affairs. What was unique was the fact that five Ministers attended. In order to deal with the complexity of the issue, the action plan for online safety was introduced. I draw the attention of Senators to some of the measures in the plan. In particular, I draw the attention of Senator Craughwell to the work of Webwise, which has done outstanding work in equipping young people and parents with information about how they should deal with the challenges presented by being online. A single online access point was established during the past 12 months to deal with online material. New curriculum material is being developed along with and the 24-7 telephone number.

I do not wish to hold up the Seanad but Government recognises that this is a much more comprehensive issue than simply harmful communications. The Department of Justice and Equality is introducing legislation that goes far beyond this in dealing with upskirting - pictures taken without consent. A review is ongoing as to whether our existing incitement to hatred legislation is adequate or whether it needs to be strengthened. There is a lot of other legislative activity to be done in this area other than the material with which I am dealing.

Of course, breaches of the criminal code must be integrated into what I am doing, just as we need to recognise Senator Craughwell's concern about the infringement of his data protection rights. They will not fall to the online safety commissioner. The Data Protection Commissioner will continue to deal with such issues. The Bill I am developing is not seeking to extend and try to resolve all issues.

I assure the House that there is no delay in introducing what I am doing. I accept many of the definitions of harmful material set out in the Senator's legislation when she deals with suicide, cyberbullying and self-harm but I need to ensure that the legislation that comes forward is robust. We need to be careful that the legislative power we give to an online safety commissioner is commensurate with the transgression, so taking down a site on the basis of a single transgression would not be the first port of call. One would take down the content that is deemed harmful. Taking down the site would be for a graver set of consistent abuse. The example cited by Senator Freeman would be such an example. Regarding one of the concerns we need to look at in drafting the final legislation, I understand that Senator Freeman's legislation does involve taking down the site, whereas what we need is legislation whereby enforcement power would be graded proportionate to the scale of the offence. Consequently, taking down the site would be a graver intervention that the online safety commissioner could apply.

Question put and agreed to.
Question proposed: "That section 7 stand part of the Bill."

That is another area where the Attorney General has drawn my attention to difficulties. The provision that a person may be tried in the State for an offence by a person outside the State gives rise to certain jurisdictional issues that would be problematic.

It is an issue I have had with regard to gambling. It is possible for the Internet service providers, ISPs, in the country to ensure that external content can be blocked at the point of entry. I know there are ways around that. I have worked in the area long enough to know that there are ways around most things. ISPs must be held responsible for the material allowed into the country in the drafting of the Bill, if the Minister is not prepared to see Senator Freeman's Bill go the whole way. We must start holding responsible the platform providers, who have washed their hands and said it is nothing to do with them and that it is the individuals who put this stuff up. The type of site referred to by Senator Freeman, where somebody is taught how to become anorexic is repulsive. The type of site where somebody is put through a series of steps in order to take his or her life is outrageous. There is no graded system that can measure that. The site should be gone and the individuals behind it should be arrested in whatever jurisdiction they are in. However, ISPs have a responsibility to control content.

I went through this myself as the head of an IT section in a further education college. The question was about what we would or would not control with regard to what students could see on the college site. We took the view that our students were adults and we were not going to limit content but from time to time, we encountered problems with people who transgressed what would be normal behaviour in society.

A simple Bill, which we have in front of us, that would prevent those sites from operating would be worth considering as an immediate step to at least stop that much. At least, we could walk away and say that no sites that teach people how to commit suicide, become anorexic or injure or harm other people will be allowed. We will never stop bullies. Bullies have been around since time immemorial. If we went back to the time of Christ, there were bullies then and there will be bullies. Sadly, many of them leave the playground and come into the office and are as bad in the office as they were in the playground.

We are never going to stop that but we can limit the speed at which it is transmitted. I believe that is what Senator Freeman is trying to do.

I wish to echo what Senator Craughwell has said. The reality is that I am only talking about sites that do nothing else but provide very harmful content. There is no grading in this, as Senator Craughwell said.

I will try to simplify it. I appeal to the Minister to imagine what it would be like if he had a child, grandchild, niece or nephew left in a room alone with a stranger who would go into detail on how to take their own life. That is what we are allowing to stay up in front of our children.

This Bill is so simple that it could be passed through quickly. Whatever the Minister is going to provide will be so vast that there is probably going to be problems along the way. I am simply asking for a simple Bill that will help children right now, rather than when all the other things have to be passed through.

Question put and agreed to.
Section 8 agreed to.
Title agreed to.
Bill reported without amendment.

When is it proposed to take the next Stage?

Bill received for final consideration.

When is it proposed to take the next Stage?

Question, "That the Bill do now pass", put and agreed to.

When is it proposed to sit again?

Next Tuesday at 2.30 p.m.

The Seanad adjourned at 5.10 p.m. until 2.30 p.m. on Tuesday, 22 October 2019.