Amendments Nos. 1 to 3, inclusive, and amendments Nos. 10 to 12, inclusive, are related and may be discussed together.
Digital Services Bill 2023: Report and Final Stages
I move amendment No. 1:
In page 10, line 21, to delete “section 201(2)” and substitute “that section”.
Amendments Nos. 1 to 3, inclusive, and amendments Nos. 10 to 12, inclusive, are technical amendments which relate to the correction of cross-referenced inaccuracies within the Bill. They do not give rise to any policy change.
Amendment agreed to.
I move amendment No. 2:
In page 28, line 25, to delete “section 139ZLA(5)” and substitute “section 139ZLA(6)”.
Amendment agreed to.
I move amendment No. 3:
In page 29, line 1, to delete “section 139ZLA(5)” and substitute “section 139ZLA(6)”.
Amendment agreed to.
Amendments Nos. 4 and 5 are related and may be discussed together.
I move amendment No. 4:
In page 38, between lines 9 and 10, to insert the following:
“(3A) A recognised trade union who applies for vetted research status under Article 40(8), shall be deemed to be an application under subsection (1) pursuant to a public interest mission recognised by a Member State under Article 2(1), of Directive (EU) 2019/790.”.
The Minister of State and I spoke at length on this point on Committee Stage so I appreciate that, in the words of Yogi Berra, "It's déjà vu all over again". However, these are important points. They are certainly things we feel very strongly about and I wanted to use my time to discuss them.
Article 40(8) of the EU Digital Services Act provides for the digital services co-ordinator to establish and grant researchers the status of vetted researchers for very specific research. The criteria for those who are to be considered for approval as vetted researchers are laid down in paragraphs (a) to (g) of Article 40(8). I have tabled this amendment to ensure that applications from a recognised trade union or an NGO for approval as a vetted researcher will be considered. This should be facilitated under Article 2.1 of Directive (EU) 2019/790 which relates to research organisations and entities, the primary goal of which is to conduct scientific research or to carry out educational activities involving the conduct of scientific research pursuant to a public interest mission recognised by a member state. I feel that the directive is not clear enough in this regard. It might be the case that it is implied - I know that was the conversation we had - but I would be grateful for clarity and for that to be put on the Dáil record.
I do not want to put words in anyone’s mouth, and certainly not in the Minister of State’s mouth, but I think there was a degree of agreement between us that it would not be right to exclude trade unions and other vital NGOs. On that basis, I have proposed these amendments. I just have a fear. I know people will say that given my background, I probably would say this anyway, but I am saying it because it is true. I really feel that the trade union movement has a very important role to occupy in this space. I am very conscious of anything that might, however unintentionally, exclude them from that. That is why I have tabled this amendment again.
I thank Deputy O’Reilly. We had a very good discussion. She is absolutely not putting words in my mouth. I certainly would not wish to inadvertently exclude a body from being able to apply for vetted researcher status.
Following our discussion on Committee Stage, I have reviewed the Bill. On foot of the review I undertook in light of our discussion, I am again satisfied that the Bill does not have the effect of excluding any specific researchers from making an application for vetted researcher status. What the Bill does is set out the steps for that vetted researcher application status.
The granting to the applicant of a designation as a vetted researcher depends on them meeting the set of conditions that is provided for already in the digital services regulation. We do not have the scope to amend those conditions. The EU regulation has a direct effect in this regard. The digital services co-ordinator in each member state will have to use the same set of conditions in assessing whether an applicant is to be designated as a vetted researcher. Therefore, it cannot be the case that a researcher can meet the conditions for vetted researcher status in one member state but not in another. However, there is nothing in the EU regulation that would automatically preclude researchers affiliated with trade unions or a non-governmental organisation, to which the next amendment refers, from being designated as vetted researchers. Such researchers are eligible if they demonstrate that they satisfy the conditions set out in the digital services regulation. Again, I want to emphasise to Deputy O'Reilly that we do not want to inadvertently exclude a body from being able to apply for vetted researcher status. Having read the Bill again following our discussion last week, I am confident that will not happen.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 38, between lines 9 and 10, to insert the following:
“(3A) A Non-Government Organisation who applies for vetted research status under Article 40(8), shall be deemed to be an application under subsection (1) pursuant to a public interest mission recognised by a Member State under Article 2(1), of Directive (EU) 2019/790.”.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 8, inclusive, are related and may be discussed together.
I move amendment No. 6:
In page 40, between lines 7 and 8, to insert the following:
“(2A) The Commission shall ensure the status as a trusted flagger is not awarded to an entity which is partisan and seeks the status as a trusted flagger as means of controlling or influencing content.”.
The role of trusted flagger is incredibly important. To me, it is central to this legislation. At its core, it is a matter of ensuring we have a safe and predictable online environment, although sometimes I go online and I wonder whether it is possible to make it safe and predictable. We live in hope. That is at the heart of this. These roles will have an impact on freedom of expression. On Committee Stage, we discussed the potential issues arising from this. While people obviously have a constitutional right to freely express their convictions and opinions, it is a qualified right. Under the Constitution, that right can be limited in the interests of public order and morality.
The point I wish to make is that there is a need to ensure entities with a partisan agenda, an agenda which is intent on shaping or controlling content to suit their own agenda and their own needs, are not permitted. We want a space where people can connect online, where ideas can be shared and where people can engage in robust debate, which can sometimes be a euphemism for something else but I genuinely mean robust debate. It is important this is done in a way which ensures safety and proper safeguards against disinformation. My fear is that all of this could be undone if vested interests manage to obtain the position of trusted flagger to go about shaping the online space in a negative manner to suit their own agenda. Effectively, we are allowing or facilitating people and giving them the power to edit the Internet. That is pretty much where this is. Therefore, that role is very important.
I spoke about this at length. There are entities in this State which on the face of it might be very well respected, might even have the title institute or something very grand like that, but have a very clear agenda. While they might tick all of the boxes on one level, they will use the position of trusted flagger to further that agenda. I will not name any entities here but we know who they are. They use every opportunity and every tool at their disposal. If they are to become trusted flaggers, my concern is they will use that in a way that is not conducive to that flourishing online space, that they will actually use it to shut down the activities of those they disagree with, and that they will use their status as trusted flagger to police in an aggressive way other people's right to self-expression. The amendments I have tabled on trusted flaggers have a theme and it is one of being perhaps overly cautious. I do not think so. We would be right to be cautious with this legislation. It is huge and very important, and for me the status of trusted flagger is one which is absolutely and definitely deserving of the highest status, but we need to be alive to the fact that once an entity is granted the status of trusted flagger, we are conferring huge powers on it.
I will also speak to amendment No. 7 as we need to have the details of everything the trusted flaggers are doing and have those collected and published. We need to be aware of what they are doing and that needs to be in the public domain. We need to have scrutiny of that. That is to ensure the intention is not abused. That is not to create an additional burden for anyone but is to ensure the intention of this legislation is substantially delivered upon. I know we had a fairly extensive debate about this on Committee Stage but, again, I would welcome the Minister of State's views on the issues raised by these amendments.
I have absolutely no illusions as to the role of trusted flaggers here. Starting with amendment No. 6, the providers of online services are obliged to prioritise notices submitted by trusted flaggers about the presence on their service of specific content or information the trusted flagger considers to be illegal content. It is important, and we had this discussion on Committee Stage, that illegal content is the focus of this Bill and not what might be seen as objectionable. The priority channel for trusted flaggers, and I emphasise this, does not allow trusted flaggers to require its provider to automatically remove content. It means the provider must give priority to the reviewing of notices submitted by trusted flaggers over other notices submitted to it.
The Bill does not provide for Coimisiún na Meán to apply specific criteria for determining who may or may not be awarded trusted flagger status. This is because such criteria are defined in the digital services regulation, and whether an applicant is or is not granted a designation as trusted flagger is dependent on them meeting the set of conditions as are defined in the digital services regulation. We do not have scope to amend this set of conditions. The digital services co-ordinator in each member state has to use the same set of conditions in assessing whether an applicant is to be designated as a trusted flagger. Trusted flaggers will not be the arbitrator of illegal content. It is the responsibility of the provider to make a decision as to whether flagged content is illegal.
On amendment No. 7, and I fully appreciate the Deputy's concerns around transparency, the Digital Services Act, DSA, provides that this type of information will be made available. Trusted flaggers will be required to make an annual return of their activities which will have to be published and be available for people to see.
On amendment No. 8, the digital services regulation already provides that the digital services co-ordinator, in this case Coimisiún na Meán, can open an investigation into a trusted flagger, either on its own initiative or based on information from third parties, including online providers themselves. I am absolutely with the Deputy on the need for transparency and accountability with trusted flaggers. It is provided for within the regulation, and I think in a robust manner. It is also provided for on a pan-European basis.
Amendment put and declared lost.
I move amendment No. 7:
In page 40, between lines 16 and 17, to insert the following:
“(6) The Commission shall establish a database of trusted flaggers, including aggregate details of complaints, including unsuccessful complaints, to be published publicly on a yearly basis.”.
Amendment put and declared lost.
I move amendment No. 8:
In page 40, between lines 34 and 35, to insert the following:
“(3) The Commission shall establish a mechanism for third parties to lodge complaints regarding the actions and workings of trusted flaggers.”.
Amendment put and declared lost.
I move amendment No. 9:
In page 45, between lines 3 and 4, to insert the following:
“(3) The Commission shall ensure that fees for different classes of application or review request are not prohibitive.”.
This is a fairly straightforward amendment. I would probably say that all of mine are. We had this discussion on Committee Stage. Nobody wants to see a situation where people who have the ability to be vetted researchers or trusted flaggers cannot do so because the cost is prohibitive. The Minister of State gave me some assurances on Committee Stage and I would appreciate those to be put on the record of the House. Again, this is around ensuring the legislation is every bit as good as it can be. Any fees charged should only be to barely cover administration costs. I have concerns about any barrier that is put in place for these people. They are being entrusted with a very serious job. I understand the trusted flaggers will not be the arbiter of illegal content, as the Minister of State has said. I get that but it is still a position of power and is an important one. Ensuring a broad range is very important and if the barrier is high - I am not suggesting the Minister of State will place the barrier necessarily high but the fact is subsequent Ministers may choose to do that - it is favouring those with deep pockets and excluding those who perhaps have if not a huge contribution, then an important contribution to make but perhaps do not have the shillings to be able to get over the bar of the fees. Again, the Minister of State gave some assurances on Committee Stage. I would like to hear those assurances again and perhaps he might elaborate on them.
I absolutely recommit to those assurances. I want people to be able to use this legislation and the intention of the fee is that Coimisiún na Meán could specify a fee for applications or review requests for a trusted flagger, vetted researchers or out-of-court dispute settlement bodies. The provision is intended to enable an coimisiún to set nominal fees if it considers it necessary to cover costs for applications or review requests. It is absolutely not intended to be profit generating and certainly not to be a disincentive to any applicants. It is not a fee which will be unmanageable for organisations or researchers. The intention is that Coimisiún na Meán will act fairly in setting these fees and that intention is implied throughout the fee-making power in this Bill. I want to very much emphasise the intention that the fee will not be prohibitive as applied. I want to say when I will be engaging with Coimisiún na Meán around the setting of these regulations that this fee is accessible and not prohibitive to people exercising their rights under this very important legislation.
Amendment put and declared lost.
I move amendment No. 10:
In page 60, line 38, to delete “section 60” and substitute “section 62”.
Amendment agreed to.
I move amendment No. 11:
In page 70, line 15, to delete “section 53(5)” and substitute “section 53(6)”.
Amendment agreed to.
I move amendment No. 12:
In page 70, line 25, to delete “section 53(5)” and substitute “section 53(6)”.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
May I say a few words, a Cheann Comhairle?
If you have to.
I put on record my thanks to Deputy O'Reilly and her staff for their very constructive engagement. I especially thank the officials in my Department who have done extraordinary work over a very short period, including right through the Christmas break, to get this legislation ready. We will assume a very important role on 17 February as a consequence of this legislation. I acknowledge everybody's contributions.
I thank the Minister of State very much for his alacrity and clarity, as always.
Noted.
Question put and agreed to.
Cuirfear an Bille chun an tSeanaid anois. Go raibh maith agaibh go léir as ucht bhur gcomhoibriú ar an ábhar tábhachtach sin