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Seanad Éireann debate -
Wednesday, 11 May 2022

Vol. 285 No. 2

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

SECTION 7
Debate resumed on amendment No. 72:
In page 37, line 14, after “rules” to insert the following:
“and shall identify specific barriers to accessing audiovisual media services for people with disabilities along with possible mitigation measures”.
- (Senator Alice-Mary Higgins)

I do not think we need to spend very much longer on it. I welcomed the fact that the Minister included that issue in the annual report. It is the same point to which the Minister was previously very amenable, namely, that it is not simply about accessibility but also that participation and representation within audiovisual services could also be part of the report. I will not press the amendment, but I might bring forward an amendment on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 73 has been ruled out of order due to a potential on the Revenue.

Amendment No. 73 not moved.

I move amendment No. 74:

In page 37, line 40, after “Minister” to insert “and the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media”.

There is a mechanism in the Bill whereby the commission may enter into an agreement to co-operate with another body. The amendment proposes that the Minister be provided with a copy of that agreement. We suggest that a copy of the agreement would also give be given to the Joint Committee on Tourism, Culture, Arts, Sport and Media. There was a suggestion that there was a preference for the Department to state the relevant Oireachtas committee rather than name the title of the committee, but where there is co-operation that is considered significant enough that the Minister would be notified, it would be appropriate that the Parliament would also be notified in terms of the relevant committee.

Section 32 of the Broadcasting Act 2009, as amended by section 7 of the Bill, provides that an coimisiún may enter into co-operation agreements with a body established in the State. As I said when speaking to amendment No. 26, this section will enable an coimisiún to engage with a range of body within the State if it will assist an coimisiún to discharge its functions.

The section also provides that an coimisiún may co-operate with bodies outside of the State if they are to provide similar function an coimisiún, as section 32(3) indicates. This may, in particular, include members of the European Regulators Group for Audiovisual Media Services, ERGA. The Broadcasting Authority of Ireland has been an active member of the European regulators group and I expect an coimisiún will maintain this strong tradition by co-operating and working with other European national regulatory authorities. Amendment No. 74 would amend section 32 4) to require that where the commission enters into an agreement to co-operate with a body, it should provide not only the Minister, as provided for in the Bill, but also the relevant Oireachtas joint committee with a copy of the agreement.

I thank the Senator for her amendment and I am absolutely in favour of the oversight of public bodies by the Oireachtas. That is why section 28 of the Broadcasting Act 2009, as amended by section 7 of the Bill, contains strong provisions requiring the chairperson and individual commissioners to appear before an Oireachtas committee to give account of the performance of their functions. I cannot accept the amendment as drafted because reference cannot be made to specific Oireachtas committees in legislation in the manner in the amendment. However, I will reflect on the amendment with a view to further consideration in the context of Report Stage. In doing so, I will consider the appropriate balance to be struck between parliamentary oversight and any provisions that may impinge on the independence of an coimisiún, which is provided for in section 10 of the Broadcasting Act 2009, as amended by section 7 of the Bill.

I welcome the indication from the Minister. There is a difference between coming to account to a committee which, as we know, involves a minimal amount of time to deal with the huge number of issues, and having the appropriate document in order that it can be scrutinised and issues identified in order to provide accountability for the public. I hope there is co-operation. In some of my other amendments, I have referred to bodies like the Irish Human Rights and Equality Commission, IHREC, and Screen Ireland. There are many areas of potential domestic, as well as international, co-operation. I am not against that. I want to make sure that the basis of that is clear. I am happy to work with the minister to determine which amendment might work. I will withdraw the amendment with the leave of the House and return to the issue on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 75 to 81, inclusive, are related. Amendment No. 79 is a physical alternative to amendment No. 78. Amendments Nos. 75 to 81, inclusive, may be discussed together. Is that agreed? Agreed.

I move amendment No. 75:

In page 38, line 3, after “data” to insert “, where necessary and proportionate”.

These amendments seek to ensure that the actions the commission may take are fully true to the letter and spirit of our obligations under the general data protection regulation, GDPR. Personal data may be disclosed to a number of different bodies. I am trying to ensure in amendment No. 75 that it would be very clear that it was only to happen where that is necessary and proportionate. I recognise there are some further caveats, which I will come to, in the section. In effect, the necessity and proportionality tests are important.

The tests slightly differ and do slightly different work.

On amendment No. 76, the Bill states: "The Commission may ... disclose personal data to ... (d) a broadcaster or a provider of an audiovisual on-demand media service", where a person has made a complaint under section 33(2). It is not clear to me why the personal data of the person who is making the complaint would be disclosed because either the complaint has merit so needs consideration or it does not. In terms of disclosing the complaint, this is not an interpersonal thing but people who do a public service by making a complaint, and we also have this in terms of the whistleblower legislation. It should not be the case where persons are concerned or feel concerned enough to make a complaint. For example, one may have situations where persons may be the employees of a body yet wish to make a complaint about some of its practices or persons who have had business dealings in any form. I am concerned about the sharing of personal data, and especially given that we know the vulnerabilities of individuals versus the immense power of some of the actors who will, potentially, be regulated with this provision. As the Minister will know the individual complaints mechanism is something that we really need to be part of this legislation. Again, I would not want to have anything in the Bill that has the potential to impinge on such an individual complaints mechanism when we put it in place.

Amendment No. 77 seeks the deletion of section 33(e). Again, this is quite an immense power that is given by the Minister because the Bill states that the commission can disclose personal data to "a body prescribed in regulations made by the Minister". Again, I am not comfortable with us, as a Legislature, giving the power to not just the current Minister but any future Minister to prescribe that any body should have access to personal data and that the commission would share it, including, potentially, any private body or actor in that context. The provision is not even constrained to a public body in that sense.

Amendment No. 78 concerns 33(2)(d) whereby the commission may transfer personal data "to the broadcaster or provider of an audiovisual on-demand media service ... for the purposes of transferring the complaint". I am concerned about the provision as follows. If persons wish to make a complaint to a broadcaster then they can do so as there is a range of imperfect mechanisms across different broadcasters or providers of on-demand services. If a person wishes to make a complaint to the commission then he or she is making a complaint to a public body so should enjoy all of the associated protections and safeguards and I am concerned about the transferring of that information. Again, it is not clear to me that such transfer would only happen, for example, with the consent of the complainant. I think that would be a necessary and an appropriate bar in that regard.

Amendment No. 79 is similar. It says that perhaps there may be circumstances where it is appropriate to transfer but that transfer should be done explicitly with the consent of the relevant complainant. The amendment recognises that a transfer may be anonymous because it states: "having made all reasonable effort ... to contact and seek the consent of a relevant complainant". Simple efficiency or easiness for a public body does not meet the necessity and proportionality tests.

Amendment No. 80 seeks to insert a new subsection (2A), which makes it clear that where a person's personal data has been disclosed, under any of the provisions of this section, every reasonable effort shall be made to inform the person that his or her data has been shared. That is sought because otherwise one has the situation whereby somebody shares information with the commission and his or her personal information is shared onwards yet the individual may not be aware of that fact. My concerns are not solely confined to whistleblower scenarios but they are a good example whereby we know there are protections. I mean we know that there is a long record of punitive measures, of targeting and other ways that persons may be targeted. If somebody is not even aware of a complaint then he or she is operating blind. Such a person may be vulnerable to situations, cases or other actions, yet not know of his or her vulnerability so thus are unable to take appropriate measures for self protection or exercise his or her rights against penalisation.

Amendment No. 81 seeks to insert a new subsection (5A) which states: "Prior to making regulations under subsection (1) or subsection (2), the Minister shall subject the proposed regulations to a data protection impact assessment". We have gone through a lot of data protection impact assessments. It is simply not enough to have the legislation or bodies at a core point because regulations, if any, should be subjected to a specific data protection impact assessment in terms of their potential effects.

I thank the Senator for the amendments and acknowledge her expertise in the area of data protection.

Section 33 of the Broadcasting Act, as inserted by the Bill, is intended to specify the circumstances under which, and the bodies to which, the commission may disclose personal data. I believe that the intention of amendment No. 75 has been captured in section 33(2) of the Broadcasting Act, as inserted by the Bill. Throughout section 33(2) it is specified that the commission shall only disclose personal data where it considers that it is necessary and proportionate for the purposes set out in its various paragraphs so, therefore, I do not accept the amendment.

I do not propose to accept amendments Nos. 76 to 78, inclusive. Amendments No. 76 and 78 have the collective effect of preventing the commission from disclosing personal data to a broadcaster or a video on-demand service in respect of a complaint made against those services. I believe that would impact the functioning of the complaints mechanism set out in section 48 of the Broadcasting Act 2009, as inserted by section 11 of the Bill, which enables people to complain to the commission regarding a failure by services to comply with media service rules and codes.

The complaints system is an important mechanism that has been operated by the Broadcasting Authority of Ireland and is applicable to broadcasters under the extent of the Broadcasting Act 2009. It has been extended to video on-demand services by the Bill. It is underpinned by the requirement that a broadcaster or a provider of a video on-demand service prepares and implements a code of practice for the handling of complaints, which is a requirement of section 47 of the Broadcasting Act 2009, as amended by section 10 of the Bill.

Section 48(3) of the Broadcasting Act 2009, as amended by section 11 of the Bill, provides that an coimisiún may refer a complaint to the broadcaster or provider of a video on-demand service in the first instance. This is a continuation of the existing provision applying to the complaints system operated by the BAI. It ensures that the broadcaster or video on-demand service should attempt to address a complaint, in the first instance, in accordance with its codes of practice for the handling of complaints.

It is often not immediately clear to people unfamiliar with the complaints system operated by the BAI to whom a complaint should first be made and about what matters. This provision also ensures that an coimisiún, when it is established and comes to expand the BAI system to video on-demand services, can transfer a complaint to a broadcaster or provider of a video on-demand service where those service providers are best placed to respond. If the complaint is not dealt with to the complainant's satisfaction then it can then be dealt with by an coimisiún.

Amendment No. 77 would prevent the prescription of further bodies to whom the commission could disclose personal data. I believe that it is important that the Bill is future-proofed such that, and only after careful consideration in accordance with section 33(4), a Minister may prescribe further bodies as necessary.

Amendment No. 79 would require an coimisiún to make best efforts to contact and seek the consent of a complainant prior to transferring a complaint to a broadcaster or a provider of a video on-demand service. I do not propose to accept this amendment for a number of reasons. The first reason is that the legal basis for data processing, relied upon by this section, is not consent but that the "processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller". This has been set down in the Article 6(e) of the general data protection regulation, which obliges member states when using this legal basis to set down the purpose of that processing in national law.

This is what the section does with regard to the processing of personal data for the purpose of transferring complaints.

The public policy rationale for using the public interest legal basis rather than the legal basis of consent was that requiring complainants to resubmit their complaints to the appropriate body is burdensome and especially onerous for vulnerable complainants. In this regard, I am conscious of the work of the expert group on an individual complaints mechanism. This section may need to be relied upon to transfer online safety complaints between public bodies if the group recommends to me, and I accept, the introduction of an individual complaints mechanism in the Bill. If there is concern about a lack of communication with complainants I think amendment No. 80 may address it. I will come back to this shortly. Accordingly, I do not propose to accept amendment No. 79.

Amendment No. 81, which would require a data protection impact assessment to be undertaken prior to any such prescription, might be an important safeguard. For this reason I propose to return to further consider this on Report Stage if the Senator agrees. In a similar vein, amendment No. 80 could provide another important further safeguard in legislation. It provides that where disclosure of personal data is made by the commission to be broadcast on video-on-demand service or to a body prescribed by the Minister, all reasonable efforts shall be taken to inform the complainant of this disclosure. While I propose to reject the amendment now, I will consider it further and return to the matter on Report Stage.

I thank the Minister for her engagement. Many of the concerns I have outlined in the amendments could be addressed by an appropriate data protection impact assessment. I recognise there is some necessity for proportionality in subsection (2), but I still have concerns with regard to regulations downstream. Data protection impact assessments are not necessarily long or arduous processes, especially when they are applied regularly in new provisions and regulations. I hope our capacity as a State to use them effectively and regularly will continue. It is always better than dealing with concerns after the fact.

I thank the Minister for her engagement on amendment No. 80. While it is the decision of the State to use a public interest rather than a consent basis for the sharing of information, the Minister is aware that many who will reach out or contact the commission will believe they are in direct communication with it but they may not be. This is why the question of the information is very important so that people are clear. They must be clear about the purposes for which the information they are sharing may be used. This is part of the transparency. It is separate from consent but it is important that it is clear. This is where looking to proper and appropriate information is important as it is with regard to penalisation, which we know occurs. For many whistleblowers and individuals highlighting their personal experiences can have a significant negative impact. Everything we can do to ensure people are aware is important.

Much of this would be addressed if we have an individual complaints mechanism that is very clear. Part of the problem is that there is almost an element of preparing for an individual complaints mechanism, but we have not received the proper expert group guidance on such a mechanism. This is something all of us want to see happening in the legislation. We would prefer to see it happening when the Bill is going through the Seanad, if possible. Perhaps the Minister might indicate whether we have a further narrowing down of when we can expect the expert group to come back on this matter.

As I have outlined, I am willing to come back on Report Stage with regard to amendments Nos. 80 and 81. I do not propose to accept amendments Nos. 75 to 79, inclusive. With regard to the expert group, I hope to receive the report in the next week. I will then need to consider it. If we go by the amount of time the group was given to do its work, then its report is due shortly.

As I expect that we may engage with this issue on Report Stage if the expert group has reported back in the meantime, and recognising the Minister's willingness to engage on amendments Nos. 80 and 81, I will not press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 76:

In page 38, to delete lines 8 and 9.

Amendment, by leave, withdrawn.

I move amendment No. 77:

In page 38, to delete line 10.

Amendment, by leave, withdrawn.

I move amendment No. 78:

In page 38, to delete lines 31 to 37.

Amendment, by leave, withdrawn.

I move amendment No. 79:

In page 38, line 34, after "Commission" to insert the following:

", having made all reasonable effort in the first instance to contact and seek the consent of a relevant complainant, considers making a disclosure if necessary".

Amendment, by leave, withdrawn.

I move amendment No. 80:

In page 38, between lines 41 and 42, to insert the following:

"(2A) Where an individual’s personal data is disclosed under this section, every reasonable effort shall be made to inform the individual of that disclosure and the relevant circumstances.".

Amendment, by leave, withdrawn.

I move amendment No. 81:

In page 39, between lines 30 and 31, to insert the following:

"(5A) Prior to making regulations under subsection (1) or subsection (2), the Minister shall subject the proposed regulations to a data protection impact assessment.".

Amendment, by leave, withdrawn.

Amendments Nos. 82 and 83 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 82:

In page 40, between lines 4 and 5, to insert the following:

"(1A) Provision made for the purpose referred to in subsection (1) may not include regulation of commercial communications.".

Does the Senator wish to speak on the amendment?

Not yet because we will speak to the group first.

Does anyone else wish to speak on amendment No. 82?

It is grouped with amendment No. 83.

Amendments Nos. 82 and 83 can be discussed together. We have agreed that. We cannot move amendment No. 83 until we have disposed of or dealt with amendment No. 82. We cannot move amendment No. 83 yet.

We are speaking on amendments Nos. 82 and 83.

Senators can speak to amendments Nos. 82 and 83, we have agreed that, but amendment No. 83 cannot yet be moved until we have dealt with amendment No. 82.

Senator Warfield has moved amendment No. 82. Whomever wants to speak on amendments Nos. 82 and 83 together can now do so. Does Senator Sherlock wish to speak now?

No, I will come in when we are discussing amendment No. 83.

This is the point to come in.

Amendments Nos. 82 and 83 are being discussed together.

Can I speak on amendment No. 83 now?

Yes. You can discuss either or both amendments Nos. 82 and 83.

I thank the Minister for yet another outing on these amendments. Amendment No. 83 proposes to insert a provision in the Bill whereby the commission will not co-operate with self-regulatory systems or any other non-statutory mechanism that is not part of the legislative framework. The key issue is that either we are serious about regulation or we are not. Self-regulation has been shown not to work. If we are serious about the commission being a truly independent body then it is about ensuring that it does not involve itself with self-regulatory systems. In a self-regulatory system there will always be a conflict of interest. We know in particular from research into food and beverage marketing that self-regulation has proven to be weak and meaningless.

The clear issue in this country is that online advertising is, effectively, self regulated. Television advertisements are not. It is telling that we have clearance system for advertisements for television whereby they must go through the Advertising Standards Authority for Ireland in advance. For online advertising we are dependent on citizens bringing complaints in respect of breaches of the code after the advertising has happened. We are dependent on a vigilant public speaking out. The amendment is to ensure no time or resources are spent by the commission on the regulation of commercial communications and in particular self-regulatory commercial communications.

Amendment No. 82 was co-sponsored by my colleague, Senator Black. The Minister would be aware of the excellent and extensive work Senator Black did in the past on the legislation on alcohol control and that area. We had very lengthy discussions on advertising and self-regulation and on the very significant concerns in that area around the inadequacies of self-regulatory mechanisms.

It is one example, but there is a very significant concern that I would urge the Minister to weigh up in relation to section 34. There seems to be a kind of muddying of the ground. Under the media services codes, which we discussed earlier, it needs to be clear that the commission would have the power to make regulations, restrictions or, potentially, prohibitions, in respect of commercial communications. The one thing I would add to this amendment relates to the fact we have agreed we need to have a clarity that commercial communications and advertising should be covered by that issue so, again, the media services codes would allow for codes in respect of advertising in its fullest sense, not in just its narrow sense of commercial communications.

We have these media services codes that we are putting in place, and yet we have this kind of separate thing which is a self-regulatory system. We are in a situation where we may have some kind of self-regulatory systems that are perceived as being given the imprimatur of the commission and are operating separately from, and kind of in parallel with, the media services codes, which are the proper and appropriate regulatory mechanisms and signals that the commission may make. The commission can set out media services codes, and the media services codes or other policy coming from the commission may be drawn upon by those putting in self-regulatory systems. However, the framing of this section, even framed in terms of co-operation with and giving assistance to a person or group of persons, creates a kind of weird dynamic between sectors that need to be regulated and the regulator. It is one thing, as we said, for us to set standards and to look at things in terms of how they meet those standards, but the idea of the standards being prepared by groups of persons outside the commission and the commission assisting them could pose problems. We could have a situation where we are being told that the groups' standards that industry may put together for itself can be said to have been prepared with the assistance of the commission and somehow be in line with the media services codes or with anything else. It seems it is a very muddying piece of the relationship.

If we think about the Data Protection Commissioner and the importance of that role and the kind of a challenge Ireland has had at EU level around the need for real, absolute clarity of independence and of a separation of that role, again, anything that muddies the clarity in relation to the commission and its regulatory function is potentially dangerous and could undermine its credibility. I am very concerned about this area in terms of the commission and its work.

That leaves aside the separate concern, which I know Senator Black and others have, which is the general principle of self-regulatory solutions to these issues. We know they are a very significant concern because there are very significant interests in play. In a way, the fact that in Europe we have these directives coming down, such as the digital services directive and the audiovisual directive, with the algorithms, is because there has been a decision that we need to regulate. In the United States and other countries, there has been a self-regulatory approach for a very long time. I refer to anything that gives us a self-regulatory approach, and particularly in relation to commercial communications and interests.

I have been speaking on, for example, the marketing mechanisms of the breast milk substitute industry – the formula industry – over past week or two. We have seen some very concerning practices. There is a World Health Organization code that should be, but is not being, fully applied. That is a voluntary code that many companies have signed up to, and yet we see practices that breach it all the time. That is why we look for actual law and actual regulation, such as the media service codes.

I am in broad agreement around the principles these amendments are trying to achieve. We need to move away from self-regulatory codes. It is important, though, that when the new regulator, the media commission, is established that it does not operate entirely behind an Iron Curtain. It needs to understand the industry and the sectors and how they work.

It would be useful, perhaps, if we could get clarity. I can understand where this system may be relevant, where, for instance, there may be systems of arbitration and so on that may be in existence within particular industries and if there is an overlap. I am thinking about work, say, the International Chamber of Commerce does. It is not that I am necessarily opposing it. However, around some of those areas where there are systems of arbitration within an industry, I certainly would not like to see those excluded. If we are looking at a situation where an industry is entirely self-regulating, that should not happen. However, if there are mechanisms in place that mean we do not have to go into very formal structures, I certainly think that should continue to be allowed. I get where both amendments are coming from. However, I would have concern that we do not in any way inhibit any arbitration systems that may exist.

Does Senator Higgins wish to come back in?

I hope that every sector will seek to regulate itself as well, but the concern here is this is the commission in relation to that self-regulation and its relationship to them. That is part of the concern.

I am speaking specifically to the wording of the amendments. That is why I am expressing concern.

Do any other Senators want to come in on amendments Nos. 82 and 83 before I bring the Minister in? No.

I thank the Senators for amendments Nos. 82 and 83. The amendments appear to have the same effect in preventing the commission from co-operating with groups in the establishments of standards or self-regulatory systems. I wish to point out that it will always remain open for people to complain to the commission under the relevant media service codes and rules. Section 34 of the Broadcasting Act 2009, as amendment by section 7 of the Bill, is drafted in line with the audiovisual media services directive and allows the commission to co-operate with self-regulatory mechanisms. Articles 9(3) and 9(4) of the directive set out the requirements on member states to encourage self-regulation in respect of commercial communications, including advertising. Accordingly, I cannot accept amendments that would appear to contradict the directive.

I would nonetheless say to the Minister that while language, in terms of encouraging self-regulation, is one thing, assisting in self-regulation is quite a different thing. That is part of the concern. I would like an indication from the Minister on whether she is looking at the language that is being used in terms of the way the commission is to engage with the self-regulatory systems and if that is an area that she feels she may be able amend it. Again, where this states "co-operation with, or give assistance to, a person or group of persons" and "the preparation of that by the person of a group of standards" feels a little bit too hands-on. I appreciate that the amendments, as they are put forward at the moment, are quite a blunt removal, but I also think there is a difference between encouraging and giving a risk of a perceived imprimatur of endorsement to a self-regulatory system, which could arise from the way this is worded.

I appreciate the Minister made a strong point on the audiovisual directive and encouraging self-regulation. It would not be appropriate to have an amendment that states "shall encourage that there will be self-regulatory systems in addition", but would take a step back from this kind of assistance and co-operation language.

I am happy, having listened to the Minister’s point. I want to speak directly to what is in the legislation and the proposed amendments. If we are thinking about the commission when it is up and running, I would certainly hope it would not regulate behind an Iron Curtain.

If a sector wants to set up its own system to try to address some of the problems at an early stage, the commission should work quite closely with the sector to try to allow that to happen. It does not prevent, if that self-regulatory system fails or is in breach of codes, action being taken but if a sector is looking to regulate itself effectively to try to avoid having the full force of the commission coming down on it, it is worded reasonably well in the legislation as "may co-operate with". When the commission is up and running, I would like to see the relevant sectors talking to it and saying that they want to be in compliance with the legislation, the codes and the directives and asking what they need to do. For example, if it is an industry representative body, what does it need to tell its members? How can the body ensure there are appropriate arbitration mechanisms in place?

While I understand the proposals in the amendments - I am speaking specifically to the wording - it will not help. It should remain as it currently stands in the legislation.

I support what Senator Higgins said. I hear also what the Minister and Senator Malcolm Byrne said but we need to reinforce the point that there is a significant distinction between co-operating with and giving assistance to. I agree with Senator Higgins's question on whether the Minister would be open to a change of that particular language. Obviously, the language in the two amendments is much more black and white, but giving assistance to the establishment of a group is a fairly significant step for a commission.

I agree with Senator Malcolm Byrne that it should not be acting from behind an Iron Curtain. Of course, it has to be aware and engage. Any commission worth its salt has to engage with those it needs to engage with, but what does "give assistance to" imply with regard to resources of the commission? I think that is-----

That is effectively a money message.

There is a question with regard to the resources of the commission and providing assistance, both in the preparation of standards and, in particular, in the establishment of a person or a group. We would like to hear from the Minister whether she is willing to accept any change in language that we bring forward on Report Stage.

One of the clues to the concern was in that comment to the regulatory. We need to be honest. These are sectors where at the last moment self-regulation has been brought in. I could cite multiple examples. For example, as soon as there was to be an EU regulation on 40% women on boards, suddenly the 30% club appeared as a voluntary mechanism where we were all suddenly keen to voluntarily have 30% women on boards rather than have a rule that there should be 40%. I recognise it is a process but that is where I still have a concern. There is the question of whether it would be used in terms of regulation but also around that language in terms of how it is done, even in terms of assisting in the preparation by the group of standards. There is a perception that a set of standards developed by a sector could be perceived as having been agreed to by a regulator or by the commission, or in terms of the administration of it. That is too hands on. That is different. One creates a dynamic where the commission has a double role.

This is different from an Iron Curtain. It is not about a Soviet Iron Curtain but if there is engagement with self-regulation, there needs to be at least some form of a Chinese wall or something so that one is not having it that the commission signed off on 30% being grand in regard to self-regulation but the commission now saying there should be 40% or whatever it might be. It is a little muddied in terms of the language. I will come back with amendments on this on Report Stage. I hope we can find language which is satisfactory to everybody in that regard.

As it stands, I am a little concerned by the potential effect in terms of how this would pan out but also in terms of the perception of the commission. The last thing we need is a perception that the commission is deeply embedded with particular industries or sectors. The commission could work with them but it should not be seen to be in such a close relationship that it could be seen as endorsing the standards that it chooses to apply because it must represent the public interest fundamentally.

The commission will have a strong role in regulating commercial communications, including advertisement, through the media service codes which will be binding on video-on-demand services and broadcasting services and through online safety codes which will be binding on designated online services.

As I said, I cannot accept these amendments that would appear to contradict the Audiovisual Media Services Directive. That directive also requires member states to foster self-regulation.

This section also covers, apart from advertisement, for example, co-operation with the Press Council. I cannot foresee any language there because I cannot contradict the directive. I am not accepting these amendments.

The last point is that the amendments specifically address the area of commercial communications rather than, for example, the Press Council or others.

Amendment put and declared lost.

I move amendment No. 83:

In page 40, between lines 4 and 5, to insert the following:

"(1A) Subsection (1) does not apply to standards or self-regulatory systems relating to the regulation of commercial communications.".

Amendment put and declared lost.

I move amendment No. 84:

In page 42, to delete lines 18 to 23.

There is an exemption from the disclosure of interests and my amendment would seek to remove the exemption from the disclosure of interests. Section 37(2) states that requirement for a disclosure of interests does not apply to a person who is entering a contract or proposed contract of employment or a contract or proposed contract of services in relation to the commission. The reason that is a concern, as we have discussed previously, is that there are small numbers of relevant experts in some of the areas which will be subject to the commission. The commission may well have to draw on persons who also have, for example, either significant shareholdings or significant interests within the bodies to be regulated, and may even have significant contracts of service with the bodies to be regulated. This is not to preclude such persons from working for the commission or, indeed, providing services to the commission because the nature of it is that as the commission seeks to draw in expertise, there will be potential overlap. The fact is that one will have individuals who are the absolute specialists in a certain form of profiling or content. However, it is important that there would at least be disclosure of such interests. It is not precluding but is saying that there should be a disclosure of interests. For example, if somebody is hired on a contract of service to look at a particular area of nuanced regulation and he or she has significant interests in relation to the sector or some of the companies to be regulated, that should be known and it is important and appropriate that it would be known.

I imagine the commission will be drawing on such expertise in certain areas.

In the context of content regulation, there may be a need to draw on the expertise of companies and others who have provided such content regulation services to major online broadcasters. For transparency, it would be appropriate that disclosure would be made. Section 37(2)(b) refers to contracted services. The contract with the commission could be one out of 20 that someone might have. Given that ten of those 20 may be far more financially significant than the contract with the commission, it is important that people would be aware of that.

In the context of amendment No. 84, I would be concerned that as it is drafted it would have the unintended consequence of preventing an employee of an coimisiún from seeking to influence any considerations of an coimisiún regarding the contract of that employee. This would seem to prevent employees from representing their interests to their employer, namely, an coimisiún. The provision in the Bill, as currently drafted, was designed to prevent such scenarios from occurring. Accordingly I do not accept the amendment.

Section 37(2)(b) allows for a proposed contract of services. There is one situation where employees who in terms of section 37(2)(a) are members of staff of the commission but it is a case of contracted services in section 37(2)(b). I would like the Minister to specifically address whether she has that same concern in regard to section 37(2)(b).

Section 37 (2)(a) and (2)(b), which the Senator is seeking to delete, are about a person’s contract with an coimisiún; they are not about the requirements of disclosure regarding a person’s activities in terms of an employment contract. It is about a person’s contract; it is not about the requirements for disclosure.

To clarify - I would be satisfied if it were clear - a person who has a contract of a service provided with the commission will effectively have an obligation in terms of disclosure of his or her interests, where such interests exist, not specifically in respect of the contract but, rather, with regard to his or her interests. That must be disclosed appropriately. If the latter is the case, I am satisfied with that.

Yes, they have a duty in the context of disclosure. This section is about a person's contract.

In that context, I am happy not to press the amendment.

Amendment, by leave, withdrawn.

Amendment No. 85 has been ruled out of order as it would impose a potential charge on the Revenue.

Amendment No. 85 not moved.
Section 7 agreed to.

Amendment No. 86 has been ruled out of order as it would impose a potential charge on the Exchequer.

Amendment No. 86 not moved.
NEW SECTIONS

I move amendment No. 87.

In page 44, between lines 4 and 5, to insert the following:“Duties with regard to regional balance

8. The Principal Act is amended by the insertion of the following section after section 39:

“Duties with regard to regional balance

39A. (1) All public bodies engaged in the distribution of State moneys for the production, screening and broadcast of audiovisual or sound content, including but not limited to RTÉ, Teilifís na Gaeilge, Screen Ireland, and the Commission, shall ensure that these funds are distributed equitably and proportionally across the whole island of Ireland with particular regard to the need for regional balance in investment and representation in audiovisual content, screen and sound, including in programmes relating to news and current affairs, culture, and sport, of communities across the whole island.

(2) The Commission shall prepare and publish a report every 3 years from its establishment detailing the regional spread of investment and representation of regional voices and communities by State bodies in audiovisual content, screen and sound across the whole island of Ireland, including specifically in programmes relating to news and current affairs, culture, and sport.

(3) The reports referred to in subsection (2) shall be laid before the Minister, both Houses of the Oireachtas, the Joint Oireachtas Committee, RTÉ, Teilifís na Gaeilge, and Screen Ireland, upon publication, and shall include recommendations on how to improve the regional balance of investment and representation in the subsequent three-year period.”.”.

This amendment is about sharing the public funds from a range of organisations, some of which we have mentioned, but just those organisations. Such funds would be evenly distributed, equitably and proportionately, throughout the whole island of Ireland, with particular regard for regional balance in terms of investment and representation in audiovisual and screen content, sound, news and current affairs, culture and sport. I wonder why this has not been ruled out of order because we are also asking that a report be published every three years.

Be careful what you wish for.

I thank the Senator for bringing forward this amendment, which would have the effect of obliging all public bodies engaged in the distribution of State monies for the production, screening and broadcasting of audiovisual or sound content to ensure that funds are distributed equitably and proportionately throughout the whole island of Ireland, with particular regard to the need for regional balance in investment and representation in audiovisual, screen and sound content. For a number of reasons, I will not be accepting it. At its widest, and taking the specific bodies referenced in the amendment, a definition of "public bodies" could cover the Revenue Commissioners, in its role regarding the application of section 481 film tax credit, Screen Ireland, in regard to making development and production loans available, the Broadcasting Authority of Ireland, in the context of the Sound & Vision scheme, TG4, regarding its role in commissioning content, and RTÉ, in terms of funding for independent production through the independent production account established under section 116 of the Broadcasting Act. Each of the funds disbursed by those bodies may come from two sources. The first is the Exchequer, in the form of funding from section 481, Screen Ireland loans and TG4. The second is from the licence fee, in the form of funding from RTÉ, and the Sound & Vision scheme.

While I appreciate the intent in regard to ensuring more balanced regional development and representation, the amendment contains a number of fundamental elements that would render it unworkable due to the nature of the audiovisual sector in the State and potential issues relating to EU Law. In the case of TG4, for example, as a publisher broadcaster, it commissions all of its content production from Gaeltacht-based companies, largely in Galway but also in Cork and Waterford. Obliging TG4 to distribute funding equitably and proportionately throughout the whole island of Ireland could undermine its current commissioning model and the range of independent production companies that support this. It is natural that production companies providing for TG4 would be concentrated in Gaeltacht areas because more fluent Irish speakers live there. I would be worried about the unintended consequences for TG4 if we are providing that funding should be spread evenly. This amendment would also impact on the operation of the section 481 film tax credit. The relief is distributed by the Revenue Commissioners and is technically open to any EU-based company that meets the qualifying criteria. As a result, restricting the application of this relief to the island of Ireland, as suggested in the amendment, would actually appear to be a contravention of EU law.

I agree that seeking balanced regional development is important, and it is an objective of the Government. That is the objective behind the national planning framework, and it underpins the national development plan. However, I do not think it is appropriate to place such an objective in legislation as proposed by the Senators. The amendment actually appears to be contrary to EU law and could give rise to a number of unintended consequences.

I appreciate that the Minister will not accept the amendment and that she appreciates the intent behind it. Prior to Report Stage we could think about how we might write into legislation how the coimisiún might recommend on how to improve the balance of investment from a regional perspective, which is also there in the amendment. Perhaps we could have a discussion about that prior to Report Stage and come back to the House regarding how the coimisiún would advise and report.

Is the Senator pressing amendment No. 87?

Is the Minister open to adding to legislation at any point that an coimisiún might report on certain things?

The Minister summed it up well. I have particular concerns about a requirement on TG4 in this regard. However, the Senator is correct when it comes to trying to ensure that we seek to address questions relating to regional diversity. I wonder if, when she is reflecting on the Bill, the Minister could look at the section relating to the powers and functions of the commission. Under the powers and functions section, we could look at trying to ensure that there is greater diversity and so on. The intention behind this amendment may possibly be reflected in some of the provisions contained in other sections. Reflecting on the matter could prove useful. I certainly agree with the intent. Obviously, it is very tempting for me to talk about the Dublin-based media, especially in certain circumstances. Even in the development of online media, however, it would be very difficult to police what is proposed. When we look at the powers and functions of the commission, something could be built in there in the context of ensuring that the regional diversity of Ireland could be reflected. That may be where we could incorporate those points.

As I said, I appreciate the intent but I just cannot accept the amendment as drafted because there are a few fundamental issues with it.

If the Senator wants to have a discussion with my officials about what he is trying to achieve, that could be done because there are a number of complex issues - even about the role of the commission in this and what the Senator is trying to achieve. I am happy to ask my officials to engage with the Senator.

I will withdraw the amendment and reserve the right to resubmit it.

Amendment, by leave, withdrawn.

I move amendment No. 88:

88. In page 44, between lines 4 and 5, to insert the following:

“Duties to whole community of island of Ireland

8. The Principal Act is amended by the insertion of the following section after section 39:

“Duties to whole community of island of Ireland

39A. RTÉ and Teilifís na Gaeilge as the national public service broadcasters shall endeavour to ensure that in the event of any graphic or pictorial representation or map of Ireland that is broadcast or used in a broadcast to depict data or information for the public, every practicable effort is made to present data for the whole island of Ireland where possible, and shall always, including in cases where data or information for any part of the island cannot be depicted, present the island of Ireland as a geographical whole, maintaining the integrity of its coastline, and refraining in all cases from presenting any jurisdictional boundaries within the island as exterior coastline.”.”

It is a matter of considerable frustration to citizens in the North when they see the national broadcaster use graphs or maps that exclude some of the island albeit that it is a rare occurrence. We are simply making the point that RTÉ and TG4, the national broadcasters, should depict the whole island, including accompanying information that relates to citizens in the North, when they display maps and graphs.

Again, I understand the intention behind this amendment and take the point that it can be very troubling for people living on the island of Ireland, be they Irish citizens or not, to watch their public service broadcasters and seeing their part of the island of Ireland effectively blacked out or removed. However, I would be concerned about accepting an amendment that would be so prescriptive as to what RTÉ and TG4 could or could not display. Under section 98 of the Broadcasting Act 2009, both public service broadcasters are required to be independent in their day-to-day operations, which includes editorial independence as regards programming content. The purpose of this independence is to prevent political interference in the operation of RTÉ and TG4. Prescribing the format or content of any programming in such a detailed manner, including how data is presented, no matter how well-intentioned, would run contrary to the principle of editorial independence and I do not think it is appropriate for us as legislators to determine the type of content that should be displayed so specifically.

While this amendment is clearly seeking to prevent the recurrence of something that offended and hurt many people, it could set a wider precedent for the regulation of very specific types of content in primary legislation. As that is something we should seek to avoid in principle, I cannot accept the amendment.

I probably take exception to the argument that I have crossed the line in terms of editorial independence in RTÉ but I hear what the Minister is saying. I am simply making the point that it is a matter of considerable frustration to citizens, both Irish and British, in the North when their region is not included in the items that are-----

What would the Senator like to do with the amendment?

I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 89 has been ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 89 not moved.
SECTION 8

I move amendment No. 90:

In page 44, line 27, after “Minister” to insert “and the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media”.

This is a similar amendment in that if there is a register of media providers, a copy of that register would also be provided to the Oireachtas joint committee. It would be appropriate that if there is a copy of a register of media providers, it would be made available to the Oireachtas and the relevant committee. I expect that there may be a concern about the naming of the committee, as it is named in the amendment. Did amendment No. 89 get spoken to?

I will speak to that because it is important.

The Senator cannot speak to an amendment that has been ruled out of order.

I know but it relates to-----

Amendment No. 89 is out of order so the Senator cannot speak to it.

I will be bringing amendments in respect of the exception culturelle and listed sporting activities that are recognised as cultural assets to the State in the future and that they are broadcast. It is a bit different to the very wide provisions in amendment No. 89 because there is already a requirement that those would be available to citizens. I will come back and discuss that on Report Stage.

Section 46A(6) of the Broadcasting Act, as amended by section 8, requires an coimisiún to publish the register of video-on-demand services established in Ireland on its own website. Amendment No. 90 would require the commission to furnish a copy of this register to the relevant Oireachtas committee annually. I am not sure I see the value in this amendment, given that the register will be made publicly available by the commission under section 46A(6) and through the European Commission under Article 2.5b of the audiovisual media service directive. I propose to reject the amendment as it would appear to require the provision of information that will actually be in the public domain.

It would be my preference if the information was shared with the committee. Nonetheless I accept the point that it is in the public domain and can be accessed. In that context, I will not press the amendment, although I would prefer an ongoing dialogue between the Parliament and the Executive. However, I know we have the discussion on "laid before" and "shared" and so forth, so in that context, I will not press the amendment at this point.

Amendment, by leave, withdrawn.
Section 8 agreed to.
SECTION 9

I move amendment No. 91:

In page 48, line 21, to delete “€2 million” and substitute “€500,000”.

The concern here is that in respect of the relevant media service provider, the threshold is quite high in that it is only those with annual sales of greater than €2 million that are considered to fall under this remit. I propose that the annual sale threshold be €500,000 in order that more providers are captured. I am conscious that some of the areas of concern we hope will be addressed in terms of media service codes are areas where there is misinformation, poor practices or harmful conduct and the rewarding of that and which may be somewhat smaller. I appreciate and think it appropriate that the audiovisual directive distinguishes between large and smaller. I will come to this later. It is one of the reasons I am concerned about the very wide provisions in terms of cloud services or interpersonal communications. I know the audiovisual directive is specifically designed not to access and regulate everything that happens online but to regulate a certain scale of activity. We may have sufficiently impactful media service providers, including ones that may have poor agendas where the reward may not be in threshold or turnover. The effect and the benefits to those running those services may come in other ways. I am concerned that the €2 million threshold might leave a lot of things in limbo. Is there the potential to lower that? I respect the small to large component within the audiovisual directive but I wonder whether even within that, if €500,000 might not be a more appropriate threshold, particularly given the context of Ireland as a smaller country with an intrinsically smaller market.

I thank the Senator for her amendment. The figure of €2 million is derived from the definition of a media business set out in Part 3A of the Competition Act 2002, as amended, which provides for the media mergers framework. For reasons of consistency and proportionality, I believe that we should continue to use this figure and cannot accept the amendment.

Is this €2 million threshold applied in other jurisdictions? Ireland differs from countries that may have a very large market and a very large population.

The media in different jurisdictions may be different. Section 46I of the Broadcasting Act 2009 as inserted by section 9 of the Bill provides for a definition of "relevant media service provider". This is important as some of the duties and aspects of the media service code set out in section 9 of the Bill, such as those related to objectivity and impartiality, apply to this category of provider rather than to all providers of audiovisual on-demand media services. I believe consistency is important in these matters, as is alignment between the Bill and the media mergers framework.

I still have a concern on this issue but I wish to inquire into how it has been dealt with elsewhere. I appreciate that there are other categories under which persons can become relevant media providers. I am not going to press the amendment at this point but I will return to it on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 92 and 93 are related. Amendment No. 93 is a physical alternative to amendment No. 92. Amendments Nos. 92 and 93 may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 92:

In page 49, to delete lines 14 and 15.

I understand that the intention here, an intention that is shared by many of us present, is to address through the legislation certain matters. I have highlighted the issue of harmful content and, as the Minister will be aware, I have also advocated for addressing harmful conduct. There are concerns, however, in respect of how widely this might be interpreted and how it is framed. We need far more clarity on this.

Section 46J(1)(a) refers to "anything which may reasonably be regarded as causing harm or offence". That is so wide and potentially widely interpreted that it could lead to a significant curtailment of any form of engagement and could also create an unfair and unequal power dynamic whereby those who are resourced to assert their rights under this legislation can effectively have a chilling and silencing effect on those who may not have those resources.

I recently launched a new respect policy in NUI, Galway. It has a new process for the development of a respect charter. It is a really positive initiative. One of the interesting discussions there in the context of discussing respect and what is harmful or offensive was that one does not want it to be framed as offensive if one does not use exact, perfect and polite language, and for that to, effectively, be weaponised against those who are marginalised already in order to inhibit their voices. A power analysis is needed, effectively.

In considering respect, offence and power, we need to also consider what is the situation. For example, the legislation may have a silencing effect. A person with significant power and resources could effectively silence any individual who may not have any of the same equipment of power and who criticises that person or asks a question. That is my concern. That is why amendment No. 93, which is, perhaps, the more nuanced of the two in this grouping, seeks to get to what I hope is the intention, that is, to address harmful practices.

I say this as one who supports hate legislation and action on hate speech. I believe that is something we need to do in order to ensure an equality of participation in public life. It is part of freedom of expression that we address issues such as abusive contact, harassment or hate speech because those silence people and prevent them from being able to participate in public life equally. That is why amendment No. 93 seeks to replace the language in the section. The amendment would prohibit the broadcast of "anything that may reasonably be regarded as causing harm to a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter". That mirrors the language in section 46J(d), which refers to "anything which may reasonably be regarded as likely to incite to violence or hatred directed against a group of persons, or a member of a group".

I accept that the incitement against hatred provision has been too narrow and inadequate in addressing the targeting and harm that is done. That is why I can see there is need for something more than that, such as the provision in 46J(d). However, this very wide provision in the section as it stands in terms of "harm or offence" will basically allow the stating of offence to be a mechanism for those in power, possibly those making important decisions that affect people's lives, to silence criticism.

Amendment No. 93 is clear that it is doing what we need to do, which is to build on and go further than the incitement against or hatred or violence and nip it in the bud by addressing messages that cause harm or offence. It does not mean that every interaction on the Internet is covered. It really means that we are protecting those who are vulnerable and have been recognised by the equality Act as needing protection in terms of their equality and equality of participation.

Amendment No. 92 involves a straight removal, while amendment No. 93 takes a nuanced approach. I am concerned that the current phrasing is so wide that its interpretability could mean that it ends up disadvantaging or even being weaponised against those who may fall under those protected categories under the charter or, potentially, equality legislation.

I have a degree of sympathy with the amendments tabled by Senator Higgins and the whole question in respect of section 46J. The intention is clear but it will be a matter of interpretation. The difficulty with the section relates to the specific language that, "A broadcaster shall not broadcast ... [or] make available in a catalogue ... anything which may reasonably be regarded as causing harm or offence". The question there is who will determine what is reasonably viewed as causing harm or offence. It is certainly the case that some people take offence to programmes on RTÉ or other radio or television stations. We could all watch the same programme and some people would consider it perfectly normal while others would find offence. It will be a question of interpretation.

It comes back to the fundamental debate we had in respect of the powers and functions of the commission and how we ensure a balance between freedom of expression and the responsibilities around protecting privacy and reputation and other rights. I am conscious that many people who speak about the right to freedom of expression tend not to also speak about their responsibilities. Freedom of expression involves a responsibility not to spread misinformation or disinformation. One has a responsibility to take into account how one's words can harm others and so on. Equally, there is a responsibility to accept that things will be uttered with which one disagrees and takes offence. It is about getting that balance right.

I have sympathy with much of what Senator Higgins is trying to do, not just through these amendments but also the subsequent ones. I refer to the point in respect of "tending to undermine the authority of the State". I agree with the principle in that regard but it needs to be more clearly defined. I do not have a problem with a person suggesting that Government policy in a particular area is wrong and there should be major protests against it but if a person goes beyond that to engage in personalised abuse of a Minister or seeks to organise a protest outside the home of a Minister and uses broadcast media to do so, that is stretching over the line.

What really needs to happen more is that there needs to be a reflection on some of the language in the Bill. It is clear within the section what it is intended to achieve but I share Senator Higgins's concern because some of this is a question of interpretation. We might have in our head what it means but I am concerned that, down the line, one may have a commission that will exercise its powers in a particular way. A Minister or commission that is not as keen on free speech and freedom of expression might seek to interpret this in a different way. This entire section just requires a bit more clarity.

I welcome that this amendment removes the causing of offence as a reason for broadcasters to remove content. In many ways the speaking of truth always risks offence but this should not be a reason for truth not to be spoken. Many excellent pieces of media deal with difficult and divisive topics such as films or documentaries that may well cause offence to some but there is no right not to be offended. We must ensure that free speech remains free and that the messages found in art are available to the public to be assessed according to their merit.

Does the Minister wish to respond?

Amendments Nos. 92 and 93 would have the effect of changing a requirement for broadcast and video on-demand services not to broadcast or make available, "anything which may reasonably be regarded as causing harm or offence", to a requirement not to broadcast or make available"anything that may reasonably be regarded as causing harm to a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter [of Fundamental Rights of the European Union]".

In terms of the reference to the charter in amendment No. 93, I note that section 46J(1)(d) which this amendment seeks to amend as section 46J(1)(a) already requires that service providers not broadcast or make available "anything which may reasonably be regarded as likely to incite to violence or hatred directed against a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter". This reference is to give effect to Article 6 of the revised audiovisual and media services directive. Going further than the directive in reference to the charter, without a firm basis in existing EU legislation, may give rise to unintended consequences. Given one of the grounds in Article 21 of the charter is a, "political or ... other opinion", the amendment may inadvertently prevent criticism of political groups. Accordingly, I propose to reject the amendment.

In terms of the outright deletion proposed by amendment No. 92, I cannot accept this for two reasons. One of the reasons is that this requirement, in part, transposes the requirement in the revised audiovisual and media services directive for member states to ensure that media service providers do not make available programmes which may impair the mental, moral or physical development of children. The second reason is that I believe it is correct that media service providers are held to a high standard in terms of the programmes they, as editorial services, make available to the general public and as such, this provision has value and serves the public good.

Does Senator Higgins wish to sum up?

The Minister has described her concern that amendment No. 93 would have too wide an application but, as worded as the moment, the language has that potentially very wide application. There is no indication in terms of what will be determined as reasonably causing harm or offence. Would harm include harm to interests? Would a documentary that exposes bad practice by a particular actor or corporation and affects it financially be harm to interests? Is that reasonably-caused harm? It is not clear. In terms of offence, is it offence against a person's views? We know that there are those who are very offended by other people's weddings. We heard much of that during the marriage equality referendum. It is still very widely framed. I understand how the Minister believes it might be interpreted but it is an extremely wide and interpretable phase which needs clarity.

If the concern is the reference to the charter, I have sought to be constructive in the amendment with regard to mirroring the language. This is not a replication because section 46J(1)(d) specifically relates to incitement to hatred or violence. The other provision relates to harm or offence. It is not replication but I sought to mirror that language. Would it be appropriate to use the language in respect of our equality grounds? Can we put in provisos with regard to being reasonably interpreted as causing harm or offence? There is a danger that we come to a point, even though we are trying as a society to move ourselves forward towards more equality and human rights, at which this legislation sets in place an absolute reification of existing power structures whereby anything that might offend or harm existing powers or interests could effectively be challenged.

We have seen the weaponisation of poorly-drafted measures that were meant to be used for equality but have actually been used and targeted against minority groups. That is why we need to be very clear. The language is very wide. The Minister may not wish to accept my amendments but I hope she will listen to the point that this is extremely widely interpretable at present. I am not assured as to where "reasonably considered" comes in. It may be just a fact that it causes offence, harm to interests or harm in another form but it is almost a necessity or proportionality test. Is it a disproportionate harm or offence that is caused that is disproportionate to the public good?

This is the value of debate in the House. I can see the point the Senator is raising. While the Senator's definition is too wide, I can see the issues she is raising and recognise there is an issue in the language. I propose not to accept amendment No. 93 but to ask my officials to look at the language of what is there, given the concerns that have been flagged in the House today.

Does the Senator accept that?

Does the Senator wish to withdraw the amendment?

I withdraw amendment No. 92.

Amendment, by leave, withdrawn.

I move amendment No. 93:

In page 49, to delete lines 14 and 15 and substitute the following:

“(a) anything that may reasonably be regarded as causing harm to a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter,”.

I will withdraw the amendment and reserve the right to turn to the issue on Report Stage.

Amendment, by leave, withdrawn.

Amendments Nos. 94 and 95 are related. Amendment No. 95 is a physical alternative to amendment No. 94. Amendments Nos. 94 and 95 will be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 94:

In page 49, to delete lines 27 and 28.

This is a concern I have in terms of the wideness of the language. Section 46J(1)(e) prohibits the broadcast of, "anything ... tending to undermine the authority of the State". That language is extremely wide. I know it is taken from the Broadcasting Act 2009 but we are making new legislation. The language was not appropriate in the Broadcasting Act 2009 and we should be putting forward appropriate language now rather than taking a proviso from the past. Many other measures in the past silenced different voices within Irish media.

I know that the language comes from the Constitution but, to be clear, the language in the Constitution already exists.

It does not need to be replicated in legislation. If it is put in here, however, one is creating almost a tension with the constitutional interpretation, which is there and is available to anybody who wishes to go to the Supreme Court. In the case of the Constitution, however, it is balanced by all of those other rights on expression. It is not a sentence floating on its own but is placed in that context. Instead, we have some of the language of the Constitution being given here for the commission to interpret, effectively, rather than by the Supreme Court.

I know that that was the case in the 2009 Act, which I believe was an error. We need to be clear in how we address these issues. There is a concern. For example, if there are criticisms of the actions of the HSE, does that undermine the State's authority. We also saw a documentary on local authorities and their governance. Where will the interpretation of the tendency to undermine the authority of the State be? Are we effectively giving power to a body to interpret a constitutional phrase? We have, as is proper, translated those measures already into very properly nuanced and thought-through legislation and that is what my second amendment in this set of amendments addresses. This is the one where we talk to the Offences against the State Act. This Act was there to give the legislative framework in interpreting what are offences against the State, including the undermining of the State’s authority.

It would be more appropriate if this legislation was to say anything which may reasonably be regarded as an offence, or a potential offence, under the Offences against the State Act 1939. Yes, that is an appropriate caveat that would be applied, which is of the concern or risks to the Constitution. At least in that Act, one is talking about a proper piece of legislation that can be referred to rather than simply a phrase taken from the Constitution and placed here out of context to the other pieces.

A potential tension is also created between the Offences against the State Act and this proviso. Again, this proviso was in the 2009 Act but it was not appropriate or nuanced enough in that Act and we would be better to link it to an actual set of concerns that are enumerated as offences under the relevant legislation. This is my attempt to make it clearer and to avoid unfortunate over-interpretation but perhaps there are other ways to approach this.

I thank the Senator for her amendment and contribution. She knows the exact background to this in respect of amendments Nos. 94 and 95. I agree on first examination that some of the wording in the Bill does look old-fashioned, particularly the language in section 46J(1) which requires: “A broadcaster [or] an audiovisual on-demand media service [not to broadcast or] make available … anything which may reasonably be regarded as tending to undermine the authority of the State". As the Senator has correctly pointed out, that language has been carried over from existing provisions set out in section 39(1)(d) of the extant Broadcasting Act 2009 which, in turn, reflects previous legislation and, ultimately, Article 40.6 of the Constitution, which sets out that:

The State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

I would note that while the understanding of the country of the meaning of this article has definitely changed over time, it does contain and imply a number of fundamental rights, including freedom of expression, while acknowledging that such rights may be limited in the public interest. This notion of fundamental rights needs to be balanced, depending on the facts on the ground, and that they are not absolute is something that we can all agree on. This article requires the State to limit freedom of expression in certain instances and the courts have since set a high bar as to when it is appropriate for the State to do so. It is right that this language and associated jurisprudence is carried forward through the Bill. As such, I do not intend to accept amendments Nos. 94 and 95 but I understand the Senator’s position.

I thank the Leas-Chathaoirleach and the Minister. I was keen to hear the Minister’s response before making my contribution. Again, this relates to the principle or language around this and it is important that we have something that reflects this in the legislation.

My concern is around when we talk about the broader media environment and how we can effectively regulate what is happening in respect of those who are in receipt of broadcasting licences and so on. As a general rule, most of those behave responsibly and would not look at broadcasting something that will undermine the authority of the State. Unfortunately, they are competing in many cases with online or digital services which, frankly, do not have to deal with such regulation.

This issue is around how we can ensure that we get the balance right which is a little tough. If we are hammering RTÉ around perceptions as to whether or not a particular programme may or may not be looking to undermine the State, one may also have online websites and platforms, which I will not describe as news providers, that do not believe in trusted journalism or in evidence-based stories, and which will put ideas out about undermining the institutions of the State. We have to look at an appropriate balance.

It is important that we have something in the legislation along these lines. I appreciate that this is the language of the past and of how we are trying to apply it in a modern environment. In that sense, I am agreeing with both Senator Higgins and the Minister. I am reflecting on how we can ensure that when we have the media commission up and running, the institutions of the State are protected but that we allow, at the same time, for justified criticism. It is a question of getting that balance right and it may be just a case of looking again at some of the language.

The Minister outlined what might be the appropriate language. In the Constitution, this language is very carefully caveated. That is what I meant by taking a small section, but out of context. The Constitution realised the risk of an over-interpretation of the undermining of the State clause. It therefore has the language which says: "preserving their rightful liberty of expression, including criticism of Government policy", and goes to that trouble while continuing: "shall not be used to undermine public order or morality or the authority of the State".

Perhaps it is important that the language that is there in the Constitution, if we are using constitutional language, has a clear caveat of: "preserving their rightful liberty of expression, including criticism of Government policy" and that this is also reflected as an appropriate counterbalance to the undermining of the authority of the State. This is an important caveat for the interpretation of that proviso.

I completely agree that that should apply to all and should be reflected with broadcasters as well as those new online media providers who are coming under this legislation. That may already be the case as this section amends the Broadcasting Act more generally.

That is a potential way to ensure that there is a clarity or perhaps it is around adding a clause that says that this provision should be interpreted in line with whatever caveat one wishes to use. That criticism of Government policy piece is very important and it is very important that there is no risk. I am aware that the Minister has said that the courts have set a high bar but as legislators, we are not lawyers, we should always endeavour to have the safeguards built into the legislation we pass and reflected in there rather than simply leaving it to individuals to seek these rights through the courts.

I did say the court has set that high bar. This is a tried and tested provision which reflects the safeguards contained in the Constitution. It has been operated in a balanced way in the years since it has been on the Statute Book. As a result, I will not be accepting amendments No. 94 and 95.

Amendment, by leave, withdrawn.

I move amendment No. 95:

In page 49, to delete lines 27 and 28 and substitute the following:

“(e) anything which may reasonably be regarded as an offence under the Offences Against the State Act 1939.”.

Amendment put and declared lost.

I move amendment No. 96:

In page 50, between lines 13 and 14, to insert the following:

“(c) where programmes of a political nature are broadcast, that regard shall be had to the size of the political party or grouping by measurement of representation in the Oireachtas or results at elections in the preceding five years, in the allocation of time for such programmes.”.

Amendment, by leave, withdrawn.

I move amendment No. 97:

In page 50, between lines 34 and 35, to insert the following:

“(4A) Subsection (1) should not be interpreted as constraining a broadcaster or a relevant media service provider from appropriate examination, investigation, interrogation, debate or questioning in respect to news or current affairs which—

(a) concerns public policy, or

(b) the actions of a Government, a Minister, a designated public official or a public body.”.

This amendment relates to the same issue of ensuring that we maintain appropriate accountability. I suggest that a new subsection be added to this section regarding news and current affairs that makes it very clear. It would read:

Subsection (1) should not be interpreted as constraining a broadcaster or a relevant media service provider from appropriate examination, investigation, interrogation ... or questioning in respect to news or current affairs which—

(a) concerns public policy, or

(b) the actions of a Government, a Minister, a designated public official or a public body.

There is a concern in that the way in which this is framed must be such that the treatment of current affairs, which includes matters which are the subject of either public controversy or current public debate, is fair to all interests concerned. Public controversy and current public debate are very narrowly framed in that regard in that there is no consideration of, for example, public policy or the fact that there may sometimes be issues which are not the subject of current debate or controversy. I would love to see the media cover issues not simply because they are the subject of controversy or debate but because they are issues of public policy that need examination or actions of Ministers that need interrogation. There is a concern that, because of the way in which this is framed, there could be a sense that if, for example, a documentary were to highlight a new area of concern, it would be effectively through the fact of its interrogation by the media that it would become a matter of public concern or public debate. Similarly, nothing should constrain the challenging of a Minister, a public official or anybody else by interrogation by an interviewer. The present framing is a little strange. I would like clarification to the effect that it shall not constrain a broadcaster from examination, investigation, interrogation, debate or questioning. That would give a sense of a greater safeguard.

Is there a grouping or is this a stand-alone amendment?

It is a stand-alone amendment.

The ability of the media to freely and independently express opinion is both a core value and a cornerstone of democracy. Without free and independent media, a well-informed citizenry cannot exist and democracy cannot function in any meaningful sense of the word. That is what the Constitution provides for and what this Bill reflects. Within that framework, investigative journalism plays an important role. I absolutely understand the intention behind amendment No. 97, which seeks to mitigate a perceived risk that the Bill, as initiated, would undermine the ability of media service providers to carry news and current affairs content which is critical of the Government or public officials or would have an adverse effect on investigative journalism. I do not think, however, that section 46(1) of the Broadcasting Act 2009, as inserted by the Bill, needs to be qualified in the manner suggested by the amendment. The language used in the section reflects similar language in the extant Broadcasting Act, which has not to date exercised a chilling effect on broadcast journalism. For the same reason, I do not accept amendment No. 97.

I agree with the Minister. What is in section 46L comprehensively covers what is suggested in the amendment. If we should look at anything as having a chilling effect on broadcasting, I suggest it is probably more the defamation laws than anything else. It should be noted that no party leader or Government Minister is currently suing the broadcaster under the defamation laws. It is the defamation laws that probably need to be examined more in some of this area, but section 46L, as currently worded, sufficiently covers some of the concerns the Senator Higgins raises.

My concern remains. This is about the treatment of current affairs. I object somewhat to the framing of current affairs in such a narrow way. That is a concern, even culturally, in that current affairs is framed as the fight of the moment. I accept the Minister's caveats in respect of the Broadcasting Act, but I am concerned that we are missing the opportunity to strengthen and improve things slightly in respect of the Broadcasting Act by the wholesale transfer of many of its provisions. I would be happier if there were a further clarification. I accept that the Minister's expected interpretation will align with my amendment, but I always prefer to have that in legislation.

The functions of the commission safeguard liberty of expression and explicitly safeguard the democratic values in the Constitution. The text that is proposed to be deleted and-or replaced has been carried forward from the Broadcasting Act 2009. It has been on the Statute Book for more than a decade. To date, we are not aware of any adverse impact on public discourse or investigative journalism from those provisions. As a result, I will not accept amendment No. 97.

I will withdraw the amendment and return to it later.

Amendment, by leave, withdrawn.

I move amendment No. 98:

In page 51, to delete lines 1 to 4 and substitute the following:

“(6) The Commission may seek a derogation in whole or in part from the requirement in subsection (5) in the case of a sound broadcasting service, if the Commission is satisfied that the derogation would be beneficial to the listeners of the service, with such a derogation being for a designated period time and subject to the approval of a motion by the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media.”.

There is an obligation on sound broadcasting services to ensure that they devote a certain proportion of their time to the broadcast of news and current affairs programmes. It is really important for public discourse and public debate that there be appropriate coverage. This comes back to a point I made previously about the exception culturelle in respect of the recognition that there are public good and collective benefit purposes to broadcasting and that its regulations need to reflect that.

That related to the provisions in respect of certain programmes that have been identified by the State as involving a public entitlement of access. Certain areas should not be broadcast commercially but, rather, should be available to all citizens of and everybody else in a state. It is important that the whole island will be able to access things like, for example, the list of events including the All-Ireland Gaelic football or hurling final.

However, the amendment relates specifically to the obligations in respect of news and current affairs. The Bill as it stands provides, "The Commission may authorise a derogation in whole or in part from the requirement" to give 20% of broadcasting time to news and current affairs and to ensure at least two hours of that time is within daytime hours. That derogation is there but I worry that applications for a derogation will be made right after a licence is granted. A station that is going to begin broadcasting may go straight in for the derogation and then have it forever. Its business plan would be formulated on the assumption of an ongoing derogation. The amendment is simple. It does not take away the power of the commission to authorise a derogation but simply states that derogations would be for a designated period. I have also suggested - this may be an overreach - that the Oireachtas joint committee would have to approve a motion in that regard.

It is not simply that it would be nice for stations to do news and current affairs broadcasting. The provision of news and current affairs broadcasting is part of the purpose and intention of the broadcasting landscape. It is not solely commercial. I worry that, effectively, the derogation would be beneficial to the listeners of the service. Sound broadcasting services could say their market does not care about news and current affairs but just wants Christmas music or 1960s music all the time. The services may point out that is what their market or demographic wants but, in fact, a condition of broadcasting in the State is that it must contribute to the public good through public debate, discourse and information. I am concerned about the derogations. I am concerned they might be widely used and services may get a derogation and have it forever. Derogations may be appropriate in some cases but they should be reviewed periodically. I ask the Minister to indicate her views in respect of the time limit and the kind of political safeguard. I am interested in her views on either or both of those provisions.

Senator Higgins's points are well made and go to a wider point of debate in terms of the value of news, from where we ascertain it and the value put on it by the owners of the broadcasting stations. I refer to the points made by Senator Higgins regarding putting a time limit on the derogation to ensure that, as she stated, the business models are not on the basis of a continuing derogation in order to seek to fulfil what market research has indicated the station audience is. Unfortunately, many of these commercial stations are now fighting to stay alive. We saw that during the pandemic. I pay tribute to the Minister, Deputy Catherine Martin, because the sound and vision fund kept them alive. In fairness to John Purcell, he appeared at the committee and stated that. He stated that in the region of 30 stations were on the verge of collapse and would have collapsed were it not for the intervention of the Government and the sound and vision fund. He stated that kept the stations alive. On further probing in the course of those discussions, it emerged that the marketplace for these stations is becoming extremely tough. There was a migration of advertisers to different platforms because of the pandemic and that has not fully recovered since. The business models have changed. When stations are reassessing their business models, they look towards what their marketplace is in an ever-competing world and the whole necessity for news, current affairs and sport broadcasting drops down the list. The stations made that point to the committee in terms of advertising time and the requirement for news and current affairs and so forth. This has also had an impact in terms of the diminution of radio station newsrooms. That is very sad thing for young journalists coming forward in terms of the opportunities that present themselves. The value placed on news and current affairs in the context of newsrooms has diminished, but that is not the doing of news editors. God, they are fighting a losing battle. They have become despondent as well. The point made by Senator Higgins in respect of not facilitating an ever-running derogation is well made. It is certainly worthy of debate, and I support that.

I thank the Senator for those points. I add my voice in terms of thanking and acknowledging the Minister in the context of the interventions and support. She will be aware that I engaged with her office on the issue of local radio in particular and the really important role it played and plays, particularly during Covid, but also its wider role. I am speaking about this issue of news and current affairs because they are essential public goods. We will, no doubt, later discuss the dangers of misinformation but we also need to speak about the importance of information and news and current affairs discussions. One of the most real and constructive places in which those discussions happen tends to be at local level. I acknowledge that the role of local radio in that regard is important. It is often the case that when an issue is discussed in that concrete and place-based way, there can actually can be a lot of light and progress on it. I am looking to that requirement but in the context of certain providers and certain terms of local radio, it also probably needs to be resourced in an ongoing way because it is part of the public good of broadcasting, as well as democracy and democratic engagement, that local radio stations are able to foster that kind of local news and local connection to policy decisions and local debate. I acknowledge the resources the Minister has directed in that area. There should be a resource support as well as this requirement support. My core point however, is that there should not be endless derogations simply based on a purely commercial rationale.

I echo the comments of my colleagues. This underpins the reason we need a statutory broadcasting committee to be established. As the Leas-Chathaoirleach will recall, he ruled out of order my proposed amendment in that regard but this does speak to why some of those specific issues in respect of broadcasting need to be addressed. Having that statutory broadcasting committee within the legislation would help in that regard. I also support the principles.

The Senator has an elephantine memory.

As Senators will be aware, an coimisiún will be responsible for issuing permanent and temporary sound broadcasting contracts following enactment of the Bill and dissolution of the BAI. The amendment requires an coimisiún to receive the approval of an Oireachtas joint committee before authorising a derogation from the requirement that a sound broadcasting service shall devote not less than 20% of the broadcasting time on the service to news and current affairs programmes. Granting such derogations is a matter that should be left to the commission to undertake as an independent regulatory authority and I, therefore, cannot accept the amendment. The BAI currently grants such derogations.

I remind Senators that licences are for a finite period. It is a key principle that an coimisiún should be able to make regulatory decisions free from external interference, particularly from political bodies, as is required by the audiovisual media services directive. Requiring specific approval, as the Senator referred to in her question on the political side, by an Oireachtas committee may represent undue interference in the regulatory independence of an coimisiún, which would be likely to approve a number of temporary sound broadcasting contracts throughout the year, such as that for Christmas FM. There is also the practical consideration that Oireachtas committees fall on the dissolution of the Dáil and would therefore not be available to approve a derogation at certain stages. Consider how long it took the past two Governments to form. The committees were gone for some time. That could be an issue.

I have nothing against any radio stations. They all do their different work. Will the Minister address the first part? I am looking to how we can progress this. I accept the Minister's point on the committee and will not press that element. As I intend to return to this on Report Stage, I would appreciate it were the Minister to clarify her view on the question of a time limitation. There are periods, seasonal and others, in which it may be appropriate that there be a derogation but I believe it should be a time-limited derogation. My concern is licences and derogations could be issued where the full identity of that sound broadcaster for a long period is in no way contributing to the public good.

Even the fact it is limited to the listeners of that service is an issue. The duty is not solely to the consumers because there is a duty to the wider public good. News and current affairs cannot and should not be broadcast based only on the fact that people are crying out for them. There is a reason for the requirement that they be broadcast. It is not solely demand-led but also public good-led that there be news and current affairs components in broadcasts. I accept the Minister's points on the independence of the commission and its function but ask her to address the question of a time limitation and the issue relating to the benefit to listeners of the service and the wider public good.

I accept what the Minister said on the independence of the BAI and the new commission but it is right that we express our opinions as politicians. Sometimes we say that those in politics cannot express their opinions and it should be independent. These Houses are where we formulate the framework by which people operate. I know the Minister recognises that this is all the more important because the media world is changing and there will be casualties. In the UK over the past ten or 20 years, particularly regarding local media and local newspapers, the death of the local press is frightening.

I met the UK media secretary and discussed this at a meeting in Berlin where we tried to come up with ideas. They have introduced ideas for the per cent scheme where they help through subventions to newsrooms to employ young journalists, in order to make sure young journalists continue to come forward. We are seeing and will continue to see casualties, certainty in the local newspaper industry in this country. I was in a newsroom when it went under. That is equally the case for radio stations.

The point made by John Purcell was that Government and the Minister kept those stations alive but that we should not fool ourselves into thinking they can stay alive. There will be casualties. Pressure comes to bear from these stations on the broadcasting authority to let them follow the business model that will satisfy their commercial interests and keep their product alive. Here we get into the scenario of dumbing down the media. We saw the necessity for good news and good current affairs during the pandemic. RTÉ ran magnificent ads concerning where people ascertain their news. We are lucky to have a State broadcaster that did that. It is important to maintain that level of integrity. I monitor news organisations in different countries. This country has one of the best but it is under pressure and when it comes under pressure, commercial interests can start to weigh because they are all owned, with the exception of RTÉ, by private interests. I accept what the Minister has said but it is right we had the debate and that we frame it in such a way. That is why I think the timeframes Senator Higgins is calling for are worthy of consideration.

Before Senator Pauline O'Reilly takes the Chair, as I did not formally do it earlier, I welcome the Minister as my neighbour from home and join in the recognition of her support for local radio.

I also welcome the Minister to the Chamber.

I thank the Acting Chairperson. I am not accepting the amendment for two reasons. There is the political interference and difficulties with the Oireachtas committee, which Senator Higgins accepted, but also the fact that the BAI already grants such derogations. That will be carried over by an coimisiún and licences are for a finite period, which has not caused an issue to this point.

Because I accept the Minister's point on the committee, I will not press the amendment but I will bring and press amendments in respect of the derogations. The case was made eloquently by Senator Cassells concerning the danger of slippage into media and broadcasting solely as a product, rather than with a public good purpose. This legislation is meant to transpose the audiovisual directive, which has goals around the cultural and public role of broadcasting, rather than simply its commercial purposes. This is an opportunity to address that for all broadcasters. Otherwise, there is a strong risk of a race to the bottom whereby people do not get news information or current affairs discussion from broadcasters within the State but will be pressed to seek information elsewhere, including from those who have other interests, such as disinformation. I accept the first half of the Minister's concern but the second half in terms of not putting a time limitation on this runs a strong risk of normalising derogations. I reserve the right to bring back an amendment on and I may bring amendments on a limitation on the proportion of licences that can contain a derogation.

Amendment, by leave, withdrawn.

I move amendment No. 99:

In page 51, between lines 13 and 14, to insert the following:

“(1A) The inclusion of advertisements under subsection (1) shall be subject to such restrictions and regulations as may be set out in the relevant media service code.”.

As this is an area of some discussion, I will withdraw and reserve the right to reintroduce.

Amendment, by leave, withdrawn.

I move amendment No. 100:

In page 51, to delete lines 14 to 21.

Amendment, by leave, withdrawn.

I move amendment No. 101:

In page 51, line 17, to delete “end” and substitute “purposes”.

I will withdraw the amendment as this is an area of ongoing engagement.

Amendment, by leave, withdrawn

Amendment Nos. 102, 126, 127 and 148 are related and may be discussed together by agreement. Is that agreed?

I move amendment No. 102:

In page 51, between lines 21 and 22, to insert the following:

“(2A) A broadcaster shall not broadcast, and a relevant media service provider shall not make available in a catalogue of the relevant service, an advertisement which seeks to promote gambling or other speculative financial activities which pose a risk to a person, including the trading of cryptocurrencies.”.

This group of amendments relates to a significant issue. Senator Wall, who is not here today, has been very active on this and others in the House have highlighted it in the past. I refer to the advertising and promotion of gambling. In the amendment, I seek to address the issue of speculative financial activities which pose a risk to the person and within that I include the trading of cryptocurrencies. We have had discussions about gambling as an area that needs to be addressed in terms of advertising and promotion.

Gambling is a good example of the distinction we have spoken about in terms of harmful content and harmful conduct. In terms of gambling advertising, we know there have been practices whereby persons are profiled. Somebody who has stopped taking risks with gambling will be targeted with promotional materials to encourage him or her to start gambling again. It is a clear example of where the issue is not solely about advertising content, but also the way in which the content is delivered and directed towards, and causes risk to, certain persons. In that regard, that is what this set of amendments seeks to address in different ways.

We have also heard that there are practices which may not be labelled as gambling in the classic sense but, in effect, have a similar effect and are designed to instil the practices regarding gambling. One of the issues which has been highlighted is the use of loot boxes in gaming, in terms of putting in place gambling incentives and structures for children at a young age. I am also raising the issue of the trading of cryptocurrencies, which create a significant risk to many persons in terms of financial risks. Cryptocurrencies are a risk to all of us in terms of their environmental impact. They are an example of an issue which is increasingly clearly in need of financial and environmental regulations or, possibly, prohibition.

Amendment No. 126 was tabled by Senator Black and I will move it on her behalf. It seeks to insert the regulation of these areas into the media service codes and identifies commercial communications regarding gambling as one of the issues which potentially affects the general public health interests of children.

Amendment No. 127, as I said, deals with gambling and the advertising of speculative financial activities. I understand amendment No. 148 was tabled by Sinn Féin. I will ask it to speak to that. It has a similar intent.

I agree with the principle that we need to gambling control legislation. The House will recall that during the first session on this Bill my colleague, Senator Cassells, spoke with a good degree of passion around how we need to regulate that space, in particular around how there has to be close co-operation between the commission and gambling regulator. It is about more than advertising.

I have a problem with amendment No. 102. It refers to not allowing advertisements which seek to promote gambling or other speculative financial activities which pose a risk to a person. Virtually every financial activity into which we enter or engage in is speculative. Most radio advertisements refer to the fact that the value of something can go up and well as down, including pensions and so on. The question also needs to be asked in respect of gambling about whether we include the national lottery. Would the lovely lottery advertisements about winning holidays be included if we accept this amendment?

We need regulation in that space. We need levels of education so that people can understand what they are faced with. This speaks to a broader question around people's level of financial knowledge. Whether that applies to crypto or anything else, it is about people's own level of financial awareness. A group of young people from south Dublin visited Leinster House today. They would love to have much more of an understanding of the context around areas like savings and investments as part of the education system.

Whether we are talking about financial or savings products or, arguably, insurance products, depending on how they are interpreted, any of those could be viewed as speculative financial activities. I have a problem with how the amendment is worded. We have previously proposed that there would be close liaison around this, whereby the commission would liaise closely with the new office of the gambling regulator to tackle some of these challenges, in particular the scourge of online gambling. That would be a more effective way to address this.

I do not have as much money as Senator Byrne, therefore the need for me to look at speculative financial products is probably nullified.

The value of the product goes way down.

His suits are fancier than mine.

In respect of the amendment, Senator Higgins knows my passion for this subject. I will never forget last summer. One of my favourite things when I am not attending a match on a Sunday is listening to "Sunday Sport" on RTÉ Radio One. In between matches there are some very good documentaries and other programmes. There was an absolutely fantastic piece with Oisín McConville, one of the greatest GAA stars ever, whose life was, unfortunately, blighted by gambling. He spoke extensively on Radio One for about half an hour on all of the various low points in his life. It was a stirring piece. I have great time for the man. He came to my GAA club to talk to young people to warn them about the impact of gambling and what it can do to them. He is an ambassador not just for our sport, but for our country.

When the piece was over, Radio One said it would break and go to the opening day of racing at the Curragh, brought to the audience by BoyleSports. I said, "Oh my God." That goes back to the earlier point on the balance with respect to commercial reality. I remember as a young journalist in a newsroom being told in no uncertain terms that commercial reality dictates whether we stayed alive. RTÉ did its public service by having a piece of programming that spoke to the heart of a matter of one of the greatest blights in our country, and skipped seamlessly from that into a feature race being sponsored by one of the largest bookies on the Continent. It almost defied belief, but it did not really because that is the reality we are living in.

This needs to be addressed. It goes to why we have our amendment, which I ask the Minister to accept. In terms of the Bill reflecting Government policy, we will establish a gambling commissioner to deal with all of this. It has become entrenched in our society. When sports stars are interviewed after matches there are gambling logos behind them. There are a lot of difficulties about saying that we are going to ban, from a broadcasting sense, gambling products because they are so entrenched it will lead to many difficulties.

We must look at this as a whole, which is why the gambling commissioner is important. This is how we will tackle it. It is why we asked for an amendment. It was simply for this Bill to reflect Government policy on gambling because it will cross a multitude of things. It can happen. I made the point regarding how the French Government banned it for the feature match of the Six Nations. They could not show the Guinness logo on the pitch because the French Government had banned it. It can happen. It happened in Formula One, snooker and places where tobacco had a stranglehold. That was broken and the same thing can happen with gambling. It must be addressed as a whole. I support Senator Higgins 100% regarding what she is trying to do but I think we should do it through the gambling legislation and the gambling regulator. It must be reflected in the Bill, which is why we are saying it should be reflected in Government policy.

How do I follow that? It was very passionate, as always. We know how heartfelt the Senator is about the gambling industry in this country. I must support what Senator Malcolm Byrne has said. I take slight issue with this amendment. I welcome so many provisions of this Bill, which advance gambling regulation. However, I think that decentralised blockchain currencies have a role to play in the digital and financial future of the world. It is education rather than censorship that is key in this area.

I will speak to amendment No. 148. It was a recommendation by the joint committee in its pre-legislative report. I know the Minister has given a rationale about how financial harm is not content, which is required to be regulated under the audiovisual media services directive. We accept that Ireland is in the process of finally establishing a gambling regulator. If this amendment is not accepted by the Minister, which presumably it will not be given her previous response, we can put in an amendment on Report Stage or later in the other Chamber calling for a relationship to be established in legislation between the media commission and the new gambling regulator. Harmful gambling is a major problem in this country and online gambling has seen the problem explode and has made it much more secretive in nature and easier to hide. Online gambling and the advertising of gambling on social media sites is an issue of concern, particularly when we consider isolation, the constant availability and hidden nature of online gambling. It is clear that the media commission has a role to play in addressing this and this is the rationale for amendment No. 148.

I fully concur with the views of everyone here. I personally believe gambling should be banned but on the way this is stated, I note Senator Malcolm Byrne mentioned the national lottery, for which an exception must be made. It is regulated separately and is not a for-profit business. It is for good causes. We may have to look at the €160 million that was announced a number of months ago from that. I am not in favour of that amendment.

There are different issues here and I can sense some of them have stronger support than others. I will give the reason while I have both of them. I am very happy for them to be dealt with separately. I am not happy for it to solely rely on engaging with the future commission because I do think gambling is one of the key examples of that harmful content and harmful conduct piece that needs regulation. I think it is really important that it is clear. Some of the amendments simply say that this may be one of the areas the commission would address. I think it should be named and a signal sent because it is vastly profitable. The profits of some companies have quadrupled during 2020 to 2021. It is harmful to persons. I was looking at some information and discovered that people in Ireland lose over €1 billion per year. People are losing significant amounts of money. I, as, I am sure, everybody here, can think of multiple examples of people whose lives have been ruined and ruined very quickly by gambling and gambling addiction. Ireland has a very high level of that addiction, which is where the harmful conduct piece comes in. Even if some of my hard prohibitions may not be accepted, I want to be really clear that targeting in terms of addiction, including gambling addiction, needs to be really addressed as a form of harmful conduct.

I will speak to the issue in terms of speculative financial activity. It is slightly different and I recognise that they are not the same. Regarding removing gambling from sports events, about which Senator Cassells spoke very passionately, it can be done because we did it with alcohol. We were told it was impossible to do it for alcohol. I pay particular tribute to Senator Black, who fought really hard around those issues in terms of the alcohol regulation Bill. We were told they were so intrinsically entwined that it would be impossible to separate out alcohol advertising and sport but it can be done and similarly it can be done with gambling.

I am speaking to speculative financial activity and cryptocurrency because I am seriously concerned. Regarding the driver of the crash in 2008, the bailouts we had to have, the State underwriting speculative activity on a massive scale, that kind of vulnerability and exposure we had in 2008 where those who effectively gambled ended up being bailed out by the State, I worry that we are seeing a new cohort and a new risk emerging that has not been identified early enough. Again, there are very large interests with lots of money. There is this same theme of trying to get people in on the stock market early. I worry that we are creating a situation where effectively, sometimes very vulnerable people will be used as a human shield against the regulation of cryptocurrency because ordinary people will to be a small extent tied in and people will be vulnerable if there is regulation or an end to cryptocurrency mining, which environmentally we may need to do. I worry that we will have that same situation whereby so many ordinary persons will find themselves tied into the fate of a speculative pyramid scheme that the State is effectively in a position where it needs either light-touch regulate it or bail it out. I really worry that we are creating a major risk and that individuals will be vulnerable to that. This is an area we need to regulate even from an environmental perspective, as well as from the perspective of financial risk. I am worried that persons with very little money to spare will have been targeted by predatory advertising that promises them things that will not be delivered and they will be the ones who suffer from any negative outcome from crashes relating to cryptocurrency. I am very serious about that area. I accept that they are different areas but they have a similar target and way of operating but I am happy to address them separately in future amendments on Report Stage. I am concerned about both.

I welcome the intent of amendments Nos. 102, 106, 127 and 148. I agree with the Senators that gambling addiction poses a major challenge to our society, particularly when it involves children and young people. This is why the establishment of a gambling regulator focused on public safety and well-being with the powers to regulate advertising gambling websites and apps was a commitment in the programme for Government. The Minister for Justice published the general scheme of the gambling regulation Bill last October. That Bill will establish a new regulatory authority, namely, the gambling authority of Ireland. Specifically, head 109 of the general scheme sets out that the authority shall make codes concerning the advertising of gambling. These codes may include restrictions or prohibitions concerning such matters as the times of day that gambling may be advertised on broadcasters, video on demand and audiostreaming services; an option for a customer of a video on-demand service to opt out of receiving advertising and a requirement that a video-sharing platform service should not display gambling by default but should require an opt-in mechanism. The general scheme also requires the gambling regulator to engage with an coimisiún on such codes to facilitate joined-up thinking on the regulation of advertising.

Given that the Gambling Authority of Ireland will issue codes in respect of advertising, I do not propose to accept these amendments. It would not be an effective use of resources or coherent policy to mandate two regulatory authorities to regulate the same matter. Senators have spoken about this. Given its remit, role and specialisation, the Gambling Authority of Ireland will be the best place to regulate the advertising of gambling.

As regards speculative financial activities, the Central Bank of Ireland regulates the advertising of financial activities by financial services firms under its remit. The rules are set out in the consumer protection code published by the Central Bank. To make a general point, I recognise that crypto-assets pose a significant challenge for consumer protection. In that regard, I note the EU markets in crypto-assets regulation is currently under negotiation in Brussels. It will set out a licensing regime for crypto-assets. However, fundamentally, it will be for authorities other than an coimisiún with specific expertise to set out the primary rules for regulating the advertising of crypto-assets. While I do not accept these amendments, I recognise their intent and the points the Senators have made today.

Gambling is a scourge for many families. On the broader issue raised by Senators Cassells and Byrne in amendment No. 28, which relates to the role of an coimisiún regarding gambling addiction, I have committed to speaking to my colleague the Minister for Justice on the matter in advance of returning to that amendment on Report Stage.

While I am looking forward to the Minister's engagement with others on the intersections, I will still press the amendment.

Amendment put and declared lost.

Amendments Nos. 103, 120, 123 to 125, inclusive, and 128 are related and may be discussed together. Is that agreed? Agreed.

I move 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.".

These amendments relate to a really important set of measures on the advertising of breast milk substitutes. I am aware that others have also highlighted this. Amendment No. 103 would insert a new subsection requiring that a broadcaster should not broadcast and a relevant media service provider should not make available an advertisement that seeks to promote breast milk substitutes. Amendment No. 120 — I am not sure whether it is in my name — would make it clear that the media service codes shall prohibit certain kinds of commercial communications.

I have an amendment in the section relating to the media codes that refers to "the general public health interests of children, in particular those foods or beverages which contain fat, trans-fatty acids, salts or sugars". It relates to the concern that breast milk substitutes should be mentioned in regard to the general public health interests of children.

Amendment No. 124, in the name of my colleague, Senator Black, raises this issue also. Amendment No. 125 is important because it lists breast milk substitutes as pertaining to one of the areas of commercial communication where media service codes might be made. Amendment No. 128 provides that regulations would restrict, where media service codes might be made, the inclusion in programmes of commercial communications relating to foods or beverages considered to be the subject of public concern. I am not sure if amendment No. 128 is my own, so I will let others speak to that.

This is a really good example of one of those core issues I have indicated. In our initial discussion, the Minister indicated she understood and wanted to engage on the matters of harmful content and harmful conduct. We have a public health good with breastfeeding. It is immensely important to our public health goals for children. In Ireland, we are absolute outliers. It needs to be very clear that every woman will be making her choice between breastfeeding and the use of formula; however, as I believe was stated, it is not that they are equal. There is one route that is better for public health. It is appropriate that there be public health communication in this area.

In Ireland, 6% of persons breastfeed for six months by comparison with the global average, which is 40%. Globally, the ratio of those who breastfeed to those who do not and may use formula is almost 50:50, but Ireland is only at 6%. In Ireland, we have a long tradition of not promoting or supporting breastfeeding in the way it should be. We are now seeing measures, which are welcome, on lactation, with an increase in the number of lactation consultants. Again, we are talking about just over €1 million for new lactation consultants. That is a very small amount to be invested in the promotion of supports by comparison with the funds associated with the very active agents in this area, namely those with a commercial purpose. Therefore, the fact of the moment is that in those periods when women are making decisions in this regard, the public health message must compete with one from the industry and those with commercial interests.

There are practices related to the advertising and promotion of breast milk substitutes that are really concerning. It is not simply a matter of products on a shelf. We need to be clear that this is separate from the regulation of breast milk substitutes as products but that we are seeing marketing practices such as the creation of baby clubs where persons are going to access information about some other aspect of having a new baby and are effectively entering a space where there is commercial intent and where there are provisions in respect of online chats with expert mums. There is targeting by way of competitions whereby pregnant people are encouraged to put in their names, details and due date so they can get week-by-week email updates. This could become the price of entering a competition for a new cot. These are very targeted activities that are designed to make use of commercial actors with commercial purposes and advertising in the first six months when new mothers are making decisions on whether to breastfeed.

The practices I have outlined directly breach the World Health Organization code. This code sets out specific measures — for example, that one should not seek direct contact with pregnant women or new mothers. It states directly that there should be no information function attached to a marketing function. The breaches are genuine breaches of the World Health Organization's voluntary code. They serve as a really good example of why self-regulation has not been working. That is why the World Health Organization has stated specifically, in a new report issued in the past few weeks, that it believes online advertising and online promotion of breast milk substitutes and formula for commercial reasons are undermining a major public health goal.

It is important in Ireland because we have such low levels. It is also important that Ireland sets a high standard internationally. The WHO and others have estimated up to 800,000 infant deaths would have been prevented if its code on the marketing of breast milk substitutes had been fully applied. Ireland exports one third of the formula manufactured here to the Chinese market. The breastfeeding rate in China has halved over the past decade. Let us be clear that advertising and commercial communication is designed to increase the market. Its purpose is to increase the usage of a product. This is the nature of advertising and its commercial communication.

This is not to diminish women's ability to make the choices they need to make. When the WHO code first came out we had a situation where company marketing representatives almost appeared in hospitals. They are not there now but they are appearing where people are trying to access information. There is a very important message that we need more public information. We need far more public support. We need non-commercial alternatives. For example, the only non-commercial breast milk bank here is in the north of the island. This is an example that is a solution for women who are not able to breastfeed themselves. It does not make anybody any money. These types of solutions must compete. It is one thing to say we need to increase them, and we do, but we should not have them in competition with those who have a commercial purpose in this regard. This is because there is a public health cost if we do not address it. The Minister will be aware of how strongly many women feel about this issue and how much people have had to fight to try to give greater visibility to breastfeeding and get greater support for it. I hope she will consider these amendments. I recognise Senator Sherlock and others have also tabled amendments on this matter.

I thank Senator Cassells for facilitating me. I thought there may have been someone else who might want to speak about this. Some Senators have been incredibly vocal when I have pointed out that I agreed with the recommendations of the report of the Oireachtas joint committee that we needed to ban online advertising of formula milk in this country. My feelings on this are very much on the record as are those of other Senators who disagree with me on this point. I am sure they will make their feelings known. Let us make no mistake. This is big business. That is what this is about. Online advertising and any advertising of formula milk is not about alerting people and mothers to the possibility they could formula feed. We all know this. It is about looking at a vulnerable time in someone's life and asking how to make money out of it. This is what I believe the advertising of this milk is about.

There have been workarounds when it comes to the WHO code. Follow-on milk is one of these. Follow-on milk is not necessary but because we have a code that includes infant milk follow-on milk is used as a way to bypass it and allow the type of advertising that will promote formula milk in general. Let us think about this. Nobody advertises for something unless they think they will get a return on the investment. This is why people put money behind advertising. Those who breastfeed cannot put any money into advertising because it is something we do naturally and we make no money from. This is why we are competing against something in this country. Public health is competing against something that is making money. It needs to be heavily regulated. I am supportive of the amendments and I thank the Minister and the officials for their engagement on this issue. When we have a Bill such as this, which includes sugar and salt, it makes sense that we also include things that have been shown by the WHO not to improve public health in general.

There are instances where people choose to use formula milk feed and there are instances where people have to. These instances would still be facilitated. We are not speaking about stopping the sale of these goods. We are speaking about people at 3 a.m. desperately looking for a solution to mastitis or a child that will not sleep. They go online to search for ways to get the child to sleep. They should not be prompted with advertisements for the purchase of a product that will make somebody else money. The formula milk industry is worth €60 billion a year. Not only does it make money but it leads to worse health outcomes. We all know this and I can point to 1 million pieces of research but I will not do so. In Ireland, it is worth €1 billion year. This is very much behind why we allow the promotion of these products to go ahead.

There are clear instances where the code has been breached in this country. I have gone into supermarkets and had to point out the code is being breached because they are not allowed to reduce the price of infant milk formula. It is still being decreased. This is why I am supportive of these amendments or something that would show it is an important issue. Some of the wording in the amendments needs to be changed and this is probably acknowledged. We look at sugar and salt and their promotion to children. When we look at formula milk it is the promotion to their parents that has worse health outcomes for them.

This is about choice. We know this type of advertising has not provided the same type of choice for those who want support with breast milk, those who want support with feeding their infants or to have proper health advice from doctors on which is best substitute for them. This is where I see it and not in advertising that makes a profit for people.

I will speak to amendment No. 128. This is not entirely clear to me. The Bill states that provision may be made for the purpose that may prohibit the inclusion in programmes of commercial communications related to trans-fats, fats, salts and sugars. If I am reading the amendment correctly, it proposes changing this so it shall be restricted. I am not sure about this. I might get guidance on it. I am quite happy with the idea that the Bill may prohibit it. The language in the Bill is arguably stronger and I am quite supportive of it. My particular concern is with regard to product placement, particularly sugar and trans-fat foods targeted at children. It comes back to some of the earlier points. We need to consider that while we are looking at licensed broadcasters and extensive restrictions on them, they are competing against online platforms. We must ensure it is a level playing field. There have been a lot of codes in place and I would like to see restrictions on sugary foods.

There should not be targeted advertising based on children but the proposal in the amendment to delete “may” and substitute “shall” does not make sense.

I thank the Minister for her wonderful Bill. I have not tabled over 200 amendments like Senator Higgins and simply wish to acknowledge the amount of work that the Minister has done on this important legislation. Today, we are a speaking about something that an awful lot of us are passionate about whether that is in what we do in life or in society.

I will now try to flesh out this amendment and must state that we all approach this subject from different angles. I am first a dairy farmer, second a politician, third a father of four children who are in primary school and so I have a very busy house, and fourth I am married to a midwife. Therefore, I have a unique insight, rightly or wrongly, in terms of my views on the proposals that have been brought forward and I shall start at the top. As a farmer I know that farmers do an awful lot of work to make sure that the products that we make are safe and accountable to environmental concerns but are to the highest possible standards. We have managed to do that over the last decades. What we produce in Ireland is a credit to the education of the farming community, the advisory service and the people who have worked with us over the last few years.

The average size of a dairy farm in Ireland is 79 cows. In west Cork the average size of a dairy farm is 79 cows and we have small creameries such as Barryroe, Lisavaird and Bandon. They all produce the milk pool that produces the butter, milk and baby food formula, which becomes a part of the basket of products that we sell nationally and internationally. I am proud to say that we do this to the best possible standards in the world. I do not know that there is any country that can do what we do and at the standards that we achieve. Today, we must acknowledge, and I am open to correction, that 94% of people choose to bottle feed. If one chooses to do so then one must realise that bottle feeding is a substitute. We are all very much aware that breast is best but the baby formula products that we produce are of the highest possible standard. This House needs to acknowledge that fact during this debate.

I am a father and my wife breastfed our first two children, which worked very well but when our twins came along breastfeeding them became a different issue. We, as a family, tried to continue what we did with our first two children but we found that there were no supports in our community. The nearest lactation consultant to us was 79 miles away in Schull and meant a round trip of 150 miles so that did not work. To be perfectly honest, we found it a chore to locate breast pumps and everything associated with breastfeeding. At the time we were a household that had four children under six years of age and trying to breastfeed our twin babies is something that my wife and I regret in many ways because it did not work.

Sometimes breastfeeding does not work and when that happens then the appropriate services need to be available but I do not think they exist. I mean that I do not think that there are lactation consultants available in communities. Covid has not helped as it has prevented support groups and everyone else in the sector from meeting. Support is needed to make sure that breastfeeding is done right, and particularly when multiple births occur. My wife and I did not have the support to make sure we could breastfeed our twins.

This debate must be about lactation and mother and baby groups meeting in communities and not in a hospital setting, which is where they are based at the moment. We need multiple lactation consultants on the road in order to reach mothers and their families. Otherwise the supports for the families who want to breastfeed their children are not going to be available and that is a core issue in our argument.

When one considers what this Bill seeks to achieve in terms of tackling issues like gambling and sugary foods, I fundamentally think that having baby formula attached to this legislation does not make sense. In many ways it does not sit well with me given the amount of work done to make sure that the products that are made available to parents who want to bottle feed have an appropriate level of security around them. I think that baby formula does not fit with this legislation.

Some Senators mentioned price. The cost of rearing a family is an immense issue and breastfeeding is advantageous in that regard. However, when it comes to the multiple purchase of nappies and everything else that is required there is no discount given to anyone who has a baby under six months because that is how the supermarkets run things. I clearly remember that the cost of buying nappies and everything else for twins was horrendous for the first six months. Therefore, I contend that more supports must be provided to families, and in particular to families with multiple births.

This legislation seeks to regulate what we are trying to do with online safety. We need to be fair to everyone in society. The Irish dairy industry is based in 79 rural locations throughout Ireland. Whether it is places like Ballineen or Mitchelstown, they do an exceptionally good job but it is only a supplement. If we want to change the narrative for breastfeeding then I urge the Government to put the supports in communities and give support to the families who want to breastfeed their children. The majority of families want to breastfeed their children. To say that people fall for online advertising misses the point. I believe that people choose not to breastfeed because there are no supports in their community, which has been the experience of my family.

Senator Pauline O'Reilly is right. For the past six months this issue has been the topic of conversation both inside and outside the Seanad. Not a week has gone by without this issue being discussed at my kitchen table because my wife and I have all of the angles. I mean that there is my wife's view, my view and everyone else's view. If we want to change things then putting something in this Bill about online promotion will change nothing. It might change the prefix but the real change must come by what we do in communities so I suggest that we provide lactation consultants and groups who will meet people in halls. I make that suggestion as in my family's case a lactation consultant was located 79 miles away so to reach that person one would have had to endure a 150 mile round-trip so it was not possible to continuing breastfeeding.

Will this debate adjourn at 7.30 p.m.?

I suggest that Senator Sherlock makes the most of her time.

I shall speak to my amendment No. 123. I welcome section 46N(5) as it refers to making provision to prohibit advertising "in respect of the general public health interests of children, in particular those foods or beverages which contain fat, trans-fatty acids, salts or sugars". Our amendment No. 123 seeks to ensure that we talk about all children and not just those who have digital access.

I am conscious that I may not have enough time to respond to everything that was said by Senator Lombard. I wish to state that I defend any family's right to decide what way they want to feed their newborn baby. However, I believe restrictions need to be put in place to curtail the aggressive marketing tactics employed that are purely motivated by profit.

In response to Senator Lombard, nobody has said anything about the quality of infant formula or said it is harmful. We are saying that the marketing tactics employed by infant product companies are designed to undermine the choices made by families. We know from the latest report by UNICEF and the WHO, which have done extensive research on this matter, that infant formula companies have designed marketing tactics that play on the anxieties of families.

Any of us in this House who has had a baby will know the anxieties in the early days, particularly if trying to breastfeed. The key issue here is whether we allow that to continue, or whether we make a decision as a State to try to curtail this.

I will go back to that point about standing over every family’s right to be able to choose. However, this amendment is about ensuring that there is a level playing field. Public health messaging does not stand a chance if there is relentless marketing by infant formula companies.

Progress reported; Committee to sit again.
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