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Seanad Éireann debate -
Tuesday, 31 May 2022

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

SECTION 44

Amendment No. 187 is out of order due to a potential charge on the Revenue.

Amendment No. 187 not moved.

I move amendment No. 187a:

In page 85, between lines 6 and 7, to insert the following:

“(fa) levels of risk of exposure to disinformation when using designated online services, and levels of risk of harm from such exposure,”.

Amendment, by leave, withdrawn.

Amendments Nos. 188 and 189 are related and may be discussed together.

I move amendment No. 188:

In page 85, line 24, after “time” where it secondly occurs to insert “and not less than once every three years”.

I will speak to amendments Nos. 188 and 189. Amendment No. 188 proposes to amend section 139N(5), which currently provides that the commission will from time to time review the online safety code, by inserting the provision that the review would happen at least every three years. Earlier in the Bill, it is provided that the commission should respond to societal and technological change. The Minister will be aware that I had identified emerging environmental considerations there. Societal and technological change is moving apace. It would be consistent with the stated intention in the Bill that the commission would be responsive to societal and technological change in the rapidly-evolving online safety space if the online safety codes were reviewed at least every three years.

Amendment No. 189 simply provides that the commission would make a report on the review of the online safety codes available on a website. This is to ensure the process around the review of the codes is as open and transparent as possible and people will be able to see if the issues that they are encountering are being reflected in a review by the commission.

I thank the Senator for her amendments. I cannot accept amendment No. 188 because, as a matter of principle, I cannot accept amendments that would unduly limit the discretion of the comisiún in the creation and maintenance of regulatory codes. However, the proposal in amendment No. 189 is a good one and while I reject the amendment today, I am considering the matter for Report Stage.

I accept the Minister, as a matter of principle, does not want to set any dates. My concern and hope is that we will have regular reviews. I may reserve the right to bring amendments that ensure the reverse will be the case, whereby if reviews are not happening, there will be a mechanism to ensure we do not have out-of-date codes in play for longer. I will withdraw the amendment and try to approach the matter from the other side to ensure we do not have undue delay with regard to a review.

Amendment, by leave, withdrawn.

I move amendment No. 189:

In page 85, line 25, after “makes” to insert “and shall make a report on the review available on its website”.

Amendment, by leave, withdrawn.

I move amendment No. 190:

In page 85, between lines 35 and 36, to insert the following:

“(1A) In the case of a large online service provider, meaning those with more than 500,000 users in the State, the Commission shall require information on the provider’s compliance with all online safety codes, and this information shall be deposited with the Commission and the Minister and laid before both Houses of the Oireachtas on an annual basis.”.

The amendment provides that the commission would, in the case of a large online service provider with more than 500,000 users in the State, require information on the provider's compliance with all online safety codes. I understand there may be objection to what I propose be done with this information. I have said it "shall be deposited with the Commission and the Minister and laid before both Houses of the Oireachtas". It is around the principle of ensuring that we have data in the case of those large online service providers. I am open to discussion on the question of where that information is lodged.

It is important to note that not all online safety codes will apply to every designated online service. The designation of online services for regulation and the application of different online safety codes to them is based on assessments of risk. As such, requiring the provision of information from providers of designated online services of their compliance with all online safety codes does not align with the model of regulation provided for in the Bill.

An coimisiún is empowered to require the provision of large volumes of technical, detailed and commercially-sensitive information from providers of designated online services in order to assess their compliance with online safety codes. I do not see that it would be desirable or practical to lay such information before the Houses of the Oireachtas. Accordingly, I am rejecting the amendment.

I accept the Minister's point about "all online safety codes". It should, of course, only be the online safety codes relevant the provider in question. In that context, I will bring a revised amendment on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 191:

In page 87, between lines 32 and 33, to insert the following:

“139QA. (1) Where an offence under any of the relevant statutory provisions has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to by, or is attributable to connivance or neglect on the part of, a person, being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that the doing of the acts by the undertaking which constituted the commission by it of the offence concerned under any of the relevant statutory provisions was authorised, consented to or attributable to connivance or neglect on the part of that person.

(3) In the event of a dispute as to the identity of the person responsible for the alleged offence, it shall be presumed, until the contrary is proved, that the person designated as responsible for online safety on the register as provided for in section 139J(2)(c), shall be the responsible person.

(4) Summary proceedings may be brought and prosecuted by the Commission in the case of an alleged offence.”.

I thank the Minister and her officials for being here and for engaging at various stages, both in the House and privately. This is a significant and substantial amendment to the legislation. We are happy to work with the Minister on the wording. The amendment seeks to ensure there is a change in culture within social media companies. While we are very much in favour of looking at a redress mechanism or dealing with the problems of online harm, redress arises after the online harm has taken place. This amendment seeks to ensure that individuals in the social media companies take responsibility for online harms.

We know that very heavy fines can be levied by an coimisiún on those who are guilty of causing online harm or breaching codes. The difficulty, as we have seen with data privacy breaches and so on, is that those companies will tend to write off those large fines as business costs. Indeed, we have even seen in the past few days that Meta is making allowances within its budgets for likely fines as a result of data breaches. We want to ensure there is a change in culture. We believe the only way we will see a change in culture is by making individual directors of the companies responsible.

This provision would not be applied in a very light way. It would apply where the company is made aware of problems with its algorithms or allows its algorithms to perpetuate online harms. The principle we want to apply is the same one that applies in health and safety, environmental, anti-bribery and white-collar crime legislation and even legislation the House discussed last week. It is about making individual directors responsible. The Minister will know that when it comes to health and safety or environmental legislation, we can slap big fines on companies, but many companies pay attention when they know that one or more of their directors may be held personally responsible for their company's actions.

We have not tabled the amendment because we want to see social media bosses walking away in shackles. That is not the case at all. We do not wish to see anybody facing that. What we do want to see, however, is a change in culture. When it comes to measuring risk, somebody within a company should take responsibility and know his or her job is on the line as a result of this and that it is not just about a fine for the company. Therefore, we believe these measures are proportionate.

I totally understand that the legislation provides that if a person fails to co-operate with a direction of the commission, he or she could face criminal offences in those circumstances. That is welcome. What the amendment deals with is where whistleblowers or others within a company make clear to a director of the company that, as a result of the design of the algorithm or practice that is about to be rolled out on the social media platform, there is potential for online harms as specified within the legislation. The wording of the amendment is based on provisions in the Health and Safety Act. It is the exact same provision that would apply there. The person who is responsible for health and safety has to measure the risk. Therefore, if we are going to take online safety seriously, persons have to be held responsible.

The fear we have is that if it is simply a question of large fines, the companies in question will write that off. Unfortunately, there are certain social media companies that, frankly, in terms of the culture within the company, take online safety about as seriously as the US National Rifle Association takes gun safety. They sort of say they are committed to it, but the evidence is not there on the ground. We believe that by making sure a person takes responsibility for it, we will see a change in culture within the company. We are quite happy to consider amendments to the wording and so on. As I stated, the amendment is based on wording in the Health and Safety Act. We believe that, as a principle of this legislation, if we are going to take this seriously, somebody has to be held responsible.

Like Senator Byrne, I thank the Minister and her officials for the engagement pertaining to the amendment and, indeed, all the work that has been to finesse this and get it to a point where we can see real progress. As Senator Byrne outlined, the essence of the amendment relates to trying to find a balance as to what is going to be taken as strength. I have consistently made the point that when we had engagement at committee and off site, there was not that level of respect from companies in general in this sphere towards the State and its laws. There was a sop. There was not due regard. Senator Byrne is correct.

I refer to the findings this week of Helen Dixon, the Data Protection Commissioner, in respect of breaches by Meta in the context of Instagram and the money, totalling some three quarters of a billion euro, that was being put aside to deal with these potential breaches. That is the kind of money these companies can put aside to deal with breaches. Indeed, they can add to that. We are dealing with companies such as the one that has revenue in excess of €40 billion in this country, a rise of €6 billion on the previous trading year, and can put aside three quarters of a billion euro to deal with breaches.

When Frances Haugen, a whistleblower, appeared before the Oireachtas committee in February, she outlined to us that it was made clear, and actually reported to company directors, that the algorithms devised in the context of several elections across Europe were driving aggression and hate. The algorithms were driving engagement and, hence, revenue, so nothing was done. That was the point. The issue was outlined and the company was made aware of it but no action was taken. Why was no action taken? Because the net result was an increase in engagement on the platform and, hence, an increase in awareness for the advertising platforms and an increase in revenue. Our own data regulator is pointing out the transgressions, with breaches in terms of the processing of the data of children in the context of the operation by children of business accounts and so forth. We are well aware of the breaches that exist at present. I praise the Data Protection Commissioner and those others who are currently charged with dealing with this issue. I am sure the Minister will do likewise. The companies do not care, however. As I stated, it is a business cost. If a company has revenue of €40.6 billion and can put aside three quarters of a billion euro to deal with the fines this State may lay down, where is the sense of fear?

When this amendment was tabled several weeks ago, however, by God, there was fear. I refer to the reaction in terms of letters that were written and the furore that was created. There was an attempt to portray the State as not being a friendly and welcoming place for these companies. The threat we have seen companies make previously was rolled out. It is nearly a case that if we do not worship at the companies' altar, they will be gone. They will find somewhere else.

The protection of the citizens of this State and their rights is what is at play here. It goes back to the earlier amendments we tabled in the context of the right to privacy not being superseded by anything else. It is a very important point of debate in the context of how we value the protection of people in this country and what level of protection we are going to introduce. As I stated, the fines for breaches may seem eye-watering to us, but if a company can put aside three quarters of a billion euro to deal with such fines, that is a different ball game altogether.

When we engaged with the eSafety Commissioner in Australia, she outlined clearly to us that by laying down the law from the outset in a strong and meaningful way, the level of engagement from these companies was fulsome. They knew she meant business and that it was in their interests to play ball from the outset rather than being found in breach.

The reaction that has emanated since the amendment was tabled is quite interesting. We have very strong legislation as things stand. The amendment would strengthen it further. I hope we can work collectively and positively with the Minister in respect of this amendment.

I support the amendment tabled by Senators Cassells and Byrne. Senator Cassells hit the nail on the head. The Bill is about the protection of Irish citizens and, in particular, Irish children. That has to be our number one priority.

I will be brief again. These are excellent amendments. Senator Cassells is right. The reaction to the amendments is a sign that they are powerful amendments that would make a difference to the efficacy of the Bill. I remember being in America just before the first dotcom crash, at an event in Denver where there were people in cowboy hats telling people to ride the light on the first go of the dotcom boom. There has been a culture of rewarding risk taking. There is a culture where risk is rewarded, whereas responsibility is not. Of course, the individuals who are taking risks are doing so with the safety of other people in the context of potentially dangerous impacts and online harms that might be caused. There is quite a lot of reward, however. If the individual manages to find a new loophole or try something out and get away with it, he or she may be rewarded within that company or brought into another company and rewarded there because he or she has been shown to be willing to take risky decisions and gamble and push the limits of what might be acceptable.

That is why it is really important that companies do not just absorb this within their business, as if the public were almost a testing ground for how much they can get away with. It is as if we are letting the Irish public be part of a research and development process to see how much harm they can push or how much they can try. It is important that it is not absorbed within business costs in terms of fines. It is very important that the individuals making those decisions are held responsible, as part of moving towards a culture of responsibility in online service providers.

The previous excellent amendment from those Senators around having a named person responsible for online safety is almost the flip side of it. If we have someone who is responsible for online safety and then also some of these amendments, we have some level of culpability for those who make irresponsible decisions. If that person moves to another company, that record is there that he or she has been identified. We might be going after a company but the individual who made those decisions might have been rewarded with a prime position in another company. It is really important that we identify those who have made irresponsible decisions and have outsourced risk to the public. I support the amendments.

I thank the Senators for their amendment. We agree that it is important that the Bill contains robust and proportionate powers of investigation and enforcement sufficient to ensure compliance with the online safety codes issued by an coimisiún. As the Senators will be aware, the Bill as initiated already provides for significant administrative financial sanctions in respect of a contravention under the Bill and for the liability of a director or manager of a designated online service for a specified criminal offence in situations where a contravention continues following the decision of an coimisiún. Section 139Y of the Broadcasting Act 2009, as amended by section 46 of the Bill, defines failure to comply with an online safety code as a contravention under the Act.

It is important to note that a contravention is not in itself a criminal offence under the Act. The Bill sets out a clear process for investigation of a contravention which begins with the appointment of an authorised officer to carry out an investigation and make a report to an coimisiún. The Bill provides significant powers to authorised officers, including powers of search and seizure. Following their investigation of a contravention, an authorised officer must prepare a report to present to an coimisiún for its decision. On receipt of the report, an coimisiún shall, on the balance of probabilities, decide whether or not a contravention has been committed by a provider of a designated online service and whether to impose administrative financial sanction. It may impose administrative financial sanctions of up to €20 million, or 10% of the turnover. Given the scale of some of the designated online services which will be regulated by an coimisiún, a sanction of 10% of turnover may run into the hundreds of millions of euro.

If a provider of a designated online service continues to commit a contravention following a decision of an coimisiún, section 139ZT of the Broadcasting Act 2009, as amended by section 46 of the Bill, provides that an coimisiún may issue a notice requiring the provider to put an end to the contravention. If the provider fails to comply with such a notice, a director, manager, secretary or other officer of the provider can be held liable for the criminal offence of failing to comply with a notice by coimisiún na meán to put an end to a contravention. The criminal offence is a category 1 offence under the Bill, which is set out in section 139ZZ of the Act, as amended, as an offence for which a person is liable (a) on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both, or (b) on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding ten years, or both.

The provision is tightly drawn and limited to circumstances in which the facts underlying the offence and indeed secondary liability in respect of it are provable in practical terms. This is very important and the legitimacy of the regulatory framework and the legislation will hinge in many respects on its operability. I want to emphasise that the provision for secondary criminal liability in the Bill was arrived at following extensive consultation with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences.

The amendment brought forward by the Senators is intended to set out a new offence which would apply when a designated online service has failed to comply with an online safety code in the first instance and for associated criminal liability. I absolutely understand the point the Senators are making regarding the dissuasive effects of applying criminal sanctions in the first instance of a failure to comply with an online safety code, rather than following a failure to comply with a notice issued by an coimisiún. However, I am advised that the dissuasion sought could only occur if the offence was provable in practical terms to the legal standard of "beyond reasonable doubt". This is achievable in the circumstances in which the Bill provides for secondary criminal liability but I am advised that there are doubts as to whether that would be the case in the circumstances described by the Senators.

In addition, the intention of the Senators here would provide a legislative choice to an coimisiún where it has determined a contravention has occurred to either pursue the imposition of an administrative financial sanction, or prosecute or pursue the prosecution of a provider of a designated online service for an offence tied to that contravention and potentially a secondary prosecution against a senior manager. Where such a legislative choice exists, the question arises as to how an coimisiún would choose between these courses of action, particularly as they have different legal standards of proof attached to them. This creates a decision point which would be subject to judicial review and in respect of which it would be difficult for an coimisiún to defend its choosing either course of action. A mischievous actor could easily make an argument that an coimisiún is only pursuing an administrative financial sanction because it does not have sufficient proof to pursue a criminal case and that an coimisiún is denying the provider due process on that basis. I have no intention of introducing such an opportunity into this Bill. For these reasons, I cannot accept the amendment.

I entirely understand there are legal difficulties and accept that the level of proof required in a criminal case to prove something beyond reasonable doubt is always going to be the case with regard to any criminal charge. I am afraid I have to respectfully dispute the Minister's assertion that this would be a matter of choice. There is not a barrier, as I read the legislation, that would prevent an coimisiún from pursuing its standard case and expecting somebody to be able to co-operate with its direction and codes or, if there is a failure to comply with the codes, from taking action on foot of that or if it discovers evidence that there has been what we would call a criminal breach in terms of adhering to deal with some of the online harms.

I draw a parallel with environmental legislation. If a factory was polluting a river and the EPA investigated and an order was made against the factory, if the factory continued to pollute, the EPA could take action against the factory. If the EPA subsequently discovered that the director of that company was told that a course of action was going to lead to the pollution of the river and the director decided to go ahead, does the Minister honestly believe the director of the company should get away with that?

This is what we want to happen with the social media companies. If a social media company makes a decision and the commission investigates and discovers the code is being breached, and gives the company an order, the company may comply with the order or it may not. There might be a need for a follow-on order. An coimisiún can take action in those circumstances. However, if it discovers that the director of the social media company took a deliberate decision to allow an algorithm to roll out simply because it could make a lot more money, even though the director knew it was in breach of the codes, that means the individual is not responsible. Criminal prosecutions are always difficult but it is not impossible. It is about trying to ensure that within the company, somebody takes responsibility for what happens. All the evidence is there. There have been numerous whistleblowers. I refer to the excellent book, An Ugly Truth by Sheera Frenkl and Cecelia Kang, two New York Times journalists.

They talk about how Facebook was aware of a series of evidence about Russian interference in the American elections and genocide in Myanmar, yet it failed to take action. This is not a case of discovering something and it being brought to the attention of the social media platform. A director of the company, the person in charge of the design or algorithm, or the person named as being responsible for online safety, allowed the creation or perpetuation of an algorithm or platform that allows for online harm. We all want this Bill and the commission to succeed, but there are the same challenges that we have seen with data protection, which is not taken sufficiently seriously by certain companies, which worries me. In two or three years, when the commission is up and running, we want directors in companies to tell engineers, when designing an algorithm that the company is about to roll out, to ensure that it does not allow the creation of online harms. If the only fear is that the company might be fined, that will not be a priority. If people can roll out an algorithm that makes €1 billon and the risk is 10% of that, they will not be worried because it is a profit of €900 million, but if somebody is held personally responsible, then action can be taken.

I do not doubt that proving a criminal case is difficult, but the same arguments have been rolled out by pharmaceutical companies which were responsible for the opioid crisis in the USA and by tobacco companies, historically. We have to ensure that people will take responsibility and be held to account. We have had good engagement with the Minister's officials. We are happy to discuss this further but we have to ensure that the companies take responsibility. As Senator Cassells said, we have been debating this for over a year. Many of the social media platforms engage in correspondence. As soon as we put forward this suggestion, every single Government Minister got a letter expressing concern about what we were proposing. Pressure was applied to Senators due to the potential impact of this. This would mean that companies would finally take online safety seriously. They are not afraid of huge fines, but there is fear when somebody will be held responsible.

We all want to solve this problem but until somebody in the company takes the responsibility seriously and there is a change in culture, we will not see a change. I support the individual complaints mechanism but I do not believe it will work unless we have company change. We are happy to engage earlier but I ask the Minister for the opportunity to sit down with her officials to discuss this between now and Report Stage.

As the Senator said, this is ground-breaking legislation. It represents the first steps to regulate user-generated online content. In establishing a whole new regulatory framework and regulator to enforce it, Coimisiún na Meán, the Bill lays a foundation that we can build on. There will be changes to the regulatory framework, driven by initiatives taken at EU level, for example, not least through the recently agreed EU digital services Act, which does not take the approach proposed by the Senator. It is important that the regulatory framework that we are establishing as a foundation stone is effective and that any provisions we include are applicable in practice by Coimisiún na Meán. It is important in that context that consideration is given to the investigation and enforcement regime set out in the Bill so that it can be done in practice.

I meant to refer to the comparisons between the provisions for secondary criminal liability in this Bill and other legislation, such as the Safety, Health and Welfare at Work Act 2005, as amended. The offences set out in that Act for secondary criminal liability attach focus to failures by persons to comply with the provisions of that Act, including failures to discharge clearly identified duties or non-compliance with requirements to prepare plans. Such provisions would have more in common with the existing provision in the Bill which attaches criminal liability to the failure to comply with a notice to end a contravention issued by the coimisiún, given that the facts of compliance or non-compliance would be relatively clear, which is an important consideration when the matter must be proven beyond reasonable doubt. As I said earlier, my advice is that the dissuasion the Senator seeks could only occur if the offence was provable, in practical terms, to the legal standard of beyond a reasonable doubt. This is achievable in circumstances in which the Bill provides for secondary criminal liability. I am advised that there are doubts as to whether that would be the case in the circumstances the Senator describes.

It is vital that those who contravene the regulatory provisions can be sanctioned appropriately and effectively, up to and including criminal sanctions. We agree on that. The approach we have taken followed extensive engagement with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences. I have outlined the sanctions of €20 million or up to 10% of the turnover for non-compliance. The coimisiún may issue a notice to end that non-compliance. Failure to comply can lead to an offence for which officers may be found liable. My advice is that this is just not workable and that what we have in the Bill, after extensive engagement with the Office of the Parliamentary Counsel and consideration of the report of the Law Reform Commission on regulatory powers and corporate offences, is what is workable, which is why it is in the Bill. I am sure there will be engagement with officials on other amendments. I have committed to that between now and Report Stage. I am sure this will arise in the engagement.

I am being straight with the Senator that I will not commit, because my advice as it stands is that this is not workable. That does not stop the Senator from engaging further with the officials. I am happy for that to take place, because I know it will happen with other amendments the Senator has tabled. I am not committing to anything. It would not be fair for me to say I will bring something in on Report Stage. Engagement will happen. My advice, as it stands, is that what we have provided for in the Bill is workable and the amendment is not.

The Minister and her officials have engaged on all the other areas. It would be useful if some of the advice could be made available to us. I do not know what is possible. It would be good to discuss that advice with officials and see if there is a way around this. From some of the discussions we have had, amendments along these lines will be possible. Rather than getting into legal debate on the floor, since we have had useful engagement with the Minister's officials, Senator Cassells and I are in agreement that we would meet the officials again to discuss this further and try to ensure that we can achieve the maximum sanction possible.

They will not be in a position to share the advice but they will discuss the principles with the Senator.

I encourage the Minister to engage with Senator Byrne. The Minister mentioned the criminal sanction for refusal to comply with an order and that is where it kicks in. It comes back to the question of patterns, for example, if the same persons are in charge when there are multiple breaches, either in the same company or in different companies. There may be a breach involving an individual who is caught then complies before the criminal sanction comes in, then commits another similar breach. What happens when persons in roles of responsibility commit multiple different breaches either in one company or another? This is all about dissuading that kind of practice. I urge the Minister to engage on how those can be identified. Otherwise, there are many rewards for individuals committing breaches.

We have at the moment a culture whereby the financial rewards that have been outlined are potentially immense and the penalties are only financial penalties, except if someone refuses to comply with an order. Again, there is the potential incentive to try out multiple slightly different breaches and each time someone complies with an order and avoids the criminal sanctions is a danger. What we do not want is that we have the public experimented on, effectively. In that regard, there is potential for strengthening the Bill and this should be looked at.

On the basis of the very positive engagement we have had with the Minister and her officials, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 192 is out of order as it is a potential charge on the Revenue.

Amendment No. 192 not moved.

I move amendment No. 192a:

In page 88, between lines 33 and 34, to insert the following:

“(ga) levels of risk of exposure to disinformation when using designated online services, and levels of risk of harm from such exposure,”.

Amendment, by leave, withdrawn.

I move amendment No. 193:

In page 92, between lines 14 and 15, to insert the following:

“(2A) A record of any consultations conducted under subsection (2) shall be kept and will include the rationale by which the Commission deemed the person to be appropriate to consult with, and such records shall be deposited with the Minister and laid before both Houses of the Oireachtas.”.

This is the same principle we discussed earlier in regard to other amendments. It is the principle that records of consultations should be kept and, again, that there would be a record of why certain persons were consulted with. We have heard of the level of direct engagement and lobbying that happens in some of these matters. That is why it is appropriate that there would be records of consultations. I know the Minister will disagree with the point in respect of the records of consultations being deposited with the Minister and the Houses of the Oireachtas given we have discussed similar amendments previously. However, while I am very flexible on those matters, I strongly feel that the principle that the records of consultations should be kept is important.

As I have said previously, it is not usual practice to lay internal records of processes and activities of public bodies before the Oireachtas, nor for the Oireachtas Library and Research Service to store such materials. As such, I do not see the value in doing so.

Regarding the matter of the records of consultations, I again note that I understand the intention of the amendment is to ensure the transparency of the comisiún in respect of those persons it seeks to consult with. However, as I said previously, as a public body, the comisiún will be subject to appropriate transparency and accountability requirements, including to the Oireachtas joint committee. For that reason, I do not accept the amendment.

It is my intention to table a version of this that will remove the requirement for laying but will, nonetheless, have a requirement for transparency. I will withdraw the amendment and bring a revised amendment forward on Report Stage.

Amendment, by leave, withdrawn.

I move amendment 194:

In page 92, between lines 14 and 15, to insert the following:

“(2A) In developing an e-Commerce compliance strategy, the Commission shall consult with appropriate persons with scientific expertise pertaining to the impact of e-Commerce on energy demand, carbon equivalent emissions and the environment more broadly.”.

There is a remit within the powers, functions and general responsibilities relating to climate change that is mentioned elsewhere, and the Minister will be aware I tabled amendments to further strengthen that. There are very significant environmental implications in respect of online activity and there are a number of choices. There is an increasing realisation that we will need a dovetailing of regulation of online activities and environmental regulations. Often, when we are debating issues such as data centres, for example, people will say that we have to be able to watch programmes and they ask about family photographs and so on, but, of course, the detail is that different kinds of activities carry a different impact. For example, although I forget the number of transatlantic jumbo jet flights involved in the training of algorithms, it is very important that the commission is able to incentivise that there would be best practice around transparency in terms of, say, the provision of lower carbon impact options, awareness of the fact different choices may have different environmental impacts and, in regard to the architecture underlying an online service, the environmental implications of different choices, practices and regulations on the environmental impact of that architecture. This is just to suggest that this is one of the areas where it would be appropriate for the commission to consult with persons who can give expertise in this area. As I understand it, given the very small size of the commission itself, it may not have that expertise internally.

I thank the Senator for tabling the amendment. The purpose of section 139X of the 2009 Act as inserted by the Bill is to require the comisiún to develop a strategy to ensure its compliance with the provisions of the e-commerce directive 2000 regarding the liability framework for intermediary service providers set out in that directive. The purpose of this provision does not relate to the matters raised by the Senator’s amendment and, as such, I do not accept it.

In light of this, I will look elsewhere. I am looking to how I can appropriately insert the core principle. Perhaps the Minister is correct and it would be better dealt with in another section. In that context, I withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed: “That section 44 stand part of the Bill.”

With regard to section 139D and the issue of age-appropriate online content, the Bill refers to content that is unsuitable for children, either generally or below a particular age, having regard to their capabilities, but it does not actually state an age. What is an appropriate age? There was a recommendation from the Oireachtas joint committee to have a minimum age for social media accounts and put the responsibility on social media companies to have a minimum age for children setting up accounts. At present, it is obvious that children aged nine and ten have social media accounts. We have to put the responsibility on the companies. When we spoke to Frances Haugen, we put this comment to her and she was in agreement that we need to set a minimum age. We met just today with the Children's Rights Alliance's, which is also in favour of this. It is an opportunity for us to be a world leader.

I want to put it on record and I may discuss it with the Minister’s officials with regard to perhaps putting something forward on Report Stage. I understand she cannot comment on it at this stage as it is not an amendment, but I want to put it on the record. I think that is the right way to go. We need to set a minimum age and we need to put the responsibility on the social media companies to make sure that our children are protected and they are not online or have accounts at an inappropriate age. The Bill does not set out what that age is.

With regard to the same section on age-inappropriate online content, two examples are mentioned in respect of violence and pornography. I reserve the right to bring in other areas. It is a section that could be very useful in addressing areas where there may be a reluctance to have a kind of activity fully designated. I come at this in a different way in some of the later sections. When we are trying to designate certain kinds of things as harmful - and there are certain things that while there may be debate or a desire to leave discretion to the commission as to whether they may be designated as harmful - we can be very clear they are not age-appropriate. Again, that comes into the question not just of the kind of content but also the kind of targeting. It comes back to that core question I mentioned earlier. We can give an example such as eating disorders, which is an area where there has been some concern around targeting of products. It is basically the idea of the profiling of persons who are younger and the targeting of advertising content towards them, including advertising content that may be based on a particular vulnerability, including a psychological or physical vulnerability, of that younger person. There would be a kind of double layer of the exploitation of vulnerability and the exploitation of vulnerability in respect of a younger person.

Again, some of the issues we have tried to address in general, such as gambling, could perhaps be addressed at least in respect of age in order that we send a very clear signal that people should not be targeting minors with advertisements and materials that may cause them harm.

It would allow us to be more specific if the Minister ends up not being inclined to widen the provisions on harmful content. We could at least address some of these issues in respect of content that is not age appropriate.

Question put and agreed to.
SECTION 45

Amendments Nos. 194a and 194b are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 194a:

In page 93, line 36, after "content" to insert "presented in a manner".

It was brought to our attention by a number of people that this section is not clear. The text of the Bill, which reads, "Online content by which a person applies force to the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to such force", is very unclear. This could mean dance, martial arts or anything. It was only from further examination that it became clear the intention is for this to be about how the way online content is presented has an impact. This addresses situations such as the use of flashing images, which could provoke a risk of seizure or could have a negative physical impact on the viewer at home. As it is worded, it can be read as meaning the online content. It is unclear.

We suggest two ways to amend this. One is for the Bill to state: "online content presented in a manner". It is about the way in which the content is presented applies force through flashing images or other unsuitable measures. Another potential way would be to give an example. This would retain the Bill's language and add: "(including the sending of flashing images to people with photo-sensitive epilepsy with intent to induce a seizure)". I was trying to give an example of it. A number of people who read it were unclear as to what was meant. I appreciate the intent and I am agreeable to the intent of the Minister but I wonder whether the language might be made a little bit clearer. I have suggested two ways and I am open to any other way she suggests.

I acknowledge the importance of ensuring that the offence-specific category of harmful online content appropriately covers all online content that relates to the offence of assault. I understand that the intention of amendments Nos. 194a and 194b is to ensure that the use of "force" does not unintentionally exclude the non-contact application of such, for example, through online content. I am satisfied that this is not the case, as "force", which is defined in section 2 of the Non-Fatal Offences Against the Person Act 1997, includes, for example, the application of light. As I consider the effect of these amendments to be provided for in the Bill, I will not accept it.

I still think it is a little unclear. The Minister addressed the issue of the concern about exclusion but did not address my concern in respect of inadvertent inclusion. The framing seems to be quite wide. We are relying on the word "by" versus "in". Is it sufficient that we say it is "by" the content the force is applied and not "in" the content? Is this sufficiently distinct or clear? The Minister has addressed my concern to an extent. She has made clear what she expects to be included. I am still worried that we are really relying on the word "by" instead of "in". Does this make it clear it is not the content per se but the manner of the presentation of the content? I am happy to leave the issue and come back to it but I am concerned there might be a potentially wide interpretation. Perhaps this is something we could look at. Are there potential inadvertently wide interpretations of this phrase? Is the Minister confident there is not a risk of this?

To be clear, the definition of "force" in the Non-Fatal Offences Against the Person Act 1997 includes, as specified in section 2(2)(a) of that Act, "application of heat, light, electric current, noise or any other form of energy". I do not see a circumstance in which the matter raised by the Senator would not be covered.

I will withdraw the amendment and come back to it. My point is not with regard to it not being covered. My concern is that there might be a danger of it being interpreted as referring to looking at an image of something happening. I want to be clear this provision is not to do with the content. It is not that a video of somebody applying force is wrong. It is limited to the video itself applying force to a viewer. Does the Minister know what I mean? It is not the content internal to the video. The concern raised with me was whether there would be a risk that there would be an interpretation of applying force to somebody's body if there is content that shows force being applied to a person. Is there a danger of this inadvertently getting caught under this umbrella? This is meant to be about the effect of the video itself on the viewer. I am asking whether the Minister is confident there is no risk of this overinterpretation.

I am confident of that.

Amendment, by leave, withdrawn.

I move amendment No. 194b:

In page 93, line 36, after “another” to insert “(including the sending of flashing images to people with photo-sensitive epilepsy with intent to induce a seizure)”.

Amendment, by leave, withdrawn.
Section 45 agreed to.
SECTION 46

Amendment No. 195 has been ruled out of order as it is a potential charge on the Revenue.

Amendment No. 195 not moved.

Amendments Nos. 196 to 198, inclusive, are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 196:

In page 100, line 5, after "may" to insert "reasonably".

Amendments Nos. 196 to 198, inclusive, are about putting in place stronger safeguards in respect of the powers of authorised officers. These are very wide in the Bill and there may need to be better caveats. Amendment No. 196 would insert the word "reasonably" after the word "may" in the preamble to the activities that authorised officers may take in respect of utilising their powers. This would ensure an authorised officer would not utilise powers under the legislation in a manner that might be excessive or unreasonable. It is an additional safeguard.

Amendment No. 197 proposes to insert "reasonably considers necessary" with regard to an authorised officer. It proposes to delete the provision in section 139ZC that an authorised officer may remove from any place and retain any relevant material or relevant equipment for such period as the authorised officer reasonably considers necessary. It replaces it with a provision that the authorised officer can remove and retain relevant material or equipment for a period not exceeding eight weeks without the review of the superior officer. This strikes a better balance between the powers of authorised officers, appropriate accountability and civil liberties. It would mean we avoid a scenario whereby we may have the indefinite seizure of property, potentially leading to the inoperability or non-continuation of the work of an online provider.

That might potentially lead to the inoperability or non-continuation of the work of an online provider, for example.

Amendment No. 198 would delete the provision in section 139ZC that basically indicates an authorised officer may be accompanied by a garda and effectively states such an officer must be accompanied by a member of An Garda Síochána. This relates to the execution of warrants without the presence of gardaí or any other persons to ensure a warrant is being lawfully executed, which creates a danger that warrants may not be executed in accordance with the provision of the warrant. The powers being given here are very significant and it is why I am trying to ensure we do not have any risk or even a perceived risk whereby quite a lot would be left solely to the discretion of an authorised officer without appropriate safeguards and accountability mechanisms.

Effectively, these are all accountability mechanisms and if material is retained for longer than eight weeks, the person in question should be speaking with a superior officer about why that needs to be done. If a warrant is being exercised that will allow an officer to seize and search for materials, a member of An Garda Síochána should be present. I presume that will not happen every day and although it is something that needs to be there as a power, it is really important that it be carried out properly. Those are the key provisions.

On amendment No. 196, I do not see the value in inserting the word "reasonably" into the provision. The circumstances in which an authorised officer may use his or her powers are set down comprehensively in section 139ZC and are, among other things, subject to considerations of reasonableness.

On amendment No. 197, section 139ZC clearly provides that an authorised officer cannot keep material or equipment obtained in the course of an investigation in perpetuity and that, during the course of an investigation, may keep such materials or equipment for a period deemed reasonably necessary. This discretion is proper and sufficiently drawn to mitigate against unnecessary retention of equipment and materials. I do not believe that requiring an authorised officer's supervisor to statutorily review this matter every eight weeks is proportionate. It would be an unnecessary administrative burden, especially during lengthy investigations.

Amendment No. 198 is not substantially different to the present provision in the Bill enabling an authorised officer to be accompanied by a member of An Garda Síochána and anyone the officer considers appropriate. Accordingly, I am not accepting these amendments.

I accept the Minister's point on "reasonableness" on amendment No. 196 but I disagree on the Minister's points relating to amendments Nos. 197 and 198. There is a very large discretionary power being given to the authorised officer for as long as he or she reasonably believes necessary. There must be some form of time limit. I am not necessarily suggesting this should be every eight weeks but I am saying if it is longer than eight weeks, the process would be subject to review. I am open to the period in question but we do not want a case where, effectively, authorised officers may target an online provider and seize materials over a long period. It may be such a period that it would effectively affect the potential continuity of a service provider.

Again, I say this not in the context of expecting terrible and draconian actions from authorised officers within the State but in looking to best practice elsewhere. There are cases whereby materials and equipment have been seized in other countries in a way that could have a detrimental effect on civil liberties and civil society participation in some cases. That is why I believe it is best practice to have a check on the issuing of warrants. If a warrant is being used, An Garda Síochána should be present. We disagree on amendments Nos. 197 and 198, which is fine.

Amendment, by leave, withdrawn.

I move amendment No. 197:

In page 101, lines 13 and 14, to delete ", for such period as the authorised officer reasonably considers necessary" and substitute the following:

"as the authorised officer reasonably considers necessary or proportionate, for a period which is reasonable and proportionate. Such a period shall not exceed 8 weeks without a review by the superior officer of the authorised officer as to the continued necessity and proportionality of continued retention".

Amendment put and declared lost.

I move amendment No. 198:

In page 101, lines 28 to 30, to delete all words from and including "be" in line 28 down to and including "appropriate" in line 30 and substitute the following:

"be accompanied by a member of the Garda Síochána and such and so many other persons, as he or she considers appropriate".

Amendment put and declared lost.

I move amendment No. 199:

In page 102, between lines 11 and 12, to insert the following:

"(8A) Where material or equipment obtained in the course of the investigation in the exercise of powers under section 139ZC, is subsequently not found to be relevant to the investigation, it shall be returned to the provider at the earliest possible opportunity.".

This is an important provision and I hope the Minister will agree to it. Under these sections, we know materials or equipment can be seized in order to review whether they are relevant. Where material or equipment obtained in the course of an investigation in the exercise of powers is subsequently found not to be relevant to the investigation, it should be returned to the provider at the earliest possible opportunity. This is to ensure that where there is a case where large amounts of equipment are being seized, including hard drives and computers, and it is found not to be relevant to an investigation, it would be returned at the earliest point. These are the tools of the service provider and we should not have a case where a very wide sweep of material is seized and remains impounded when only a very small amount is relevant. The Minister should agree that where something is found not to be relevant to an investigation, it should be returned.

Section 139ZC clearly provides than an authorised officer cannot keep material or equipment obtained in the course of an investigation in perpetuity and that during the course of an investigation the officer may keep such materials or equipment for such a period as deemed reasonably necessary. This discretion is proper and sufficiently drawn to mitigate against unnecessary retention of equipment and materials. Furthermore, it is clear that authorised officers do not have the power to keep such equipment or material upon the conclusion of an investigation. I am not accepting the amendment.

For example, an officer may seize 20 laptops and only one might be relevant. There may be some equipment that is relevant to an investigation but other equipment that is not relevant. That is the context. My amendment does not relate to a subsequent investigation but is very much designed to be relevant during an investigation. I was adding something somewhat different with this amendment and it is not covered by the provision as is.

Amendment put and declared lost.

Amendments Nos. 200 and 201 are related. Amendment No. 201 is a physical alternative to amendment No. 200. The amendments will be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 200:

In page 102, to delete lines 12 to 15.

This seeks the deletion of section 139ZC(9), which provides that, "Where an authorised officer has exercised his or her powers under this section in good faith, the Commission shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the exercise of those powers."

Providing such a blanket indemnity to authorised officers based on a simple good faith criterion is a very weak legal basis and is a barrier to accountability for those who may face unjustified actions from authorised officers operating under the Act. This could preclude access to justice for persons who may be adversely affected by the potential actions of an authorised officer.

I remind the Minister that the legislation covers interpersonal communications and cloud storage. There is a very wide application of the Act and wide powers given under it.

This is the balance we have to constantly seek. In many cases, we are seeking to have regulation strengthened, but we must ensure there is a balance. That is why the rights-based issue in the context of the general data protection regulation, GDPR, is important. It is so that we avoid leaving things to free market regulation and also avoid having inappropriate levels of power or pressure asserted by a state. I refer to the phrasing of the section, such as any "claims howsoever arising in respect of the exercise of those powers". I refer to undue force being implied, damage being done to equipment or materials, or, for example, persons choosing to take and seize a large amount of equipment. If a person abuses those powers, that is significant.

The good faith mechanism is a difficult one to prove. It is a high bar. That is why amendment No. 201, which is an alternative to amendment No. 200, makes provision should the Minister wish to keep the indemnity clause in this context. Again, I think the clause is too widely framed. It refers to any claims, howsoever arising. I say that in the context of the UK and the kind of indemnity provisions it has been giving to those who have acted completely improperly in respect of Northern Ireland. I refer to the spy cops legislation in the UK. There have been several examples of significant impunity for those who may be authorised officers in different contexts than in other states in the context of what they might do. We need to avoid anything that creates a culture of potentially undue care or a perception of impunity or immunity for those who are acting on behalf of the State.

Amendment No. 201 provides that, in the case that there is still a desire to insert the indemnity, the indemnity would only be provided to an authorised officer in respect of "a first or second action or claim arising in respect of that officers exercise of these powers" but that authorised officers who are subject to a third or further action or claim would not be indemnified to the same degree. This may apply to situations where an authorised officer becomes a hard enforcer, there is a pattern of multiple complaints against him or her or there are authorised officers against whom claims are made because of how they have carried out their duties or because there is a perception they are using, for example, unduly coercive methods or unduly exploiting the very substantial powers that are being given to them under the Bill. The concern basically relates to the number of claims that will be taken against an authorised officer before the State stops indemnifying him or her against actions. Again, this relates to trying to ensure we do not inadvertently create a provision within the Bill that contributes to a culture of irresponsibility for authorised officers rather than one of responsibility.

First, I note that the indemnification of authorised officers is a standard and necessary legislative provision. In this regard, the proposed deletion of the relevant provision by amendment No. 200 is not something I can accept. What the provision does is to squarely place the legal responsibility for the actions of an authorised officer on coimisiún na meán, except where the officer acts in bad faith. It is right and proper that complaints in respect of the actions of a person engaged by an coimisiún to carry out an investigation should first and foremost be directed at an coimisiún. Otherwise, a bad actor could stymie investigations simply by threatening legal action against the investigator as an individual.

As regards amendment No. 201, it is difficult to understand why the exercise of such an important legal provision should be subject solely to the quantity of claims against an authorised officer. One can easily imagine a mischievous actor making several separate claims to exceed the threshold in order to be able to bring a claim directly against the authorised officer. Accordingly, I am rejecting the amendments.

The Minister and I are each imagining different mischievous actors. There are ranges of mischievous actors. My concern is that I do not see provisions in the Bill in respect of the coimisiún and how there will be an assertion in respect of good faith, what the mechanisms will be in that regard and what are the consequences for authorised officers who are the subject of multiple complaints. If the Minister is insistent on preserving the indemnity clause, I reserve the right to bring forward other amendments that seek to tackle directly the issue of the exploitation of power by an authorised officer not being checked, notwithstanding the indemnity.

I do accept the point that an coimisiún should be ultimately responsible but I believe there also need to be mechanisms that ensure there will be no exploitation of power by an authorised officer. I am worried that the indemnity may create such a circumstance. I do not see a countervailing mechanism whereby there will be an investigation of good faith automatically. If, for example, there is a third complaint against an authorised officer, will there be an investigation on that good faith? Will good faith still apply if multiple people are complaining about how an authorised officer is acting? Will there be consequences in respect of where good faith is not identified?

I accept that the Minister does not want to move with those indemnity clauses and I get that they are standard but I am very conscious of the substantial powers that are being given to authorised officers under the Bill and that is why I want some form of safeguard. I accept that the Minister is not minded to accept these safeguards but I will reserve the right to engage and seek other safeguards on Report Stage, perhaps focusing on the question of good faith and its assertion or investigation, as well as the question of consequences for authorised officers who are found by an coimisiún to have behaved improperly.

Is the Senator pressing the amendment?

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

Amendment, by leave, withdrawn.

I move amendment No. 201:

In page 102, lines 14 and 15, to delete “all actions or claims howsoever arising in respect of the exercise of those powers” and substitute the following:

“a first or second action or claim arising in respect of that officers exercise of these powers but will not indemnify an authorised officer in respect of a third or further action or claim”.

Amendment put and declared lost.

Amendments Nos. 202 and 203 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 202:

In page 102, line 40, after “practicable” to insert “and not less than 8 months”.

The amendment adds a caveat to the provision that, as soon as practicable after the completion of an investigation, the authorised officer would prepare a draft report of the investigation. At the moment, the Bill refers to it being done as soon as practicable. I am suggesting that it be done within eight months. This is to ensure that investigations are expedient rather than drawn out or excessively lengthy. I put in "not less than eight months" but I just want to ensure we are not waiting indefinitely for reports.

Amendment No. 203 is important. The Minister will recall our earlier discussion in respect of fairness, efficiency and effectiveness. The amendment provides that as well as having regard to the need for fairness and efficiency, the commission would have regard to necessity and proportionality. I know that necessity and proportionality are mentioned elsewhere in the legislation but this amendment tries to ensure it is cemented in this space in terms of these actions of an authorised officer.

As regards amendment No. 202, I do not see the value of specifying a maximum timeframe of eight months for an authorised officer to draft the report of an investigation. The wording of the Bill at present is: "As soon as is practicable after the completion of an investigation, the authorised officer shall prepare a draft report of the investigation." In my view, this is sufficient to ensure the draft report will be prepared within a reasonable time, depending on the nature of the investigation, whether it is within weeks or months.

As regards amendment No. 203, I believe the section as currently worded, particularly the reference to fairness, covers matters of necessity and proportionality that may arise in respect of rules relating to the conduct of investigations. In this regard, I note that an coimisiún and its officers will be subject to the extensive provisions in this Part on how investigations may be carried out, and that there are more than sufficient principles and policies in this respect. Accordingly, I am not accepting the amendments.

I note that necessity and proportionality are significant in this regard but they are not encompassed in the word "fairness".

Necessity and proportionality have a significant legal meaning, for instance, in relation to data protection. These sections allow for the seizure of interpersonal communications, for example, communications between individuals. The scope of the Bill is such that it allows for personal cloud storage to be accessed and provides wide powers to access what would normally be regarded as personal materials. Naming necessity and proportionality, two of the core principles in the Data Protection Act, would be an appropriate signal to the officers carrying out their work.

I appreciate the Minister's point on the eight-month timeframe. I appreciate that providing a specific time might be too rigorous. The term "as soon as practicable" is a little vague. I will withdraw that amendment and I may use another word in a different amendment. However, amendment No. 203 is important and I ask the Minister to consider carefully the implications of the powers under this Bill and the question of clearly signalling necessity and proportionality because I do not agree they are covered by the phrase "fairness".

Amendment, by leave, withdrawn.

I move amendment No. 203:

In page 104, line 15, after “fairness” to insert “, necessity, proportionality”.

Amendment put and declared lost.

I move amendment No. 204:

In page 104, between lines 17 and 18, to insert the following:

“(3) The Commission shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on an accessible website maintained by it.”

This is a simple amendment. It provides in respect of the rules made under section 139ZF that the commission would publish on a website the guidelines made under the section and any amendment or revocation of those guidelines. This is another accessibility and transparency amendment.

Section 139ZG of the 2009 Act, as inserted by this Bill, requires an coimisiún to publish guidelines made by it in respect of the operation of the enforcement provisions of the Bill. It is proper that an coimisiún should be subject to the same obligation in respect of rules made by it under section 139ZF regarding the conduct of investigations. Accordingly, I am rejecting the amendment but I am considering the matter for Report Stage.

In light of the Minister's engagement, I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 205:

In page 107, between lines 2 and 3, to insert the following:

“(5) Where a judicial review is taken in respect of a decision made by the Commission under this section, the decision of the Commission shall stand pending the outcome of such a judicial review.”.

The amendment seeks to find the balance between the right to take judicial review, which I believe is fundamentally important, and ensuring there is no perverse incentive that would create a chill effect on the commission, whereby decisions might be influenced by the fear of a lengthy legal process or there may be an incentive for a lengthy legal process during which time the decision would not have effect. Considering some of the decisions of the commission will relate to areas where online harm is determined to be taking place, it is important that during the judicial review period the commission's decision would stand, for example, if the commission made a decision on the removal of material considered to be causing online harm. This is the precautionary principle. The avoidance of harm should take precedence during the period of consideration.

While I understand the purpose of the amendment and that it is trying to mitigate against perceived delays to the execution of enforcement decisions, whether the granting of a judicial review should override or pause the application of a decision of an coimisiún is a matter for the courts. In relation to this matter, I note that section 38 of the 2009 Act, as inserted by the Bill, specifies how applications for judicial review regarding decisions by an coimisiún shall be treated under this Bill, including in terms of timescales, the matters that may be considered, the staying of proceedings and the role of various courts. Accordingly, I am not accepting the amendment.

I am not questioning the taking of judicial review in any respect or the process around that but I seek clarification. My question is around what happens while a judicial review is taking place. If the commission makes an order and a judicial review is taken against it, as is the right of any person to do, what happens in the interim? Will the Minister clarify if the guidelines or provisions in respect of judicial review which she just indicated specify that a decision, for example, on the removal of harmful content, would stand during that period? If so, I will be happy to withdraw the amendment but I am not sure if it is the case.

If the Senator is a agreeable, I will get my officials to get back to her.

Amendment, by leave, withdrawn.

I move amendment No. 206:

In page 107, between lines 2 and 3, to insert the following:

“(5) Not less than 20 per cent of the money recovered under subsection (1) shall be used for the purpose of promoting media literacy and digital empowerment.”.

This amendment seeks to ensure that the commission uses some of the moneys recovered from financial sanction to enhance people's participation in digital spaces and to be empowered in their engagement in the media. This comes from something I have pushed for a very long time, namely, that a portion of fines under GDPR should be reserved to be used to give people an understanding of their data rights and to give them the skills and abilities to assert their rights and to be in control of their engagement with online actors and the protection of their personal data. This would be in tune with the spirit of the directive, which is around shifting the balance back to individuals.

The issue is particularly acute in this context because Ireland has extraordinarily low levels of digital literacy. We have one of the lowest levels of digital literacy in the EU. That seems counter-intuitive considering the large numbers of large online actors and service providers but EU research has found that over 45% of persons in Ireland lack basic digital skills. That is an extremely high figure in the EU. Given that the fines will be for those who have broken codes, created online harm and breached the guidance in some ways, it would be appropriate to have a portion of the revenue go towards empowering and supporting the persons who are the victims of inappropriate online action. It cannot be linked directly but raising the general level of digital empowerment would be a constructive use of the fines. I urge the Minister to consider this proposal. I raised other slightly different issues related to protecting personal data but this proposal is more about media literacy and online empowerment. Something could be done in that area. It is partly about shifting the culture and power dynamic in a constructive way. It would be a very good use of some of those fines.

As a matter of public policy, the treatment of moneys raised through administrative financial sanctions is for such moneys to be paid into or disposed of for the benefit of the Exchequer. Hypothecating the moneys, as the Senator suggests, would be counter to this policy. In addition, it would appear to create an incentive for coimisiún na meán to attempt to impose more or higher financial penalties than warranted in order to increase its own operating budget since it will have a function in promoting media literacy. Accordingly, I am not accepting the amendment.

If we are trusting the discretion of the commission in this regard, I would trust the commission to be acting only as appropriate in this context as well. When we have bad online practices, such as those we have been discussing, one of the aspects that is taken advantage of is a lack of media literacy, online skills and awareness of people's rights, and what is or is not appropriate in respect of targeting. Again, I refer to empowering people concerning their digital skills. We have principles in law here sometimes where those most impacted in a particular situation benefit. I refer to people experiencing online harms in this context. Those with a high level of digital skills may know to turn off every possible privacy-endangering function, to say "No" to options and to go through the privacy policies and to deselect everything possible. The people with those skills are less likely to be harmed than people who have not been supported to develop the same level of skills. Therefore, enabling people to learn these types of skills would ensure less impact in this regard. Again, however, I accept we are not going to progress this aspect now. I will come back to this issue. In general, I am concerned that Ireland is pushing ahead strongly on the digital space without properly empowering a large proportion of our citizens.

Is Senator Higgins pressing the amendment?

I will withdraw it and come back to it on Report Stage. I will lobby in the meantime.

Amendment, by leave, withdrawn.

I move amendment No. 207:

In page 117, between lines 23 and 24, to insert the following:

“(aa) where the content appears to the Commission to fall within the category of age-inappropriate online content defined in section 139D, requiring the provider to restrict access to the content to persons who have attained the age of 18 years, or”.

This amendment adds another paragraph to the list of scenarios where "in the course of an investigation" a content limitation notice may be issued. This paragraph would specify that "where the content appears to the Commission to fall within the category of age-inappropriate online content" the provider can be required "to restrict access to the content". The Bill as it stands contains a provision which specifies that the commission may issue a content limitation notice in respect of harmful content. To this, I am trying to add that the commission should also be able to issue a content limitation notice in situations where there are concerns regarding age-inappropriate content.

This amendment aims to enable coimisiún na meán to issue a content limitation notice to restrict the availability of specified content to people aged 18 or over. This would be in cases where the content appears to an coimisiún to fall within the definition of "age-inappropriate content" in section 44, by inserting section 139D into the 2009 Act. In this regard, it is important to note that the content limitation notice provisions in section 46, inserting sections 139ZV to 139ZY into the 2009 Act, are limited in application to "harmful online content" and not to "age-inappropriate online content". This is to limit the potential involvement of coimisiún na meán in matters regarding individual pieces of content to only that content expressly deemed harmful under the Bill. The definition of "age-inappropriate online content" does not constitute a category of "harmful online content" under the legislation, but rather stands separately and is intended to inform the creation of online safety guidance materials and advisory notices. Section 44 is inserting sections 139R to 139T into the 2009 Act rather than online safety codes and, as such, I do not propose to accept this amendment.

I note that in the discussions we have had, including discussions with the Minister's officials, regarding content, whether that is harmful content or other age-inappropriate types of content, those conversations have not simply been around the content but also concerned the manner of content delivery. This is why what I am seeking to provide here, in the context of a possible situation where age-inappropriate content is inappropriately being made available to those aged below an appropriate age, is that during an investigation it should be possible to issue a limitation notice to prevent age-inappropriate content being made available or delivered to those of an inappropriate age. This is what I am trying to get at with this amendment. If we have decided that where there is harmful content an coimisiún should be able to order that such material would be limited and not be made available, then if we also have other situations where there is delivery of harmful content to minors and children, an coimisiún should equally be able to indicate that that is happening.

This is an amendment the Minister should consider. I refer to the possibility of situations arising where inappropriate content is being targeted at children. The Minister is aware that I intend to try to strengthen the section on age-inappropriate content later on Report Stage and this is why I might not press it now. If this age-inappropriate section is strengthened, it could then be a mechanism that would deal with many of the concerns raised by the public. It should also be possible to strengthen the powers of the commission concerning where such content is being targeted. For example, and this is the last one I will give, one of the explicit concerns raised with me is the question of educational online videos. Families have all used these because they were teaching children at home and they effectively have content directly targeted towards children. Basically, we have online educational materials that families are using and then the profiles of those families, including those of the children, have been used as the basis for targeting commercial materials that are inappropriate for children. In that context, this is what I am trying to get at with my amendment. I wish to be clear this is what I am trying to get at with this amendment, in case it might help.

Is Senator Higgins pressing amendment No. 207?

I will withdraw it now and bring it back on Report Stage. I urge the Minister, however, to really consider this matter because it is important.

Amendment, by leave, withdrawn.
Section 46 agreed to.
Sections 47 to 52, inclusive, agreed to.
SECTION 53

Amendments Nos. 208 to 227, inclusive, are related and amendment No. 209 is a physical alternative to amendment No. 208. Amendments Nos. 216 to 222, inclusive, are physical alternatives to amendment No. 215. Amendments Nos. 208 to 227, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 208:

In page 129, to delete lines 38 and 39, and in page 130, to delete lines 1 to 7 and substitute the following:

159E. (1) The Commission shall no later than 1st January 2023 and for the purposes of funding a scheme made under section 159F, make an order imposing a levy on the media service providers referred to in subsection (2) of not less than 3 per cent but not more than 5 per cent of their revenues from subscribers and/or advertising revenues from their services established in the State or targeting audiences in the State.

(2) The providers in subsection (1) are all media service providers (save as specified under subsection (6)) which are under the jurisdiction of the State or which target audiences in the State and are established in another Member State in accordance with section 2A(2).”.

This is a huge grouping of amendments, so I would appreciate any patience that might be possible while I stumble around through my notes.

The Senator can take it at his own pace.

I thank the Acting Chair. Hopefully, we will get out by 9 p.m. This is a major amendment for us in respect of the content levy. It is concerned with setting a date for its introduction and setting a percentage for that levy that will be not less than 3% and not more than 5% of revenues. The funds raised would go towards independent Irish productions. Ultimately, this is about providing certainty to the sector.

I had the pleasure of studying film and television production in Galway-Mayo Institute of Technology for my third-level education. Galway being the place it is, home to TG4 and a UNESCO City of Film, it was always driven home to us the struggle and the campaign that was required to create TG4. I refer to the work that went into establishing the film tax credit in section 481 of the Taxes Consolidation Act 1997 and all the supports required for film-making in Ireland.

I refer to how Ireland pulled out all the stops for film-making, for example, for "Braveheart" with the Defence Forces, and the campaign to create Bord Scannán na hÉireann - the Irish Film Board - originally. This content levy is a moment similar to those initiatives. An Indecon report highlighted the fact we could possibly be looking at €24 million, not in Exchequer funding but in a different funding stream, coming in support of Irish independent productions. The other thing we always learned in college was that it was important for Irish people to be able to see themselves and their stories on screen, and this is what this is about.

This Bill is an opportunity to introduce new funding at no cost to the Exchequer. It would simply keep funding that currently leaves the country to international corporations and use it instead to fund the creation of original Irish content, create employment in Ireland and allow for the development of Irish stories for Irish audiences. This is becoming more important as new streaming services arrive and more content is available across people's screens, making it harder for people to find stories that resonate with their experiences and their nationhood.

The opportunities and the benefit, some of which I have mentioned, are as follows: the creation of an additional funding source for original Irish content; the creation of the conditions to allow Irish production companies to compete further on the international market by giving opportunities for new audiences to see Irish stories; the development of original intellectual property, which has become a cornerstone of international content creation and would allow Irish producers to license their product to other countries and build up scale in the international market; regional development, because at the heart of independent production in Ireland are SMEs working in the regions and a content levy fund investment in these producers is an investment in regional development; and screen tourism, because new investment would bring new employment to the sector, with high-end television drama, in particular, requiring hundreds of cast and crew over a prolonged shoot, and the high-quality content created would offer another opportunity to showcase Ireland as a compelling tourist destination. We have seen that. I need not tell anyone here the importance of film in that regard.

All members of the committee will be aware that key recommendations relating to the content levy included identifying the party responsible for the content levy, the percentage value of the levy, that specific provisions in the Bill be made in that regard, that providers be liable to pay the levy as well, and the ability of Irish independent producers to solely access the fund. These have all received cross-party support at the Oireachtas joint committee.

The longer we delay the levy, which is the reason we have put a commencement date on this amendment, the longer money will leave Irish consumers and go to the international streaming services with no guarantee of original Irish content, the outcome of which is Irish people paying for streaming services that have a small minority of Irish content to view on them.

I also want to address a piece about intellectual property, IP. The importance of copyright protection for the cultural economy and creative economy cannot be underestimated. This area of law must be updated so that creators can earn a fair income from their work. Copyright is the principal tool by which creators can generate a sustainable income and wealth, and to protect their share of the value they create.

I will await the Minister's response on that. I suppose I could sit down and we could deal with amendment No. 208. I am sure other Senators want to come in.

Senator Warfield is more than welcome to speak to the block.

I would not mind taking a break and then I will come back in.

The Senator can come back in if he wants to. Anyone who speaks now can speak to all of the block in his or her contribution or can come in and come out, whatever the Senators prefer.

I would be grateful if the Minister spoke to amendment No. 208 in response to me, if that is okay.

I will bring everyone in on the block and the Minister will respond to the block. I would like to have everybody's contributions before we bring in the Minister, regardless of whether it is in a block or in a few small blocks. Senator Cassells said he wanted to come in on the block and I ask him to go ahead. I will bring in Senator Higgins then.

I will speak to amendment No. 209 in the name of Senator Malcolm Byrne and in my name, which also deals with the issue of the content levy.

We dealt extensively with this at the Joint Committee on Tourism, Culture, Arts, Sport and Media. When we dealt with Screen Producers Ireland, they were direct in making their case to us. It comes down to us asking ourselves, not only in this Chamber but as a society, whether we care what content we see on our screens and whether we are quite happy to see a plethora of it, given that we have a growing number of platforms, television stations and imported trash on our screens. It is true. Is that what we are entering? It is quite worrying. It goes back to something the Minister and I have discussed previously in terms of promoting domestic sport, such as the League of Ireland, in this country. People in RTÉ will tell the Minister that we can stick up a film from the 1980s and perhaps get better traction than putting money behind showing domestic sport.

Going back to original content, when we met with Screen Producers Ireland, they pointed out that the Olsberg report had estimated the gross value added of film, television and animation production in Ireland was €692 million in 2016 with full-time equivalent employment of nearly 12,000 jobs. In the intervening six years, the number of people employed in that sector has grown but the costs associated with that sector have equally grown. A case was made strenuously, and supported by RTÉ, TG4 and Virgin Media, by the way, for the introduction of the levy so that it could be harnessed. My party has called for it, from 3% but not more than 5% of the revenues from these subscribers, to ensure that fund is there to support that.

The issue we are debating here is the timeframe for the introduction. We were calling for that within one year. We were not looking to state, as it is outlined in the Bill at present, "an order imposing a levy on the media" may be made. We were looking for a timeframe so that we would have certainty with respect to that. That is what we have come down to and on which we would like to engage with the Minister.

If the Minister can address the additional amendment, No. 210, on how the levy should be calculated in terms of the amount of the subscriptions collected from audiences etc., and the amount paid by advertisers, I would appreciate it.

I have a number of small amendments in this grouping. To be honest, the most fundamental and most important amendments have been put by the members of the Joint Committee on Tourism, Culture, Arts, Sport and Media, Senators Cassells and Warfield.

They reflect the views of the Joint Committee on Tourism, Culture, Arts, Sport and Media and those amendments are fundamentally in tune with the mandate from the AV directive.

I talked at the beginning of this debate about there being a core EU principle, that of exception culturelle, and a very clear mandate from the AV directive in line with that which is that cultural content cannot be solely left to the market and the role of the state is not simply to regulate a market in this regard but that it is, in fact, the right and duty of a state, and indeed of the European Union as a whole, to seek to promote cultural diversity and the idea of different voices being raised and reflected. This, again, is not a market incentive for European works, or whatever, but it is a public duty to promote cultural participation and different and diverse voices, and that culture serves crucial social and cultural functions. These provisions are not then simply a nice add-in to the commercial regulation of a sector but the provisions within the AV directive that allow for European works to be promoted are core to the origins of the EU directive itself. It is the protection, the function but also the promotion and participation mandate. That is why it is very appropriate that Senators Cassells's and Warfield's amendments tried to ensure, not simply that it is provided that there may be European work schemes, and so forth, which is there in the Bill, but to seek to put flesh on that and to give a hard signal that it is going to be given weighting and import.

Some of their amendments also speak to the importance of ensuring that there are, for example, independent media providers in that space and are given a clear amount of that space. That, again, is around ensuring that there are diverse voices and issues expressed. Their amendments talk to the need for this to be a substantive area, be it 3% to 5% or more, of expenditure. My amendments are a whole series of little ones and are around that diversity piece, along with a few others.

I will go through them quite quickly now. I will not be moving my amendment No. 211 when it comes up because I do not believe it is correctly placed and we have already discussed that issue, which is of the danger the other content levy and this content levy and how they might be interpreted in respect of each other. I will put that aside and will not go into that for now.

Amendment No. 216 seeks to amend section 159F by adding that the funds under the European work scheme supporting new audiovisual work would recognise the diverse experiences of the people of the island of Ireland. We know that people's experiences are very different. Today there was a very powerful protest outside the Oireachtas around Traveller mental health. We also know and the Seanad group I am a member of has put forward legislation that Traveller culture and history is very important. That has been quite a different experience of life in Ireland.

There are also things we have seen in the literary space such as Oein De Bhairdúin's collections on folklore and Rosaleen McDonagh's play Walls and Windows. There is a rich depth of Traveller culture in Ireland which has not often been recognised and reflected. Very often Travellers have had the experience where they are covered in the media usually around discussing the problems, difficulties or obstacles they may be facing rather than their cultural representation. That is an example of why diversity is something important to remember.

Amendment No. 217 seeks to ensure that the scheme would not only support audiovisual works engaging with the experiences of persons of Irish ancestry living abroad but those of Irish origin or ancestry living abroad. For example, this would apply if one has lived in Ireland for a number of years and has now moved to another country, regardless of whether one's parents were Irish. That is important because Irish ancestry has tied it to a kind of genetic connection rather than one which is of Irish origin. If, for example, people grow up here for 20 years and then moves abroad, they may well be able to make an important contribution on the Irish experience even if they have moved abroad.

Amendment No. 218 is important in respect of biodiversity, environmental sustainability and climate change. It is because we know that we are in this climate change crisis and one of sustainability around materials, resources and all of that, but biodiversity is something a little bit different from sustainability. Biodiversity is a very important subject matter. If someone wanted to pick something that was place-based and about our country, the network of ecological biodiversity, which is different again from environmental sustainability, but the ecology, species, plants in our country and that biodiversity piece is something that is very valuable. It is something a little different from just climate change and environmental sustainability as it is adding something different. It would be appropriate to insert that in amendment No. 218.

Amendment No. 219 seeks to delete the word "including" because the way this is worded in the Bill at the moment is that equality, diversity and inclusion are made as subsections or subsets of human rights. Human rights are, in fact, reflected in our human rights and equality legislation, that is, it is not human rights "including" equality but is human rights "and" equality. The importance of this is because while equality relates to human rights, equality is wider than simply human rights as there are many equality provisions which go wider than just the scope of fundamental human rights. It would be appropriate then to have human rights, equality, diversity and inclusion rather than human rights "including" equality, diversity and inclusion. Making it a subset is out of line with other legislation and is inconsistent with many provisions, including the provisions of our Irish Human Rights and Equality Commission Act.

Amendment No. 220 would add a new paragraph which describes audiovisual works which might be supported by the scheme. I seek in that to include works which support literacy. It is different to having Irish language content but is also to have works which promote literacy in the Irish language or in Irish Sign Language and in programming. I previously mentioned in respect of Irish Sign Language that the Seanad and the Cathaoirleach of the Seanad, indeed, played a very key role in securing official recognition of Irish Sign Language. In delivering on that recognition we should be supporting programmes which feature or engage with Irish Sign Language.

On Irish language literacy, the scheme could play a very important role in fostering better engagement through the language in the audiovisual programming which would be mentioned.

I perhaps reserve the right to mention that there may be other languages which may not be covered. I have focused here on the Irish language and on Irish Sign Language because they have official recognition but Cant, which is a Traveller language, is another example. Perhaps that may come under the cultural or a diversity provision rather than under other provisions. I have an example here of Irish language content which is not Irish language literacy content but language content. We are seeing in the film "Arracht" and in "An Cailín Ciúin" some very exceptional content which has been developed in that area and which are of an international standard. It would be very important that this work scheme supports that kind of content which is exceptional.

Amendment No. 221, and my apologies but this is our last clump, unfortunately, has a great deal in it. This amendment adds the provision that the scheme will again support new audiovisual works which promote digital empowerment and data protection awareness. I have spoken about this at length and the Minister is aware of my concern and of the fact that we have a very low levels of digital skills here. In fact the 2020 EU Digital Economy and Society Index said that 45% of people in Ireland lack basic online and digital skills where one can perform basic functions.

Amendment No. 222 seeks to provide that the scheme would support works and research, assessments of need, feasibility studies or pilot projects in relation to programming and measures reflected in paragraph (c). It basically states that it would also support capacity building for the delivery of such artistic works. This is important if we think of under-represented and under-reflected communities, perspectives or voices in Ireland. It would allow for building the capacity to produce materials appropriate to this kind of sphere. It simply strengthens that provision.

Amendment No. 225 provides that in preparing a scheme, the commission would seek to ensure understanding and enjoyment of new audiovisual programmes by people with a disability. Again, the principle of participation applies. It is not just the enjoyment of programming but participation in the production of such materials. We have already discussed this issue at length. The Minister will recall that amendments from across the House proposed to reflect the evolving understanding of the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and the principles of cultural participation, not only cultural consumption but participation in the creation of materials.

Amendment No. 226 again refers to the need to support cultural and social participation for users of the Irish language and Irish Sign Language.

Amendment No. 227 provides that, in preparing a scheme, the commission would have regard to the need to support the development of new audiovisual programmes of interest to children and young people under the age of 25. It states that having regard to the need to support the development, it would also encourage development. I seek to go a little further because while the legislation recognises some markets or areas that exist, this is one area that could be strengthened.

That was a long set. My amendments are all small and aimed at tweaking the Bill. I support the more substantive amendments from Senator Warfield and Senators Cassells and Byrne, as they probably go to the core of the matter, the hard fact of how much money gets designated to this area and how it is apportioned.

When we have 228 amendments they cannot all be big and substantial. I thank Senator Higgins for her contribution on all of her amendments in the grouping.

I will speak to amendments Nos. 210 and 212.

The Senator has seven amendments in the grouping, amendments Nos. 208, 210, 212, 214, 215, 223 and 224. He can deal with them all now or contribute again after Senator Carrigy speaks.

I will deal with them now. Amendment No. 210 is similar to the previous amendment on the levy. It will provide additional clarity and certainty around who will pay the levy, when it will be paid, etc., to ensure that all those who should be paying the levy will be included by being more specific about the way we calculate it. I specifically mention advertising to ensure that companies are paying for advertising that targets Irish audiences. Obviously, there are channels that carry Irish ads.

Amendment No. 212 provides additional certainty and ensures that it is a duty of the commission to introduce such a levy, rather than it being a choice. Amendment No. 214 is to ensure that one scheme, rather than several schemes, are established. Amendment No. 223 relates to intellectual property, IP, protection. Currently, a production can be filmed in Ireland by a streaming giant which will own the rights in the United States for the production and all additional profits. Producers and creators should have rights to their work, including spin-offs, additional seasons and so on. This amendment will also allow the media commission to co-partner with other State agencies. Amendment No. 224 is a technical amendment. Sin é.

On amendments Nos. 208 to 210, inclusive, the joint committee noted that no implementation date is set. It is important that we add a date. Whether it is feasible to set a date of 1 January 2023 or 12 months from now, I do not know. The latter might be more feasible because we do not know when the Bill will be enacted. We have a long way to go yet before that happens but we are getting there.

One point the joint committee took from its meetings with the various media companies, including Virgin, TG4 and RTÉ, was the pressing need for significant investment in Irish programming. That has to happen. Many of the subscription and advertising services are gaining huge revenue from households across the country, creating a loss for the likes of RTÉ that are producing programming here. The sooner we bring in this legislation, the better. As I said, in our discussions with Screen Producers Ireland and the various companies producing programming in Ireland, the joint committee heard that this legislation needs to be implemented. It is important that we provide a fixed date, not later than 12 months from now, by which it will be implemented to ensure we get proper home-produced programming. We value this programming but it has been under-resourced in recent times because these other companies are making significant profits off us.

I call the Minister to respond to the contributions on all 20 amendments and the various sections.

I thank the Senators for bringing forward amendments Nos. 208 to 227, inclusive, which relate to the European works levy and scheme provisions contained in section 53. I acknowledge that this is an important issue for the Irish audiovisual sector and it is one on which my officials have engaged extensively with the sector.

By way of background, Article 13(2) of the audiovisual media services directive gives member states the option to levy media service providers under their jurisdiction or which are not under their jurisdiction but are targeting audiences in their territories. The proceeds of such a levy must be used to fund the production of European works. Section 53 exercises this option by providing for the imposition of a content production levy on media service providers to fund a content production scheme to support the production of European works, which of course includes Irish works. The section further provides that funds raised by the levy can be used to support the production of new audiovisual programmes across a number of areas, including Irish culture and language, climate change, and equality, diversity and inclusion.

Both the levy and the associated scheme will be administered by coimisiún na meán. The section also provides that a minimum of 25% of funds raised by the content production levy shall be for the production of programmes in the Irish language. As Senators will be aware, there are a range of public funding measures in place to support the production of audiovisual works in the State, including through the section 481 film tax credit, Screen Ireland, the sound and vision scheme operated by the Broadcasting Authority of Ireland and through our public service broadcasters, TG4 and RTÉ, which are funded through the Exchequer and television licence fee, respectively. In 2020, these supports collectively amounted to over €198 million. The content production levy will provide the means to provide further support to the audiovisual sector, which has been an Irish success story.

Amendments Nos. 208 and 209 provide that an order imposing a levy on the media service providers shall be not less than 3% but not more than 5% of their revenues from subscribers and-or advertising revenues. It is my view that it is not appropriate to set out a percentage for the levy in primary legislation, given the need to carry out further research into the risks and benefits of such a measure. Setting a specified rate in legislation is inflexible, as it would prevent an coimisiún from varying the rate following any research it may carry out or subject to changing circumstances.

It is important to note that any levy system will have to abide by the principles of proportionality and non-discrimination under EU law. Accordingly, any levy will be imposed equally on all audiovisual media services targeting the Irish market, both those based outside Ireland and Irish media service providers, such as RTÉ and Virgin Media Television, will also be subject to this levy. In addition, Irish services and services based elsewhere in the European Union would be eligible to apply to the content production fund established as a result of the levy.

Furthermore, it should be noted that any levy will only apply to income earned within the State. For example, if a provider such as Netflix earns 2% of its overall EU revenues in the State, the levy can only apply to that 2% of its overall revenues. These factors could significantly constrain the overall positive impact on the potential level of additional funding for Irish content.

Amendments Nos. 208 and 209 also provide for the inclusion of timelines requiring the content production levy to be commenced by a specified period. I intend to commence the provisions of the Bill giving effect to content production levy after coimisiún na meán has carried out independent research into the viability of such a levy in an Irish context. It is important that a thorough examination of these issues is undertaken in order to avoid any unintended consequences arising from the introduction of a levy. It is intended that an examination of the content production levy will be among an coimisiún’s priorities on establishment. I expect that an coimisiún will carry out a programme of stakeholder engagement on the matter and will subsequently report to me with its recommendations. For the reasons I have set out, I do not intend to accept amendments Nos. 208 and 209.

Amendment No. 210 provides that the content production levy shall be calculated on the amount of the subscriptions collected from audiences in the State, and on the amount paid to media service providers by advertisers for advertisements targeting audiences in the State. The amendment also proposes that the levy order should have effect for a minimum period of five years. Similar to amendments Nos. 209 and 210, I do not intend to accept this amendment as I believe specific details regarding the calculation of the levy should only be decided following a thorough examination of the content levy. Setting out such detail in primary legislation would constrain the options available to an coimisiún in making a levy order.

Amendment No. 212 provides that a content production scheme or schemes shall be made as soon as possible after 1 January 2023. Amendment No. 213 serves a similar purpose by obliging an coimisiún to implement a content production scheme as soon as possible after establishment. Given I do not intend to commence the content production levy until the necessary research has been undertaken to inform the levy design I cannot accept amendments Nos. 212 and 213. Amendment No. 214 is a consequential amendment to the previous amendment and I therefore do not intend to accept it.

I understand the intention of amendment No. 211 arises from a concern that sections 21 and 22 of the Broadcasting Act 2009, as amended by the Bill, which relate to the industry levy imposed for the purposes of funding the operational costs of an coimisiún, may adversely impact the operation of the content production levy and cause confusion as to which levy is being referred to. Section 159E(8) provides that the terms "levy" and "levy order" should be construed in relation to sections 159E and 159F only. Section 21(12) provides that the terms "levy order" and "levy period" used in sections 21 and 22 should be construed in relation to those sections only. I am advised that this ensures a clear delineation between the levy set out in sections 21 and 22 and that set out in section 159E. Accordingly, I am not accepting amendment No. 211.

Amendment No. 215 sets out additional detail in terms of the nature of programmes to be funded under a scheme, and specifies that drama, films, animation and factual programmes can be funded under a scheme. In addition, it sets out that a scheme should specifically fund works by Irish creative talent. The amendment also sets out that a scheme can provide development funding to support the production of audiovisual works. First, the additional detail included in the paragraph (c) of the amendment regarding the types of programming to be funded appears to achieve the same policy intent as the current wording of the section. The wording of section 159F(2) of the Broadcasting Act 2009, as inserted by section 53 of the Bill, provides that a scheme can fund the production of audiovisual programmes. As this wording already captures all types of audiovisual content, including drama, films, animation and factual programmes, I am therefore of the view that it is unnecessary to include any specific detail in this element of the provision.

Paragraph (b) of this amendment proposes that a content production scheme would specifically support works which relate specifically to the works of Irish creative talent. On the fact of it, the intrinsic quality of works of Irish creative talent would be appear to be that such works are produced by Irish citizens. This would imply that persons of Irish nationality would be given preference in any funding provided through a content production scheme. While I am of course strongly in favour of doing all we can to support Irish creatives, this element would run contrary to European Union law on non-discrimination as it would appear to place Irish nationals at an advantage over nationals or residents of other member states.

Paragraph (d) of this amendment adds a clarification that a content production scheme may make provision for development funding for programmes funded under this section. While I am of the view that the existing provision in the Bill as currently drafted already provides for this, I acknowledge that there is scope to add further clarity regarding development funding. Accordingly, I have asked my officials to consider the matter further with a view to bringing forward an amendment. At this point, I would signal that my intention is to address any amendments to the content production levy and scheme on Dáil Committee Stage rather than in this House, to allow for meaningful engagement with stakeholders on this issue. Accordingly, while I cannot accept amendment No. 215, I hope to address some of the concerns raised by the amendment.

Amendments Nos. 216 to 221, inclusive, seek to amend the language applying to the kind of audiovisual programmes which may be funded by a content production scheme with a view to further specifying the scope of content which may be supported. Amendment No. 216 adds the term "diverse" before the reference to "experiences of the people of the island of Ireland" in subsection (a) of paragraph (2) of section 159F. I understand the intention of the amendment. However, I believe that the term "experiences of the people of the island of Ireland" necessarily carries with it the recognition that such experiences shall be diverse, given the existing diversity among our people. I do not therefore intend to accept the amendment.

Amendment No. 217 amends the term "people of Irish ancestry living abroad" to "people of Irish origin or ancestry living abroad" in subsection (a) of paragraph (2) of section 159F. I understand the intention of the amendment but believe that the term "Irish ancestry" already incorporates people of Irish origin living abroad. The term "ancestry" is not intended refer to ethnic origin in a way that implies racial connotations. Instead, the term is intended to refer to origin, at some point, on our island in all its diversity, both past and present. I do not therefore intend to accept the amendment.

Amendment No. 218 adds the term "biodiversity" to "environmental sustainability and climate change" in subsection (a) of paragraph (2) of section 159F. I recognise the intention of the amendment. I am open to amendment on this and intend to return to the matter on Report Stage.

Amendment No. 219 deletes the term "including" in the phrase "human rights, including equality, diversity and inclusion" in subsection (a) of paragraph (2) of section 159F. I understand the question here is whether the phrasing implies that equality, diversity and inclusion should be considered under the rubric of the overarching idea of human rights or whether they should be considered separate concepts. I think this may be a philosophical question which will not have a substantive impact on the kind of audiovisual programmes which may be supported by a content production scheme. For that reason, I intend to reject the amendment.

Amendment No. 220 inserts a provision specifying that new audiovisual programmes may, through a content production scheme, support literacy in the Irish language, or support literacy in Irish Sign Language. In terms of literacy in the Irish language I believe that this may be covered by the reference to the Irish language in paragraph (a) of subsection (2) of section 159F. As regards literacy in Irish Sign Language, I will further consider whether the references to the types of audiovisual programmes referenced in subsection (2) would encompass programmes relating to literacy in ISL and return to the House on Report Stage.

Amendment No. 221 would specify that new audiovisual programmes in relation to digital empowerment and data protection awareness may, through a content production scheme, be funded. I believe that the references to science and education in paragraph (a) of subsection (2) of section 159F would already allow such programmes to be funded. Therefore, I do not accept the amendment.

Amendment No. 222 would specify that support under a content production scheme may be given in relation to capacity building. I believe the intention of the amendment is already captured by paragraph (d) of subsection (2) of section 159F which provides that support under the scheme may be given in respect of research, assessments of need, feasibility studies or pilot projects. The insertion of the term "capacity building" would be too expansive. The purpose of a content production scheme is to fund new audiovisual programmes. The term "capacity building" implies that a content production scheme could be used, for example, in skills development. I believe that skills development in the sector is more appropriately progressed by Screen Ireland through Screen Skills Ireland, which is Ireland’s screen industry training resource. As such, I am not accepting the amendment. However, as I indicated in my response to amendment No. 215, I can see the merit in inserting a reference to development funding in paragraph (d) of subsection (2) of section 159F. This reference is not as capacious as "capacity building" but may capture the intent of amendment No. 222.

Amendment No. 223 provides that a content production scheme shall dedicate not less than 80% of the funding available under each scheme to audiovisual works that are developed or produced by independent production companies, as described in, and which qualify as an independent programme under section 116(12) of the Broadcasting Act 2009. The amendment further seeks to provide for a fair and equitable balance in relation to the allocation of rights ownership in those works funded by a scheme under this section.

The amendment also provides that a funding scheme under the section could be managed by an coimisiún in co-partnership with another agency or that its management may be delegated by an coimisiún to another agency on such terms and conditions as an coimisiún shall prescribe.

In regard to the proposal to dedicate at least 80% of funding from a scheme to independent productions, I can see the merit in specifying that the Bill contains an explicit acknowledgement that the independent productions can benefit from funding through a scheme made under the section and I have, therefore, asked my officials to examine this matter further with a view to bringing forward a Government amendment in the context of Dáil Committee Stage. In particular I will ask them to examine an appropriate definitions of "independent programmes" and "independent production company", and the appropriate percentage.

The issue of rights ownership is a complex issue that cuts across the remit of the Minister for Enterprise, Trade and Employment. Given the need for further extensive policy analysis and consultation in the matter to ascertain the implications of providing for this in legislation and the fact that this issue is not provided for in the AVMSD, I will ask my officials to further examine the issue.

Regarding the proposal that a funding scheme under the section could be in co-partnership with another State agency or that the management of a scheme could be delegated entirely to another State agency, I do not see the value in this portion of the proposed amendment. I am confident that an coimisiún will effectively manage the funding scheme, should it be introduced, given it will operate as both a media development agency and a regulatory body. My Department is currently working with the Public Appointments Service to launch an executive search for the commissioner and executive chairperson posts. This will include a media development commissioner who will take responsibility for the funding and development of the wider media sector. Given an coimisiún will be responsible for the content production levy, it is appropriate that it is also the body responsible for the implementation of content production schemes and I expect that the media development commissioner will work closely with Screen Ireland with a view to maximising the potential of content production schemes. Given the complexity of the proposed amendment, I intend to ask my officials to carry out further consultation and analysis with a view to returning to some of these matters on Committee Stage in the Dáil.

Amendment No. 224 is a consequential amendment following on from amendment No. 223 and, therefore, I do not accept it.

Amendment No. 225 provides that an coimisiún, in preparing a content production scheme, shall have regard for the need to ensure that people with disabilities can participate in new audiovisual programmes funded by schemes made under this section. I recognise the intention of the amendment, and I would be concerned that specifying that any one group should be prioritised for participation would imply that other groups, such as an ethnic minority, would not be prioritised. I wish to give this matter further consideration on Report Stage.

Amendment No. 226 provides that an coimisiún, in preparing a content production scheme, shall have regard for the need to support cultural and social participation, access to programming for the use of the Irish language and Irish Sign Language. Similar to amendment No. 220, I believe that some of the proposed amendments may be encompassed under section 159F(2)(a). However, as with amendment No. 220, I will give further consideration to the amendment in the context of Report Stage.

Amendment No. 227 provides that an coimisiún, in preparing schemes under this section, shall have regard for the need to support the development of community broadcasters. The Bill as initiated sets out that an coimisiún shall encourage the development of community broadcasters and, therefore, I do not see a substantive distinction between the terms "support" and "encourage". Accordingly I proposed to reject the amendment.

I thank the Minister for a very comprehensive response and for being open, whether on Report Stage here or on Dáil Committee Stage. It really does not matter, as we are all here for the common good to progress and strengthen the Bill and to make it workable. Whether it is in this House or in the Dáil, at the end of the day it will not matter that much. I heard an indication of openness to amendment No. 223 relating to independent production companies. I also heard an openness to amendment No. 215, which is about Irish culture and language and those works. That is very welcome. The Minister referred to the content levy and not prescribing a percentage in legislation. I often think about the statutory requirement that RTÉ has for a minimum spend on independent productions. That is written into the Broadcasting Act 2009. It has value of approximately €40 million. It is a comparison for where we in legislation prescribe that a certain amount be spent on a certain thing. Independent production companies are an obvious parallel, and €40 million is a significant amount. The difference is that it is public money that is prescribed to RTÉ. I see parallels in the fact that we have statutory rules around that spend from RTÉ and independent production companies. We should also have that statutory obligation in this legislation. I am in disagreement about prescribing when it should start and about the percentage. Some flexibility for the media commission to set the percentage levy is important but I am in disagreement about whether we should put it in this Bill. We need to have confidence. It comes back to what I spoke about at the start. We move mountains in this country for film and we have a great reputation around the world. There seem to be tax breaks everywhere for film so the tax break alone does not bring productions here. It is a great location. We give access to our UNESCO heritage sites such as Sceilg Mhichíl. The Minister's increased investment in Screen Ireland has been commendable as was the work for decades on the part of the Irish Film Board, which is now Screen Ireland. We need to be confident in our offer and we should not be afraid of this levy. We should not be afraid of providing for it in legislation. I will probably press amendment No. 208.

We are not there yet but we will be shortly.

On the issues of origin or ancestry, I do not agree that they are really captured and that they are the same. Ancestry covers, for example, people who may be second or third generation Irish and that is fine. It is good that is covered. Origin also covers persons who may only have spent a period of time in Ireland. I do not agree that ancestry covers those things. I urge the Minister to check this because the question on human rights is not actually a philosophical question; it is a legal and legislative question. By framing it in this way where there is an inclusion, the Minister is out of line with the human rights and equality legislation and with other legislation where human rights and equality, rather than human rights, including equality, is the norm in terms of what is used. I do not want this legislation to be inconsistent with other legislation in that regard. It is not really a philosophical question; it is a legislative drafting question and it is important that we endeavour to be consistent with other areas.

Whether amendment No. 208 is accepted and whether specific percentages are included as set out by Senator Warfield, there is an opportunity in this legislation to set a very ambitious measure and choose to say that there will be a percentage. This is the positive ask. It is not simply like responsibility. This is a huge opportunity that we should seize. I do not know about the capping but we should seize the opportunity to say that there will at least be a minimum. We should not apologise for doing that. We should not delegate it solely to the commission as to whether this will be done. We should say that this is a chance for a massive leap forward. If we do not do it, and other countries put in percentages in respect of the levies for producing works, we will have lost that space.

This directive is being transposed across Europe. The countries that seize this moment in terms of interesting content being produced are going to benefit. We have a risk, as was mentioned. Our tax measures have been copied all over the world. I do not want us a few years down the line to be starting to try to copy the way in which other countries introduce the content levy. Let us seize the moment now.

I thank the Minister for her comprehensive reply. Just to make sure I understand the point, there is not a dispute here on the issue of the content levy. I understand the Minister is saying it is the issue of how much would be collectible by the State and how much would be applicable here. I take on board what the Minister is saying about ensuring that we have a scheme that works to the maximum for this country. I would like to discuss that further. The Minister picked a random figure of 2% in respect of Netflix and its overall income earned here, what that 2% is in terms of pounds, shillings and pence in this country and what that 5% of the 2% would be and how it would be applicable. I would like to discuss this further with the representative bodies. On amendments Nos. 208, 209, 213 and 214 and in respect of amendment No. 215, the Minister indicated her willingness to look at this further.

The Minister has made a very comprehensive reply to this group of amendments but if she wishes to come back in, she is more than welcome.

On amendments Nos. 208, 209, 212, 213 and 214, I have said that the content production levy has the potential to raise funds to further support the audiovisual sector. It is really important in that context that the levy is effective and efficient in its design and application. That is why we are giving time to the commission to do that research and make sure it works properly.

Is Senator Warfield pressing amendment No. 208?

Amendment put:
The Committee divided: Tá, 5; Níl, 19.

  • Boylan, Lynn.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Carrigy, Micheál.
  • Cassells, Shane.
  • Conway, Martin.
  • Cummins, John.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Hackett, Pippa.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Murphy, Eugene.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Fintan Warfield and Niall Ó Donnghaile; Níl, Senators Seán Kyne and Robbie Gallagher.
Amendment declared lost.

I move amendment No. 209:

In page 129, to delete lines 38 and 39, and in page 130, to delete lines 1 to 7 and substitute the following:

159E. (1) The Commission shall no later than one year after it is established and for the purposes of funding a scheme made under section 159F, make an order imposing a levy on the media service providers referred to in subsection (2) of not less than 3 per cent but not more than 5 per cent of their revenues from subscribers and/or advertising revenues from their services established in the State or targeting audiences in the State.

(2) The providers in subsection (1) are all media service providers (save as specified under subsection (6)) which are under the jurisdiction of the State or which target audiences in the State and are established in another Member State in accordance with section 2A(2).”.

Amendment, by leave, withdrawn.

I move amendment No. 210:

In page 130, to delete lines 8 to 11 and substitute the following:

“(3) The levy order shall provide for the collection, payment and administration of the levy, including:

(a) that the levy shall be calculated on—

(i) the amount of the subscriptions collected from audiences in the State by, and

(ii) the amount paid by advertisers for advertisements targeting audiences in the State to,

the media service providers specified in subsection (2),

(b) the period being not less than five years in respect of which the levy is imposed,”.

Amendment put and declared lost.

I move amendment No. 211:

In page 130, between lines 34 and 35, to insert the following:

“(6A) No provision of section 22 of the Online Safety and Media Regulation Act 2022 shall apply to this section.”.

Amendment, by leave, withdrawn.

I move amendment No. 212:

In page 131, line 4, to delete “may prepare a scheme” and substitute “shall, as soon as possible after the 1st January 2023, prepare a scheme or schemes”.

Amendment put and declared lost.

I move amendment No. 213:

In page 131, line 4, to delete “may prepare a scheme” and substitute “shall as soon as possible after establishment prepare a scheme or schemes”.

Amendment, by leave, withdrawn.

I move amendment No. 214:

In page 131, line 5, to delete “any” and substitute “a”.

Amendment put and declared lost.

I move amendment No. 215:

In page 131, to delete lines 13 to 33 and substitute the following:

“(2) The scheme or schemes made under subsection (1) shall support the development and production of new audiovisual works (including films, drama series, animation and factual/documentary) which relate to or involve any or all of the following:

(a) Irish culture and language, including Irish storytelling on screen, giving full breadth to the diversity of background, heritage, experience and history, both fictional and factual;

(b) the works of Irish creative talent, including writers, directors, producers, animators, performers, designers, composers and other creative and technical personnel, including new and emerging as well as leading Irish creative talent;

(c) works which may address in the manner of their making and the stories they tell:

(i) the experiences of the peoples of the island of Ireland, including the experiences of peoples of Irish ancestry living abroad;

(ii) environmental sustainability and climate change;

(iii) human rights, including diversity, equality and inclusion;

(iv) science or education; and

(v) adult literacy or media literacy;

(d) the provision of development funding for the works outlined in paragraphs (a) to (c), of funding for research into the background to the works so outlined, pilot projects in relation to those works and of such other funding as may appear to the Commission to support the works outlined above; and

(e) such incidental, supplementary or consequential measures that appear to the Commission necessary to fund and/or support in the light of the above.”.

Amendment, by leave, withdrawn.

I move amendment No. 216:

In page 131, line 18, after “the” where it firstly occurs to insert “diverse”.

Amendment, by leave, withdrawn.

I move amendment No. 217:

In page 131, line 19, after “Irish” to insert “origin or”.

Amendment, by leave, withdrawn.

I move amendment No. 218:

In page 131, line 20, after “sustainability” to insert “, biodiversity”.

Amendment, by leave, withdrawn.

I move amendment No. 219:

In page 131, line 21, to delete “including”.

Amendment, by leave, withdrawn.

I move amendment No. 220:

In page 131, between lines 26 and 27, to insert the following:

“(ia) support literacy in the Irish language, or support literacy in Irish Sign Language,”.

Amendment, by leave, withdrawn.

I move amendment No. 221:

In page 131, line 27, after “literacy” to insert “, digital empowerment and data protection awareness”.

Amendment, by leave, withdrawn.

I move amendment No. 222:

In page 131, line 31, after “need,” to insert “capacity building,”.

Amendment, by leave, withdrawn.

I move amendment No. 223:

In page 131, to delete lines 34 to 37, and in page 132, to delete lines 1 and 2 and substitute the following:

“(3)(a) A scheme shall, in particular:

(i) dedicate not less than 80 per cent of the funding available under each scheme to audiovisual works that are developed or produced by independent production companies, as described in, and which qualify as a ‘independent programme’ under, section 116(12) of the Act of 2009; and

(ii) where there is a fair and equitable balance in relation to the allocation of rights ownership in those works, as prescribed by the Commission, after consultation with independent production companies (or such persons appearing to the Commission to represent them) between the independent production company producing the work and the audiovisual media service provider or providers referred to in section 159F(2), on whose service the work is included.

(b) A Scheme may, in particular:

(i) specify the kind of support for which funds may be granted or advanced by reference to the subject matter of the programmes within paragraph (a), (b) or (c) of subsection (2) or in relation to the measures referred to in subsection (2)(e);

(ii) limit support for which funds may be granted or advanced in a particular period to support of specified kinds; and

(iii) be managed by the Commission in co-partnership with another agency or its management may be delegated by the Commission to another agency on such terms and conditions as the Commission shall prescribe.”.

I will withdraw with the right to resubmit. The Minister has been positive about some aspects of it.

Amendment, by leave, withdrawn.

I move amendment No. 224:

In page 132, line 5, after “(b)” to insert “or (c)”.

Amendment put and declared lost.

I move amendment No. 225:

In page 132, line 16, after “understanding” to insert “, participation in,”.

Amendment, by leave, withdrawn.

I move amendment No. 226:

In page 132, between lines 17 and 18, to insert the following:

“(aa) support cultural and social participation and access to programming for users of the Irish Language and Irish Sign Language,”.

Amendment, by leave, withdrawn.

I move amendment No. 227:

In page 132, line 21, after “encourage” to insert “and support”.

Amendment, by leave, withdrawn.
Section 53 agreed to.
Sections 54 to 77, inclusive, agreed to.
TITLE

I move amendment 228:

In page 7, line 13, after “services;” to insert the following:

“to increase the visibility and use of Irish as a spoken language in media and public life and ensure a diversity of content for the Irish-speaking community;”.

May I speak to the amendment?

No, it has already been discussed. Those are the rules.

Amendment, by leave, withdrawn.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 7 June 2022.

That concludes our quite lengthy deliberations. When is it proposed to sit again?

Tomorrow morning at 10.30.

Cuireadh an Seanad ar athló ar 9 p.m. go dtí 10.30 a.m., Dé Céadaoin, an 1 Meitheamh 2022.
The Seanad adjourned at 9 p.m. until 10.30 a.m. on Wednesday, 1 June 2022.
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