Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.
Digital Services Bill 2023: Committee and Remaining Stages
Section 1 agreed to.
SECTION 2
I move amendment No. 1:
In page 7, between lines 22 and 23, to insert the following:
“ “An Coimisiún” means Coimisiún na Meán;”.
Amendments Nos. 1 and 2 seek to add the clarifying definitions that “An Coimisiún” and "Commission" refer to "Coimisiún na Meán” for the first Part of the Bill.
Up until Part 3, the phrase "the Commission" refers to this, yet after that, the phrase "the Commission" refers to the Competition and Consumer Protection Commission, CCPC, and the phrase "an Coimisiún" is instead used to refer to Coimisiún na Meán. I am aware the meaning of the phrase "the Commission" is set out in section 6 of the principal Act, namely, the Broadcasting Act. However, would it not be more consistent to simply use an coimisiún throughout the Bill to refer to Coimisiún na Meán? It is not clear why it is desirable to have a single phrase refer to multiple different bodies within the Bill when there is a clear alternative reference that would avoid confusion. Surely the phrase "an Coimisiún", if used throughout the Bill, would better avoid any conflation of the CCPC, the European Commission and Coimisiún na Meán.
I also note that in section 6 of the principal Act the official title of the media commission is in fact the Irish title, namely, Coimisiún na Meán. It is not clear, therefore, why "an coimisiún" is not an acceptable and indeed better reference to the official title.
I thank the Civil Engagement Group for putting forward this amendment. It is grouped with No. 2. I cannot accept them as both relate to amendments associated with references to the name of the Digital Services Co-ordinator in Ireland, which is Coimisiún na Meán. This new body was established in 2023 under the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media through the amendment of the Broadcasting Act 2009. Amendment No. 1 proposes that the definition be included that "an Coimisiún" means Coimisiún na Meán. However, the term "an Coimisiún" is not used in the Bill and so such a definition would not serve a purpose.
Amendment No. 2 proposes text be inserted to state that "coimisiún" means Coimisiún na Meán. In the Bill, Coimisiún na Meán is being provided with extended powers to implement the digital services regulation, DSR. These powers are being conferred through amendment of the Broadcasting Act 2009, as amended in 2022. The Broadcasting Act 2009, as amended in 2022, provides in section 6 of Part 2 that the body "which shall be known as Coimisiún na Meán [will be] (in this Act referred to as the "Commission")". Thus, the definition the Senator is proposing already exists in the Broadcasting Act 2009, as amended. The Bill we are discussing is technical and needs to be read in conjunction with the Broadcasting Act, as amended, and the DSR. However, the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media is currently working towards ensuring the Broadcasting Act only refers to Coimisiún na Meán in the Irish language and that will also deal with both amendments.
I will withdraw the amendment but reserve the right to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Section 2 agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill."
The section grants sweeping powers to the Minister to make "regulations prescribing any matter or thing which is referred to in this Act". The provision is unduly broad and does not put in place adequate guardrails that would limit ministerial discretion in respect of such regulations. I accept further regulation may well be needed and would indeed be welcome on a number of issues. Our later amendments recommend the Minister conduct a review of various elements of the Bill with a view to potentially regulating further on certain matters and, therefore, I am aware of, and supportive of, the idea such powers of regulation should be available to the Minister. However, best practice in most legislation is to grant regulatory powers to the Minister under certain sections. For example, in section 47 on the disclosure of data, there is a provision that the Minister "may prescribe suitable and specific measures for the processing of special categories of personal data under this section".
This is a section-bound provision which grants specific powers of regulation on a specific issue and under a specific section. It is not clear then why regulatory powers need to be granted to the Minister in such a broad and unfettered way in section 3 rather than on a section-by-section basis, as is the norm. As legislators, it is important when we approve a Bill to leave the House that we do so knowing what effect of that legislation may be as much as possible. Such sweeping and non-specific regulatory powers undermine the legislative principle. For this reason we oppose section 3.
Before I ask the Minister of State to respond, I welcome the senior citizens group from Galway who are guests of my colleague, Deputy Eamon Ó Cuív. They are very welcome and I hope they enjoy these deliberations.
It is always good as a Mayo person to welcome Galway people to anywhere, except MacHale Park.
I want to say to in advance that I am not going to be accepting any amendments today. However, I thank the Civil Engagement Group members for their engagement with the Bill. It might be useful, and I can set this meeting up, for them to meet the officials to get a full understanding of how we have come to this Bill. We can set this up in the next week ahead of the preparation of regulations which will follow. I just wanted to put that on the record of the House.
Section 3 provides for the ability to prescribe regulations in respect of the functioning of the Bill. Section 3 is necessary to ensure that where issues arise in terms of the effectiveness or efficiency of the implementation of the digital services regulation by Coimisiún na Meán or the Competition and Consumer Protection Commission, the Minister can respond quickly to introduce necessary procedural reforms. For example, some of the procedural steps set out in the Digital Services Bill may require revision, depending on how the European board for digital services engages with digital service co-ordinators of establishment in practice with regard to cross-border collaboration activities and joint investigations. This will become fully clear after the board is formed and only then, but if revisions of procedure are required, the Minister of the day will need to be able to introduce the necessary reforms in a timely manner.
Section 3 is, however, not intended to facilitate any policy change, and all such regulations would be laid before each House of the Oireachtas, including the Seanad, within 21 days. This approach provides the Oireachtas, including the Seanad, with full and effective oversight. It is the standard approach in such legislation.
Question put and agreed to.
Sections 4 to 6, inclusive, agreed to.
NEW SECTION
I move amendment No. 2:
In page 9, between lines 3 and 4, to insert the following:
“Definition
7. In this Part, “Commission” means Coimisiún na Meán.”.
Amendment put and declared lost.
Sections 7 to 13, inclusive, agreed to.
Amendments Nos. 3 to 7, inclusive, and 13, provide for reports to be compiled on various matters relating to online services and to activities that are relevant to digital service providers. The matters to be examined in these reports are wide-ranging, and would give rise to substantial volumes of work in respect of research and analysis on a significant scale not currently provided for, giving rise to additional costs for the relevant State body. Additionally, amendments Nos. 3 to 5, inclusive, and 13 provide for these reports to be compiled on an annual basis, following the initial report giving rise to significant costs of the relevant State body on a cumulative basis. These amendments must be ruled out of order in accordance with Standing Order 41, as they have potential to impose a charge on Revenue.
Amendments Nos. 3 and 4 not moved.
SECTION 14
Question proposed: "That section 14 stand part of the Bill."
It is unusual to have reports ruled out of order on the grounds of posing a cost to the State. Over the years, we have tabled many amendments on introducing reports, including ones that have actually come to fruition and been carried out by Departments, that were not ruled out of order. It has always been a positive addition to much of the legislation that has passed through the House. Regarding the amendment on algorithmic safety, we are aware of the excellent provisions within the digital services regulation which require annual risk assessments and independent audits of algorithmic practices by large online platforms, and the human rights impacts of same, to be carried out at the expense of the platforms themselves.
I note that as part of these risk assessments, platforms must examine the design of their recommended systems and other algorithmic systems and all data-related practices which includes profiling and similar activities. This is welcome. The assessments must also consider any foreseeable risks to human rights, civic and electoral freedoms and the public health of children, stemming from the practices. This level of scrutiny is welcome, in particular the requirements for the independent audits under Article 37. We saw this section being improved by these risk assessments and independent audit reports under Articles 34 and 37 of the regulations being collated by the Minister in order to form the basis of a summary analysis of safety in terms of algorithms in the State. This would have enabled us as legislators to have not just a clear picture of practices by each platform, but to also have a more holistic picture of the practices of all online platforms active in the State. Despite the amendment being ruled out of order, we have the report in this regard and I would like to hear from the Minister of State on the whole area and what we were trying to achieve in ensuring that we can actually map what those assessments look like, especially in terms of human rights and electoral safety.
I would like to note that it was precisely this kind of provision that we advocated for during the debate on the online safety legislation. At the time, we had amendments which called for a report on algorithm safety in the State. This would have served a purpose similar to that served by the risk assessments and the reports required by regulation. We also sought reports on the impact of the practices of online platforms on the public health of children. At that time, we were eager to see recognition of the notion of algorithmic harm. This is the idea that is not just user- generated content that can create harm in online space, rather the practices themselves and the policies of the platforms. This idea of harm due to algorithms is recognised within the digital services regulation and we recognise that. However, we would like to be able to continue to evaluate how they are implemented in practice and learn from them.
I share the Senator's concerns about algorithmic safety. The European Centre for Algorithmic Transparency deals with this issue. This organisation will be able to work and use research from the risk assessments and audits carried out through the Digital Services Act. However, I will also bring the Senator's proposal to the attention of both the digital services commissioner, John Evans, and the online safety commissioner, Niamh Hodnett, under Coimisiún na Meán . I will ask them to engage with the Senator on that proposal. I think there is merit to doing something on it. It is a bit overly prescriptive to put something that detailed into legislation, but I certainly believe and share the Senator's view that it needs to be highlighted. I will make that proposal to Coimisiún na Meán.
I appreciate that and I appreciate the Minister of State's comments on the last section about engagement. It did not lodge in my head at first when I came in that we have all remaining Stages today so I do appreciate any further conversation we can have on it. I also want to note the accessibility of online platforms in relation to the UNCPRD, which is also similar in terms of the last amendment, but very focused. If that can inform some of those conversations as well that would be helpful.
Question put and agreed to.
Amendments Nos. 5 to 7, inclusive, have been ruled out of order.
Amendments Nos. 5 to 7, inclusive, not moved.
Sections 15 to 20, inclusive, agreed to.
SECTION 21
Amendments Nos. 8 to 12, inclusive, 21, 43, 52 and 53 are related and may be discussed together. I call Senator Ruane.
I move amendment No. 8:
In page 18, line 6, to delete “may” and substitute “shall”.
Amendments Nos. 8 and 9 seek to strengthen wording in the Bill by specifying that an authorised officer shall rather than may impose a daily penalty on an online platform for an ongoing contravention of the regulation. In order for the regulation to constitute a meaningful deterrent to harmful behaviour by online platforms, it seems important that a company should know with certainty that it will face consequences for its actions. The imposition of a daily penalty for an ongoing contravention should be a standard enforcement pillar of this Bill.
Amendment No. 9 is more targeted in that it specifies the use of the word “shall” in the cases of providers of very large online platforms or very large search engines. This would allow some discretion for the authorised officer to choose not to impose a daily penalty on smaller platforms, while making the daily penalty obligatory for providers of very large online platforms. This is in keeping with the spirit and letter of the digital services regulation, which rightly imposes much more onerous duties on very large online platforms, given the seriousness and widespread harm that can result to millions of users when they do commit contraventions. The idea that a very large online platform that hosts millions of users could commit a contravention on an ongoing basis and not be fined on a daily basis for that contravention is unacceptable. Again, to revisit the points I raised earlier regarding the harm that can be inflicted on children due to the manipulative profiling and targeting practices of platforms, the idea that a platform could be found to be in breach of those safeguards relating to children and not be fined on a daily basis is unacceptable.
Amendment No. 10 is related and specifies that when a daily penalty is imposed and authorised, the officer shall give notice in writing about the penalty. It is unclear why the delivery of a notice in writing of the daily penalty would be optional. Clearly, it is best practice to communicate every single stage of the disciplinary and enforcement process to the platform. Therefore, a notice in writing of a daily penalty should be obligatory.
Amendment No. 11 seeks to insert stronger wording and specifies that the commission shall require an intermediary service provider to take interim measures. I note that there was an error in the transcription of this amendment. It should refer to line 35, not line 12. The test provided under subsection (1) is already very strong. It specifies that only if there is evidence that a contravention has taken place, that the contravention is ongoing, and there is a risk of serious harm from the contravention that the commission may then instruct the provider to take interim measures to end that contravention. The threshold for action under this section is already extremely high. Therefore, it is unclear why after that threshold is met, there must also be discretion in ordering interim measures. It is unclear why an ongoing harmful contravention would ever be allowed to continue without imposing interim measures. This amendment seeks that once the very onerous test under subsection (1) is met, that measures shall then be ordered.
Amendment No. 12 seeks a similar strengthening of wording. It again specifies that interim measures shall be applied in the case of very large online platforms, but leaves discretion for the commission not to apply interim measures in the cases of smaller platforms. I am aware that this section deals with intermediary service providers. However, I am concerned that some of the decisions in relation to intermediary service providers may still be linked to very large online platforms. If, for example, an Internet service provider is committing an ongoing contravention but is a provider through which users access very large online platforms, how are the rules applied? In amendment No. 12, we are seeking to clarify that when a contravention by a intermediary provider may relate to a very large online platform, the interim measures shall be applied.
Amendment No. 21 seeks stronger wording whereby an coimisiún “shall” impose a daily penalty when a provider fails to comply with a notice to end a contravention. This is particularly serious because it refers to a situation that already will have escalated past several disciplinary stages. Thus, this section refers to a scenario in which not only has a contravention been identified and a notice to end that contravention has already been issued to the provider, but the provider is continuing to ignore that notice and is failing to comply. This would not be a matter of a small oversight by a provider but a sustained and flagrant flouting of the rules. In this scenario, quite a high threshold will have already been passed and there already will be evidence of a sustained contravention and an unwillingness to comply. In this scenario, it should be obligatory for an coimisiún to impose a daily penalty. It is difficult to imagine a scenario where such a sustained lack of regard for the rules would not warrant that daily penalty. It is for this reason that we recommend the use of the stronger term “shall” instead of “may”.
Amendments Nos. 43, 52 and 53 are simple enough. They propose to replace “may” with “shall”.
I thank the Senator. I oppose amendment No. 8, which is grouped with amendments Nos. 9 to 12, inclusive, 21, 43, 52 and 53. All those amendments relate to proposals to make certain actions obligatory for Coimisiún na Meán or the Consumer and Competition Protection Commission, CCPC.
The Digital Services Bill provides that during an investigation into a suspected contravention, authorised officers of Coimisiún na Meán and the CCPC may impose a daily penalty payment on a person in order to enforce an obligation imposed on that person by the exercise of the investigatory powers of the authorised officers. Amendment No. 8 is superseded by amendment No. 9, which proposes that the Bill be changed to oblige Coimisiún na Meán to impose a daily payment where the person in non-compliance with their obligations is a very large online platform or search engine. However, Coimisiún na Meán needs to be able to operate with sufficient flexibility to make decisions that are appropriate to the specific case at hand. For example, the regulators may consider it more prudent to not use the option to impose a daily penalty payment if there are other options they can pursue to finalise the investigation.
Amendment No. 10 proposes that the Bill be amended in order that where it appears to an authorised officer of Coimisiún na Meán that is necessary to impose a daily penalty payment on a person, then the authorised officer must issue a notice to the person setting out their obligations and informing them that failure to comply could lead to the imposition of a daily penalty payment. However, as has already been outlined, while it may seem necessary to impose a daily penalty payment to achieve compliance with a person’s obligations, as before, there may be other investigatory options open to the authorised officer that could result in a sufficient outcome to progress the investigation. Penalties for non-compliant behaviour can be applied at the end of an investigation and it may be more appropriate to do so in some cases.
Amendment No. 21 proposes that the Bill be amended in order that where a provider has been served with a notice to end a contravention that is an infringement of the digital services regulation, Coimisiún na Meán must impose a daily penalty payment. The Bill as it stands makes provision that Coimisiún na Meán “may” impose a daily penalty payment. This is set out as a tool available to the regulator in the event that the provider does not comply with the notice to end a contravention. However, amendment No. 21 would have the effect of obliging Coimisiún na Meán to impose a penalty payment on a provider to which it had issued a notice to end a contravention. The provider could have complied with a notice to end the contravention but were this amendment to be accepted, Coimisiún na Meán would still be obliged to impose a daily penalty payment. This is not in keeping with the rules of the digital services regulation in terms of penalties, nor would it be an appropriate practice for the regulator.
The Bill currently provides that if during an investigation it appears to Coimisiún na Meán or to the CCPC that a provider is committing a contravention of the digital services regulation and the suspected contravention gives rise to a risk of a serious harm occurring, then Coimisiún na Meán or the CCPC may issue a notice to a provider to take interim measures.
Amendment No. 12 proposes a change to the Bill that would make it obligatory for Coimisiún na Meán to issue such a notice if the provider under investigation is a VLOP or VLOSE.
Amendment No. 43 proposes a change to the Bill that would make it obligatory for the CCPC to issue such a notice, irrespective of whether the provider under question is a VLOP or a VLOSE.
Amendment No. 52 has the effect of making it obligatory for the CCPC to issue a notice to end a contravention in the case where it has been confirmed that an infringement of Articles 30 to 32, inclusive, of the regulation has occurred and is continuing, rather than it being an option for the CCPC to issue such a notice to end the contravention.
Amendment No. 53 proposes that when a provider has not complied with a notice to end a contravention and the contravention is continuing, that it be mandatory for the CCPC to issue a notice requesting the management body of the provider to propose the steps required to end the contravention. What we do not want is to inadvertently tie the hands of regulators. If the aforementioned amendments were to be introduced, I feel there is the potential for this to happen. I know that is not the intention, but we have to be aware of that risk.
The Digital Services Bill empowers Coimisiún na Meán and the CCPC to operate with a range of enforcement tools, as set out in the regulation. The commissions need to be able to apply these in the most effective ways, and the tools utilised in one case may not be appropriate for another. We do not want to force Coimisiún na Meán or the CCPC to take actions that do not allow them to make the best decisions and take the most effective approach to conclude investigations, make decisions, stop infringements and impose sanctions for those breaches. On the basis of what I have outlined, I oppose the amendments.
Amendment put and declared lost.
I take this opportunity to welcome members of the active retirement group from Blackrock in County Dublin. They are guests of the Minister of State, Deputy Jennifer Carroll MacNeill. I hope they enjoy the rest of their day and their tour of Leinster House.
I also welcome Mr. Fintan Cooney from Castlebellingham, County Louth, who is doing an exceptional job interning with Senator McGreehan this week. I wish him well in his future as well.
I move amendment No. 9:
In page 18, line 6, to delete “may” and substitute “shall, in the case of providers of VLOPs or VLOSEs, and may, in the case of other providers”.
Amendment put and declared lost.
I move amendment No. 10:
In page 18, line 12, to delete “may” and substitute “shall”.
Amendment put and declared lost.
I move amendment No.11:
In page 19, line 12, to delete “may” and substitute “shall”.
Amendment put and declared lost.
I move amendment No. 12:
In page 19, line 35, to delete “may” and substitute “shall, in the case of providers of VLOPs or VLOSEs, and may, in the case of other providers”.
Amendment put and declared lost.
Section 21 agreed to.
Section 22 agreed to.
Amendment No. 13 has been ruled out of order as it is a potential charge on the revenue.
Sections 23 to 27, inclusive, agreed to.
SECTION 28
Amendments Nos. 14 to 19, inclusive, and amendments Nos. 45 to 50, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No.14:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, if An Coimisiún can reasonably conclude that the decision ensures compliance with the Digital Services Regulation”.
Amendments Nos. 14 and 15 propose a reasonable belief test which must be met before an coimisiún adopts its own decision instead of opening a new investigation. Amendment No. 14 says that an coimisiún must be able to reasonably conclude that its original decision ensures compliance with the regulation, while amendment No. 15 would require an coimisiún to reasonably conclude that a new investigation would not result in improved compliance.
Amendments Nos. 16 and 17 propose imposing stronger requirements in this respect. These amendments propose that in order for an coimisiún to disregard a disagreement from the European Commission and to decide not to reopen an investigation and then to adopt its original decision as the final decision, that it would first have to publish a written rationale which reasonably demonstrates either that the original decision ensures compliance with the regulation or that a new investigation would not improve compliance.
Amendments Nos. 18 and 19 propose the same mechanism of a written rationale, as is proposed in amendments Nos.16 and 17, but in this case, the requirement for a written rationale would only apply to decisions that relate to providers of VLOPs or VLOSEs. This, again, would be in keeping with the spirit of the regulation, and ensure that very large platforms are subject to a much higher level of scrutiny.
Amendments Nos. 45 to 50 mirror amendments Nos. 14 to 19, inclusive. The difference is that amendments Nos. 14 to 15 apply to decisions of the CCPC rather than an coimisiún where those decisions relate to the Digital Services Act. Again, these amendments seek to impose a test that must be met by the commission before it can set aside a disagreement from the European Commission and choose not to reopen an investigation in contravention of the digital services regulation.
The reason amendments Nos. 14 to 19, inclusive, and 45 to 50, inclusive, are proposed and were raised in our remarks about amendment No. 13 also, is it is regrettable that Ireland's DPC has acquired an international reputation as a soft-touch regulator. It is further regrettable that Europe has had to routinely intervene to instruct Ireland to take stronger decisions and impose higher sanctions. It is crucial that we avoid a repeat of such a scenario with an coimisiún and the CCPC. Amendments Nos. 14 to 19, inclusive, would ensure that an coimisiún would have to justify itself in a tangible way and meet a specific test before it disregards any opinions or disagreements with its decisions that are expressed at a European level by the board or the commission. This would safeguard against any systematic under-regulation and would ensure that an coimisiún would have to meet the high regulatory standards of the regulation, as expected by the other European authorities. Any failure to do so would have to be justified and meet this clear test. For this reason, we urge the Minister to consider accepting some version of this test, as set out in our amendments Nos. 14 to 19, inclusive, and 45 to 50, inclusive.
Amendment No. 14 is grouped with amendments Nos. 15 to 19, inclusive, and 45 to 50, inclusive. As all of these amendments relate to the making of a final decision either by Coimisiún na Meán or the CPCC following a request for a matter to be reviewed, as received from the European Commission under Article 59(3) of the digital services regulation. As it stands, the Bill provides for a review of the matter and that Coimisiún na Meán may adopt its initial decision as its final decision. It may initiate a new investigation or it may take any other necessary steps to ensure compliance with the DSR.
Amendments Nos. 14 to 19, inclusive, propose that provisions be included so that Coimisiún na Meán can adopt its initial decision as its final decision under certain conditions. Amendment No. 14 proposes the condition that Coimisiún na Meán can reasonably conclude that the decision ensures compliance with the DSR. It supersedes amendments Nos. 16 and 18. It proposes a condition that where a decision relates to VLOPs or VLOSEs, Coimisiún na Meán can publish a written rationale which reasonably demonstrates that the decision ensures compliance with the DSR. For Coimisiún na Meán to adopt its initial decision as its final decision, it must satisfy itself that in finalising its decision, all necessary investigatory and enforcement measures required to ensure compliance with the DSR has been taken and that Coimisiún na Meán has taken utmost account of the views and requests for review by the European Commission. These requirements flow directly from Article 59(3) of the DSR and therefore there is no need to reproduce them in this Bill. If Coimisiún na Meán is satisfied that no further action is required on its part to meet the requirement of Article 59(3), it may adopt its initial decision as its final decision.
Amendment No. 15 proposes the condition that Coimisiún na Meán may adopt its initial decision as its final decision if it can reasonably conclude that a new investigation would not result in improved compliance with the DSR. Again, I cannot accept this amendment. Article 59(3) imposes obligations on Coimisiún na Meán. It must be satisfied that it has met all of these obligations before it can adopt the initial decision as a final decision. It cannot be limited to the specific condition as proposed in amendment No. 15.
Amendment No. 19 supersedes amendment No. 17. Amendment No. 19 proposes a condition in the case where the decision relates to VLOPs or VLOSEs. Coimisiún na Meán can publish a written rationale that reasonably demonstrates that a new investigation would not strengthen compliance with the DSR. Again, I cannot accept this amendment because Article 59.3 imposes obligations on Coimisiún na Meán. It must be satisfied that it has met all of these obligations before it can adopt the initial decision as a final decision. It cannot be limited to the specific condition as proposed in amendment No. 19.
Article 59(3) has direct effect. It requires Coimisiún na Meán to communicate to the European Commission the measures it has taken in response to a request from the European Commission to review a matter. In the case that Coimisiún na Meán adopts or intends to adopt its initial decision as its final decision then the type of information it is likely to include in this communication will relate to the methodology and finding of its review, its consideration of the European Commission's views, how it has demonstrated compliance with the DSR, the reasons that it did not take further measures, including opening a new investigation, and why it is maintaining its initial decision as its final decision. As such, the written rationale called for under amendments Nos. 18 and 19 are already provided for by Article 59(3) of the DSR, albeit that it is not limited to the case of decisions related to the VLOPs or VLOSEs.
Amendments Nos. 45 to 50, inclusive, mirror amendments Nos. 14 to 19, inclusive, as discussed by the Senator, except that they reply to the CCPC. I oppose these amendments also for the same reasons as provided for in the case of Coimisiún na Meán.
Amendment put and declared lost.
I move amendment No. 15:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, if An Coimisiún can reasonably conclude that a new investigation would not result in improved compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 16:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, if An Coimisiún can publish a written rationale which reasonably demonstrates that the decision ensures compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 17:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, if An Coimisiún can publish a written rationale which reasonably demonstrates that a new investigation would not strengthen compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 18:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, only if, where the decision relates to providers of VLOPs or VLOSEs, An Coimisiún can publish a written rationale which reasonably demonstrates that the decision ensures compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 19:
In page 25, line 8, after “decision” where it secondly occurs to insert the following:
“, only if, where the decision relates to providers of VLOPs or VLOSEs, An Coimisiún can publish a written rationale which reasonably demonstrates that a new investigation would not strengthen compliance with the Digital Services Regulation”.
Amendment put and declared lost.
Section 28 agreed to.
Sections 29 to 31, inclusive, agreed to.
SECTION 32
Amendments Nos. 20 and 51 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 20:
In page 27, between lines 33 and 34, to insert the following:
“(vi) by the insertion of the following paragraph after paragraph (o):
“(p) any previous determinations by other Member State Digital Services Coordinators or other Member State competent authorities that are relevant to the amount of the sanction.”,”.
Amendment No. 20 seeks to add an additional criterion to which an coimisiún must have regard when deciding the amount of financial sanction to be imposed for relevant contravention. The additional criterion we seek to add is "any previous determinations by other Member State Digital Services Coordinators". It is very welcome to see such a robust and comprehensive list of factors that are considered in the determination of a sanction, including the amount of financial gain for the contravention and other crucial matters.
It was also very welcome to see the Minister of State add during the Dáil debate a condition specifying that an coimisiún must have regard to any opinion offered by the European Commission in relation to the amount of the sanction. This was a welcome safeguard and one we would have also proposed had the Minister of State not introduced it. We would like to commend him in that regard.
The one small addition this amendment makes is to ask that an coimisiún also considers precedents set by other member states with regard to comparable decisions in order that were a similar contravention to be decided on by another competent authority previously in another member state, an coimisiún should note that precedent in terms of the amount of the sanction previously issued. This would avoid a scenario where, for example, a member state competent authority sets a positive precedent by setting a large sanction for a contravention only to have that strong precedent later undermined were an coimisiún to then issue a lower sanction. This section is already particularly strong, but it would be welcome for the Minister of State to consider an addition like this in terms of this last factor in deciding the amount of the sanction to be imposed under the Bill.
Amendment No. 51 seeks an identical provision, this time with regard to the decision of the CCPC where it relates to the digital services regulation. Once again, that commission would need to have regard to previous sanctions set by other member states when deciding the amount of the sanction for the contravention.
Amendment No. 20 is taken with amendment No. 51. These amendments mirror each other except they apply to Coimisiún na Meán and the CCPC, respectively.
In determining the amount of the sanction to be imposed, the Bill sets out that regulators must take account of the unique set of circumstances of a given investigation. This includes, for example, the nature and gravity of the contravention, the extent to which the provider co-operates with the regulator, the extent to which the contravention was contributed to by circumstances maybe beyond the control of the provider and the extent to which the provider took steps to mitigate the effect of those circumstances.
Coimisiún na Meán and the CCPC will have access to information with regard to decisions and sanction amounts imposed by other member states implementing the DSR. Without access to the finer detail of each investigation, however, that is not particularly informative. That is because of the uniqueness of each investigation under the DSR process. For example, how the provider co-operates during the investigation and the extent to which the contravention is related to the act of a third party will have significant bearing on the sanction amount determined.
Coimisiún na Meán and the CCPC should thus not be obliged to take information related to the amount of sanctions imposed for decisions taken in other member states, as amendments Nos. 20 and 51 propose. In those circumstances and with that context, I, therefore, oppose those amendments.
Amendment put and declared lost.
Section 32 agreed to.
Sections 33 to 36, inclusive, agreed to.
SECTION 37
I move amendment No. 21:
In page 29, line 30, to delete “may” and substitute “shall”.
Amendment put and declared lost.
Section 37 agreed to.
Amendment No. 22 has been ruled out of order due to a potential charge on the Revenue.
I will put on the record that this amendment only changes "shall" to "may". It makes a provision for a block order to be issued whenever the request is made rather than allowing the measure to me discretionary. I am not sure whether this amendment has accidentally ended up being ruled out of order because it is very like all the other amendments in terms of "may" and "shall". It is a language thing. I am just a bit curious as to how it ended up in there. It kind of feels like a mistake; now I know.
It was not a decision made by us. It was way above our pay grade.
Amendments Nos. 22 and 54 were both ruled out of order.
The amendments propose substituting the word "shall" in place of "may" in texts providing that Coimisiún na Meán and the Competition and Consumer Protection commission, respectively, may apply for a High Court order requiring action from a relevant provider in specified circumstances. Substituting the word "shall" for "may" removes any discretion in these circumstances and may result in increased legal proceedings in front of the High Court. Such proceedings come with legal costs and, as such, the amendments must be ruled out of order in accordance with Standing Order 41 at they have the potential to impose a charge on the Revenue.
That is a stretch. I will take it up.
Amendment No. 32 not moved.
Sections 38 to 40, inclusive, agreed to.
SECTION 41
Amendments Nos. 23 to 26, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 23:
In page 37, between lines 32 and 33, to insert the following:
“(1A) An accredited journalist or representative of a registered Non-Government Organisation who applies to An Coimisiún under Article 40(8) to be designated as a vetted researcher may be deemed to have met the designation conditions if they can reasonably demonstrate that their access to data as a vetted researcher would be in the public interest.”.
This amendment seeks to make accredited journalists and representatives of registered NGOs eligible for the status of vetted researcher if they can meet a clear test, which is to prove that their access to data as a vetted researcher would be in the public interest.
I have read the regulation and am aware of the strict definition of "vetted researcher" within the regulation text. There are clear conditions attached that require a person to be a member of an academic institution and so on. This is one of the few small criticisms I will make of the regulation. I highlighted that the codes of conduct for accessibility in the regulation should be compulsory. I also highlight that the eligibility for the status of vetted researcher should have been wider. When we think of the important role that journalists and whistleblowers have played in helping us to understand the abuses of these very large online platforms, we can look to the examples of Cambridge Analytica and similar cases, and it is disappointing that we do not seek to empower that role. I raise again the leaked documents in Australia that revealed Facebook executives talking about their ability to manipulate children to identify when they are feeling worthless. Without investigative journalism, we may never have uncovered any of these scandals. It is welcome that the regulation establishes a system of mandated data access and scrutiny but it is a shame that these powers of scrutiny have not been extended to journalists and, indeed, to civil society actors who also hold platforms to account for their practices.
I am aware that the Minister of State has said he will not accept the amendments and that this amendment in particular would contradict the wording of the regulation and the definition of "vetted researcher" that is out there. I think, however, it is important that we acknowledge a missed opportunity to allow journalists to scrutinise the data practices of large platforms. Indeed, this omission will only benefit large platforms and enable them to continue to conceal their bad practices. While academic scrutiny is important, journalistic scrutiny differs in one key way, which is that its aim is to uncover wrongdoing. Without that impetus to uncover wrongdoing, I fear the role of vetted researcher will not be as powerful as it could be.
I will briefly speak to amendments Nos. 24 and 25, which are Senator Malcolm Byrne's amendments. I support the first part of amendment No. 24 which seeks to grant an applicant for vetted researcher status a right of appeal in the event of being denied the status. This needs to be reasonable and in line with the other appeal mechanisms in the Bill. However, I have some concerns with the rest of amendment No. 24 and with amendment No. 25, which seeks to grant very large online platforms an equal right of appeal on a person's application to become a vetted researcher. In other words, very large platforms would be able to see an academic's application for vetted research status and submit an objection to that application. I feel that would be an inappropriate power to grant very large platforms and one which could be open to abuse. We can easily envision a scenario where platforms maintain a watchlist of academics who are critical of the practices of online platforms or who have previously published incriminating research in relation to those platforms. We could see platforms systematically trying to block the research applications of these academics, which would be completely at odds with the spirit and letter of the regulation. It provides for mandated data accessing scrutiny precisely because critical academics have the competencies and expertise to uncover bad practices by platforms where many others cannot due to the technical nature of these data practices. It would be highly inappropriate to grant platforms a way to block this scrutiny. That would be entirely at odds with the spirit of the regulation. Without academics, our understanding of these platforms would be far poorer.
Shoshana Zuboff, who wrote The Age of Surveillance Capitalism, and similar academics have advanced our understanding of the abuses of these platforms. It would be unacceptable to see a scenario where such academics could be shut out. I look forward to hearing Senator Byrne's reasoning for his amendments.
Amendment No. 26 simply strengthens the time that a vetted researcher or trusted flagger has to appeal the revocation of his or her status from 14 day to 28 days.
I am generally quite happy with the proposals for vetted researchers. I agree with Senator Ruane that it is important to get vetted researchers and that they get access. My concern is a more general one. If there is a desire to appeal against a decision of an coimisiún, the only way to do so is through a court challenge. I would prefer for there to be a quicker way. This may be something that could be determined by the regulations or the way in which an coimisiún works but under the legislation, where a vetted researcher applies for access to, let us say, a very large online platform, an coimisiún can make the decision to grant access or not. I feel there must be some form of middle way of appealing that decision, rather than a requirement for a court challenge against the legislation.
My sense is that if we are going to allow appeals for applicants for the status of vetted researcher, we also have to allow them for the platforms. If we allow somebody to apply for, and be granted, the status of vetted researcher, we must also allow a platform the chance to appeal the decision in the same way that an applicant who is refused the status of vetted researcher can appeal. The only reason for my amendment is to allow for equivalence if an appeal mechanism is put in place.
It strikes me that later in the section there are appeals mechanisms around revocation and so on. The reason I have proposed this amendment is to try to make the system simpler. My concern is that somebody who is seeking to become a vetted researcher but is refused that status will look to go to the courts and a platform who is not happy about a person being so designated will go to the courts. Perhaps an official within an coimisiún makes the decision. I would like to see, similar to other areas of Government, an internal review mechanism, such as exists in a social welfare case, where decisions by a deciding officer can be appealed at a higher level. In this case, I am suggesting a designated commissioner should be appointed under Coimisiún na Meán.
I will not necessarily push the amendment but I think the Minister of State understands the point I am trying to make. This section may, certainly in the early days, be somewhat contentious and my concern is that we will see these decisions being challenged. If a quicker appeals mechanism is set up, it may be of benefit to all parties involved.
Amendment No. 25 simply clarifies that these other parties may also include the platforms or search engines.
Gabhaim buíochas leis an mbeirt Sheanadóir. I oppose amendment No. 23, which is grouped with amendments Nos. 24, 25 and 26, all relating to vetted researchers. Amendment No. 23 seeks to include a provision that an accredited journalist or representative of an NGO may be deemed to have met the vetted researcher designation conditions if they can demonstrate their access to data would be in the public interest. Through the digital services regulation, the status of vetted researcher can be granted by the digital services co-ordinator of establishment to researchers who demonstrate they satisfy the specific conditions set out in the EU regulation. These conditions include that they are affiliated with a research organisation, they are independent of commercial interests, the proposed research is for the sole purpose of conducting research that contributes to the detection, identification and understanding of systemic risks in the Union and the assessment of the adequacy, efficiency and impact of brisk mitigation measures, and that the research results will be made publicly available free of charge.
Researchers may then apply to the digital services co-ordinator of establishment of the very large online platform or very large online search engine to seek access to data. This means that researchers from across all member states will be applying to Coimisiún na Meán for vetted researcher status with respect to accessing data of VLOPs or VLOSEs that have their main establishment here. Whether the applicant is granted a designation as a vetted researcher is dependent on them meeting a set of conditions. These conditions are set out in the digital services regulation.
Ireland does not have scope to amend these conditions. The EU regulation has direct effect in this regard. Digital services co-ordinators of establishment in each member state have to use the same set of conditions in assessing whether an applicant is to be designated as a vetted researcher. It cannot be that a researcher can meet the conditions for vetted researcher status in one member state but not in another. If I were to accept this amendment, conditions in Ireland would be different to other member states.
Amendment No. 24 seeks to include permission to permit an appeal for both the person applying for vetted researcher status and the very large platforms or search engines from which the data will be requested. Section 189 already provides for an appeal by an applicant where it sets out that a review of the refusal may be requested within 14 days.
Regarding the provision for an appeal by the provider, this is not feasible in the application process between the DSC and the researcher applying. There is no role for the provider during the application process, nor is there provision for the provider to be informed of the decision in regard to the application in section 187(5), so it is not appropriate that the provider can appeal the decision. However, it is provided in the regulation itself and, subsequently, has direct effect in that the provider can, after receiving a reasoned request from the DSC in respect of the particular data, seek to amend the request.
With regard to amendment No. 25, the Bill provides that Coimisiún na Meán may carry out investigations into the designation of vetted researchers on its own initiative or based on information received from third parties. The purpose of this amendment is to specify that third parties include the VLOPs or VLOSEs. It is not necessary because they are comprehended by the term “third parties”.
Amendment No. 26 seeks to extend the number of days to request a review of a refusal or revocation of the status of vetted researcher from 14 to 28 days. A 14-day period is considered fair and proportionate, giving enough time for the applicant to have received the notice of refusal or revocation while ensuring that the administration process of Coimisiún na Meán can be carried out efficiently.
Amendment put and declared lost.
I move amendment No. 24:
In page 38, between lines 30 and 31, to insert the following:
“(9) (a) The Commission shall permit an Appeal to a designated Commissioner on the determination under subsection (5) by-
(i) the person seeking designation as a vetted researcher under this Section, or
(ii) by the very large online platform or the very large online search engine named under subsection (7), provided that the Appeal is made within 14 days of the notification of the determination in writing and outlines the grounds for the Appeal on the basis of this Act.
(b) The Commissioner shall decide on the Appeal within 14 days of the receipt of the Appeal in writing by the Commission.”.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 38, line 39, after “parties” to insert “, which may include very large online platforms or very large online search engines”.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 39, line 18, to delete “14 days” and substitute “28 days”.
Amendment put and declared lost.
Amendments Nos. 27 to 34, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 27:
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.”.
Central to my concerns with this Bill and those of many of the public is the phrase “Who watches the watchers?”, taken in conjunction with Pontius Pilate's utterance, quid est veritas, or what is truth? Ever since 2016, the online spaces of social media have been plagued with the ambiguous fact checkers, the individuals and bodies which often, by some unknown mechanism, are granted the power to remove or suppress content that is deemed untrue or partially untrue. Obviously, the abuse of this power has become widespread almost immediately as partisan ideological moderators crack down on anything that challenges their worldview or paints their opponents in a favourable light. Mark Zuckerberg famously once told the US Congress that these fact checks were simply opinions given by individuals or bodies in order to not have Facebook liable as a publisher. The moniker of fact checking has now become a running joke online, synonymous with being merely an alternative opinion lending undue weight. Now that the fact checking frenzy has died down and largely gone away, Ireland wants to introduce this on a statutory basis and give people more power than ever before because we are always five years late and we seem to exclusively adopt policies that other countries are abandoning after seeing that they do not work.
This amendment, with amendments Nos. 28 and 32, seeks to limit the damage that these trusted flaggers will be able to do when, inevitably, this status is awarded to bodies that are pursuing a particular agenda, which they will do, particularly on social issues. Amendment No. 28 states:
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.”.
Very simply, we need to know who these flaggers are. The people have had enough of faceless bureaucrats working behind the scenes. If they are to have the power, they must also take the responsibility. This complaints process will allow the public to make an informed decision on the effectiveness of the trusted flaggers. Amendment No. 32 states:
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.”.
These are the amendments that I wish to move.
I would not have that degree of scepticism in respect of the role of fact checking and think it has been an important aspect, given the times when we have had tides of dangerous misinformation, for example, during the period of Covid. It is important that there are places where people can go to get verified information and to check the sources of information to see what may have been decontextualised and, for example, to find the origin of statistics and get that key information. I believe, therefore, that there is a role for trusted flaggers where information is being identified because there can be very real-life consequences in terms of misinformation.
Nonetheless, I believe it is important that there is a scrutiny. For example, I want to give credit to The Journal, which has done good work in Ireland in regard to fact checking in the past. That is very useful for public debate, although we may not always like it. At times, I have been pleased to see things challenged and, at other times, I have been very disappointed regarding facts that I believed were accurate. It is important to be able to challenge and check our information, and important that there are those who are trusted to do so. However, it is also important that we have an element where we monitor how this flagging function is being used.
Therefore, amendment No. 29 seeks a review of notices by trusted flaggers to detect targeted, malicious, vexatious or bad-faith submissions and to identify trusted flaggers whose status may need to be considered for revocation or review. I say this in the context of our knowledge of SLAPP lawsuits, which are lawsuits designed to silence those in the public realm and, perhaps, critics of a particular Government policy or those who present uncomfortable facts. It is important that facts be checked; however, where they are uncomfortable, it is important not to silence those who present them. In Gaza, sadly, key information from Palestinians has disappeared in certain contexts. For example, we have seen the silencing of those speaking about some of the humanitarian concerns in some contexts, not in Ireland but internationally.
In this context, it is really important to have monitoring when someone achieves trusted flagger status. One may begin as a good-faith actor and come from a credible academic context, but that context and one’s beliefs may change. People may experience radical life events that change their views. It is important that status be monitored. We cannot simply say someone can retain trusted flagger status forevermore, even if he or she has been found to have engaged in vexatious, targeted or malicious flagging that was undermining the efficacy of the system as a whole. I believe there is a role for trusted flaggers but it is appropriate that there be some monitoring of it.
All of my amendments in the group touch on this issue. Amendment No. 29 simply states that an coimisiún shall systematically review notices and identify patterns of concern, which would then trigger a process for the consideration of the revocation of trusted flagger status.
Amendment No. 30 states the review of the status may be at an coimisiún’s own initiative or based on information received by it from third parties. Again, it is not that such third parties should have the veto or the power to complain. Complaint alone should not be the basis; it is a question of triggering a process of checking for a pattern. The independence of an coimisiún in this process is crucial.
Amendment No. 31 states an coimisiún shall maintain on its website a database of entities with current or revoked trusted flagger status, including not so much information on individuals but general statistics on the activity of flaggers. Where a trusted flagger has been identified as having engaged in malicious or vexatious flagging in another EU country, it will be useful for us to see that same pattern – for example, where an organisation’s credibility becomes questionable.
Amendment No. 33 pertains to the period of time. It is another case of 28 days versus 14 days. I always feel 14 days goes fast but 28 days allows an appropriate time for a response.
Amendment No. 34 suggests the commission may initiate an investigation under section 41, either on its own initiative or based on information it may have received. There may be a wide number of trusted flaggers in operation. It may be that concerned members of the public, perhaps in other parts of Europe, will have identified issues of concern over the actions of a trusted flagger or the credibility or motivation of a flagger if problematic. Such information may be useful to the commission in deciding to review status, as under amendment No. 30, or in initiating an investigation, as under amendment No. 34.
I hope the Minister of State will regard these proposals as constructive ones simply to ensure the trusted flagger system will be as effective as possible.
If we consider the traditional model of how media used to operate, we will note it was very clear that newspapers and broadcasters who reported on the news were subject to particular standards and expected to uphold them. The difficulty at the moment is that we effectively have the Wild West. This Bill and the Digital Services Act have been trying to put some guardrails in place. I agree with Senator Higgins that we constantly need to review the trusted flaggers and vetted researchers. I disagree strongly with Senator Keogan that they do not have a place. They have a very valuable place in our society. If we do not have them in place, we will leave control to the very large platforms and, more frequently, the whims of their owners. They already have what you might call their own trusted-flagging or vetted-research system in place, with their own content moderation systems, over which we have no control. To allow a system in which we do not have the proposed model in place essentially leaves us at the whim of Elon Musk or Mark Zuckerberg and allows them to determine what we can and cannot see. It is critical, therefore, to have mechanisms that allow us to look under the bonnet and have accountability. I am not happy with the idea of every decision in this regard being entrusted, for the most part, to a small number of wealthy white men, mostly from outside the State and European Union. The proposal will allow a very fair system entailing a rigorous system, put in place by an coimisiún, to test who the trusted people are and hold them to account. Yes, it does require review. I agree with Senator Higgins in that I believe The Journal has done very good work in that regard. It will be more important in the era of artificial intelligence, deep fakes and greater levels of information and disinformation to have systems in place to tackle and challenge some of these problems. This is about ensuring fact and truth are protected.
I oppose Senator Keogan's amendments in this regard. We need to have the safeguards that are in place. I am not one of those who adhere to St. Elon Musk and to the view we should trust everything that he says. I do not believe in that gospel; I actually believe in having trusted, independent, vetted researchers regulated through a State mechanism. I have far more faith in the Government than I would necessarily in wealthy white men from outside the State.
I will ask the Minister of State to respond first and let Senator Keogan contribute afterwards.
I am happy to respond at the end.
I have a point of order on something Senator Byrne stated. My amendment states, "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." I agree there should be provision in this area but somebody has to oversee who the trusted flaggers are. You have to have a mechanism of checking them.
Let us consider some of the NGOs at this moment in time.
On a point of information, that is what the legislation provides for.
Senator Keogan without interruption.
Let us just consider the NGOs at this moment. The Government obviously supports many of the NGOs in this country, particularly given the ongoing referendum campaigns. There are NGOs that are 96% funded. The National Women’s Council of Ireland, NWCI, is 96% funded by the Government. It is out doing the bidding of the Government.
With respect, Senator, this is not a point of order.
Sorry it is. Are they to be trusted with legislation?
If the Senator wants to speak to the amendment-----
They are not to be trusted with legislation. They are spreading misinformation-----
If the Senator does not want to speak to the amendment, we will hear from the Minister of State.
-----and disinformation in relation to the referendum.
Sorry. It would not be the practice that allegations would be made against organisations, especially when they are not present.
Everything I have said here is factually true.
The Minister of State to respond.
It is not appropriate.
I will speak on the amendments. Amendments Nos. 27 to 34, inclusive, are grouped together because they all relate to trusted flaggers. Amendment No. 27, as proposed by Senator Keogan, requires an additional provision in the Bill stating that Coimisiún na Meán will "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". We had a very good discussion at the committee and in the Dáil around this. It may be useful to outline some important details about the trusted flagger framework, including the application, the conditions, the transparency provisions and the role of the DSC. As I said to Senator Ruane earlier, I want to acknowledge the engagement of the Civil Engagement Group, and Senator Higgins in particular, on the Bill. My officials are available to walk Senators through the process of the Bill. I apologise for the rush this evening. I will speak to it later. We will walk Senators through the process in advance of the regulations. I want to reiterate that.
A core objective of the EU digital services regulation is to expedite the removal of illegal content from online services. One mechanism for facilitating this is the framework for trusted flaggers established by the regulator. Providers of online services are obliged to prioritise notices submitted by trusted flaggers about the presence on their service of specific items of information that the trusted flagger considers to be illegal content. The designation of priority content by trusted flaggers does not allow trusted flaggers to require the provider to automatically remove content. It means that the provider must give priority to the reviewing of notices submitted by trusted flaggers over other notices submitted to them. The Digital Services Bill simply sets out the stats in relation to the application process to Coimisiún na Meán for trusted flagger status. The Bill does not provide for Coimisiún na Meán to apply specific criteria for determining who or what may or may not be awarded trusted flagger status. That is because such criteria are defined in the digital services regulation.
The question of whether an applicant is or is not granted a designation as a trusted flagger depends on them meeting the set of conditions as defined in the regulation. The regulation provides for the DSC to award the status of trusted flagger to entities that satisfy three conditions: it must have particular expertise and competence for the purposes of detecting, identifying and notifying illegal content; it must be independent from any provider of online platforms; and it must carry out its activities for the purposes of submitting notices diligently, accurately and objectively. Ireland does not have scope to amend this set of conditions. The EU regulation has direct effect in this regard. Digital services co-ordinators in each member state have to use the same set of conditions in assessing whether an applicant is to be designated as a trusted flagger. Trusted flaggers can be public in nature, such as law enforcement authorities in the case of terrorist content; or they can be non-governmental organisations, including private or semi-public bodies, such as organisations dedicated to reporting child sexual abuse material or illegal racist content. However, the trusted flagger is not the arbitrator of illegal content. The trusted flagger simply notifies the provider when they consider that there is illegal content on the provider’s platform. In the notice, the trusted flagger must provide a sufficiently substantiated explanation of the reasons the trusted flagger alleges the information in question to be illegal content. The provider is obliged to come to a decision in a diligent and non-arbitrary manner on whether content flagged by a trusted flagger is illegal. Again, the decision by the provider is focused on whether the content is illegal, not on whether people may have a political difficulty with or a values difficulty with the content. It is a matter of illegal content.
Amendments Nos. 28 and 31, in the name of Senator Higgins, seek to require Coimisiún na Meán to publish a database of trusted flaggers. It is already the case that the DSC must provide the European Commission with the details of entities to which it has awarded trusted flagger status.
They must also provide information about those trusted flaggers whose status has either been suspended or revoked. The European Commission must then publish that information in a public database. On the point about patterns, when it is published on an EU-wide basis it will be much easier to identify such patterns.
Amendments Nos. 29 and 30 both seek to insert a provision requiring Coimisiún na Meán to conduct a review of the status of any trusted flagger, either as part of a systematic process of reviewing the notices submitted by trusted flaggers, as set out in amendment No. 29; or on their own initiative or based on information from a third party, as set out in amendment No. 30. If Coimisiún na Meán has reason to suspect that there is misuse of the status based on information from a provider or a third party, it is already provided for that it can investigate the entity concerned, with its trusted flagger status being suspended during that investigation. I do not consider that the amendments provide any additional opportunity to review the activities of trusted flaggers that is not already in place in the digital services regulation framework and the Bill.
Amendment No. 33 seeks to extend from 14 to 28 the number of days during which a review of a refusal or a revocation of status of trusted flagger can be requested. As I previously outlined in relation to the review for vetted researchers as proposed by Senator Byrne, this 14-day period is considered fair and proportionate. It is, in my view, enough time for the applicant to have received the notice of refusal or revocation, while ensuring that the administrative processes of Coimisiún na Meán can be carried out efficiently.
On amendments Nos. 32 and 34, Article 22(7) of the digital services regulation provides that third parties can complain about trusted flaggers. It states:
The Digital Services Coordinator that awarded the status of trusted flagger to an entity shall revoke that status if it determines, following an investigation either on its own initiative or on the basis of information received from third parties, including the information provided by a provider of online platforms ... that the entity no longer meets the conditions set out in paragraph 2 [of Article 22].
One of the conditions in Article 22(2) is that "it carries out its activities for the purposes of submitting notices diligently, accurately and objectively". As I have just outlined, and I apologise for the detail here, the conditions associated with being awarded trusted flagger status, combined with the reporting and transparency provisions around their activity on an EU-wide level, are in place to ensure they can act in a competent and objective manner. Coimisiún na Meán can investigate the trusted flagger on its own initiative or based on information received from third parties. All in all, I consider this to be a robust framework that supports the trusted flagger mechanism in achieving the objective of the digital services regulation in locating and removing illegal - I stress the word "illegal" - content online.
I thank the Minister of State for his reply on the question of how this status can be revoked. This legislation has massive implications EU-wide when it comes to hate speech because "illegal content" does include hate speech as defined by the EU. It is not just for people on the left or the right - even people with pro-Palestinian or progressive views would find themselves on the wrong side of this legislation. Checks and balances are needed. This legislation will fly through both Houses with very little scrutiny when this country has not even defined what hate is, and when some people cannot even define what a woman is. This legislation can cause massive implications down the road when people are banned from social media. I think it is a sad day for democracy.
I thank the Minister of State for his appropriately detailed response. It is regrettable that the speed at which the Bill is moving does not allow us to have the normal Committee and Report Stages, as we should have, where we could be refining and learning from each other’s amendments and proposals.
I am pleased to hear about the information given in respect of the database at EU level. That is useful and very good. In terms of the pattern, I still have a small concern. I am dealing with the issue of the flaggers but there is a wider issue including some of the amendments which were not allowed, unfortunately, but which would have allowed us to strengthen this Bill. The Minister of State mentioned that the flaggers are simply flagging actions that are illegal. A key concerns I have is with regard to how this is done, as Senator Malcolm Byrne spoke about. There has been a concern regarding these very large platforms. For example, in responding to reports or concerns, one is somewhat at the whim of whether the platforms decide this is in their particular community use rules. Many of the physical individuals who do a lot of checking, who have responsibility for quality control and who receive reports from within platforms have lost their jobs. In the end, it comes down to people checking things. There is understaffing with regard to those who are doing the work of checking and responding to complaints and flags. I am still a little concerned at the other end. As the Minister of State stated, there is a requirement that flagged reports might get priority but there is still a potential lag in terms of a proper response. We have seen how radically the employment practices in a platform can shift the level and quality of response.
I will come back to the Minister of State's other point. Will the Minister of State respond on this because our amendment No. 6 was concerned around things such as circumnavigations? This is where it is not clear whether something is legal or illegal in the classic sense. For example, that was an amendment we were not able to bring forward, as it was ruled out of order. It was an example of the ambiguity whereby the very large online platforms and very large online search engines might be using what are known as proxy markers, such as ethnic affinity markers. They may be constrained with regard to using certain kinds of data. The legal constraint is clear around using certain kinds of personal data with regard to targeting, including targeting children. There are clear legal constraints but proxy markers are sometimes used, so if someone likes this, he or she is probably a child or if somebody likes that, he or she may be of this or that ethnicity. That becomes what is sold to advertisers or what is used. That is an example of something where there is a cloud over whether something is illegal or not. We need to be building up patterns of identifying those kinds of circumnavigations again. Will the Minister of State outline where he feels that will be captured?
That is why some of the things when I looked into trying to give Coimisiún na Meán its investigations I almost hoped we would have flaggers who would be able to flag that. If the flaggers are constrained and are flagging to the platforms things that are definitively illegal, will we still have a filter within the platforms that will stop the identification of intentional, creative, misinterpretation of the rules that we have seen in the past with the issue of proxy markers? I had lengthy notes on that issue but I will park it because I am conscious it is not an amendment but as it relates to these functions, I would appreciate it if the Minister of State could address that issue.
To pick up on Senator Higgins's comments first, I spoke earlier, even though the amendment was not accepted, around the Civil Engagement Group's amendment on algorithmic issues. I stated that first, the risk assessments audits that will be done in this process will give some information to the European Centre for Algorithmic Transparency to start building up a European profile that will tackle some of the issues. I also committed to engage with Coimisiún na Meán, with our digital services co-ordinator, Dr. John Evans, and with the online safety commissioner, Ms Niamh Hodnett, around the points made by the Senator.
The proxy marker is a specific one because it is not always algorithmic; it can be done in purchasing of advertising and can be around a product.
They are very technical issues but I will absolutely engage with them as part of their work post enactment of the Bill to build confidence in that space.
To come back to Senator Keogan's overall points, this Bill does not define hate speech. It is a very technical Bill that also relates to content moderation. With regard to content moderation, the DSA seeks to define the rules on content moderation by providers. There are at least two sides to that particular kind of implementation work. The DSA defines the circumstances under which providers should moderate content and the consequences of moderating or not moderating content as required. The DSA also provides for the rights of users when their content is moderated so there is a provision in that space. Online platforms that do not comply with these rules may face implications with respect to criminal or civil liability for distributing the illegal content of others. Furthermore, they may face administrative penalties imposed on them by the DSC of the establishment.
The DSA introduces two instruments to safeguard against providers taking decisions arbitrarily on content moderation. Article 14 of the DSA sets out the terms and conditions of the service, which must be clear and easily accessible. They must inform users about the procedures for content moderating. Online intermediaries are required to exercise due diligence, objectivity and proportionality when moderating content taking into account the fundamental rights and interests of the parties concerned. For content moderation decisions, platforms must now provide obligatory information to users if their content gets removed or restricted. That will be upfront and available to everybody.
With regard to the contesting of decisions, recipients of services will be able to easily and effectively contest decisions made by the providers of online platforms concerning the illegality of content or its incompatibility with terms and conditions that negatively affect them. Providers of online platforms are required to provide for internal complaint-handling systems which meet certain conditions that aim to ensure systems are easily accessible and lead to fast, non-discriminatory, non-arbitrary and fair outcomes. They are subject to human review where automatic means are used. The DSA requires that providers of intermediary services must publish reports at least once per year on content moderation they have engaged in during that time period. That would meet, unusually enough, both Senators Keogan's and Higgins's aims in terms of transparency around this. Those reports must include the number of notices submitted under the notice and action mechanism categorised by the type of alleged illegal content, the number of notices submitted by trusted flaggers and any action taken due to the notice, and any use of automated means for content moderation.
The DSA rules for trusted flaggers, and indeed all users reporting such content, impose measures to remove or encourage the removal of illegal content in respect of freedom of expression. Again, it speaks to what I feel are very robust checks and balances that address the concerns, albeit different concerns, expressed by Senators Keogan and Higgins.
I think the Minister of State is doing a dance around what I said. The Digital Services Act does not define hate speech but this Bill, in conjunction with the Hate Speech Bill and the EU Hate Speech Bill is very dangerous. It has implications worldwide but particularly for people in Ireland and in the EU. I wanted to make that point.
Again, this is the DSA and this puts the DSR into effect. We were able to use the provisions of the digital services regulation on the night of the Dublin riots to alert online providers to stuff that appeared on their platforms encouraging people to come and destroy people's property and potentially people's lives. That is of huge benefit and if it can be used in terms of public security and public protection in that manner in the way that it was used it shows the very positive potential of the Bill in this regard. I am very conscious of Senator Keogan's concerns and I have tried to show there are a lot of safeguards in place that reflect those.
I will be very brief. I thank the Minister of State for his response.
I look forward to further engagement. As regards these amendments I have tried to bring back in, I wish to flag that it is a concern that they relate to report amendments. They simply request reports. I looked at the rationale for ruling them out of order and it seems to have been due to a cost to the Exchequer. It is as if paper or the work of reports is becoming a cost to the Exchequer. It is an unprecedented thing for amendments requesting reports to be ruled out of order. Such amendments may have been found to be relevant or not to the subject matter of the Bill, but it should not be said that simply to produce a report is an unacceptable cost. I acknowledge that is not a matter for the Minister of State. I am signalling to the Acting Chairperson that I will raise this at the Committee on Parliamentary Privileges and Oversight because that is a concern in a pattern of-----
Senator Ruane raised these matters. I gave a comprehensive response.
I know. I am not asking for a comprehensive response. I will signal for the record that it is a very worrying pattern.
I accept what the Minister of State said and outlined. I appreciate it and look forward to engaging further on the details of the process. I note that in the required report on complaints and flags received, and how many there are, which is outlined in the Bill, I am a little worried that in the reports we will get from platforms, we may not get the qualitative information around that same thing I just flagged to the Minister of State, namely, the issue of evasion. It may simply be reported that X number of reports were found to be valid or not valid, but if there is a pattern of a particular kind of report being made, which is systematically being effectively rejected by the platforms, there is a qualitative issue. That may be something to look at to ensure we look at how we get that issue across. That is the only thing. It is the qualitative piece.
I assure the Senator, and this was previously raised by Senator Ruane, that whole space is an area of concern. It is something I will raise with Coimisiún na Meán in view of its work on this at a European level. It concerns all of us, especially in view of what we have heard today.
I acknowledge a group from University College Dublin who are here today as guests of Deputy Matthews. They are welcome. I hope they enjoy the evening.
Amendment put.
Votáil.
Will the Senators claiming a division please rise?
Senators Victor Boyhan, Gerard Craughwell, Sharon Keogan and Joe O'Reilly rose.
As fewer than five Members have risen I declare the amendment defeated. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
Amendment declared lost.
I move amendment No. 28:
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. 29:
In page 40, between lines 16 and 17, to insert the following:
“(6) An Coimisiún shall systematically review notices submitted by all trusted flaggers in order to detect targeted, malicious, vexatious, or bad faith submissions, and to identify trusted flaggers whose status should be considered for revocation.”.
Amendment, by leave, withdrawn.
I move amendment No. 30:
In page 40, between lines 16 and 17, to insert the following:
"(6) An Coimisiún may initiate a review of the status of any trusted flagger either—
(a) on An Coimisiún’s own initiative, or
(b) based on information received by An Coimisiún from third parties.".
Amendment put and declared lost.
Amendment No. 31 not moved.
I move amendment No. 32:
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. 33:
In page 41, line 1, to delete “14 days” and substitute “28 days”.
Amendment put and declared lost.
I move amendment No. 34:
In page 43, between lines 34 and 35, to insert the following:
"(1A) The Commission may initiate an investigation under this section either—
(a) on the Commission’s own initiative, or
(b) based on information received by the Commission from third parties.".
Amendment put and declared lost.
I move amendment No. 35:
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 simple common-sense amendment. It seeks to bring some equality of opportunity to the playing fields of who can become a trusted flagger. This should not exclusively be the remit of a large body or wealthy State-funded NGO. Those who have the necessary experience and qualifications should be able to apply and should not be prevented from doing so due to cost.
Without this, the Government is giving free rein to large bodies to reinforce a monopoly of power by controlling the information landscape via content moderation. This is undesirable and should be combatted.
This is about fees.
This is amendment No. 35, to insert, "(3) The Commission shall ensure that fees for different classes of application or review request are not prohibitive."
My apologies. I thought the Senator was going in a different direction.
I thank the Acting Chairperson, Senator Maria Byrne. As I said to her earlier, it is good to have her back in the House.
Coimisiún na Meán may specify a fee for application or review a request 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 them necessary and they are only to cover costs for applications or review requests. It is not intended for it to be profit generating.
This is not a fee that would be unmanageable for organisations or researchers and the intention is that Coimisiún na Meán will act fairly in setting those fees. That is applied through the fee-making power in this Bill which is similar to other Bills.
The Senator's amendment is not, therefore, one I can accept. I agree with the intention but I am absolutely confident - indeed, Deputy Louise O'Reilly tabled a similar amendment on Committee Stage in the Dáil and I gave her the guarantee I am giving now - that the fees that are involved here are administrative only and will not be prohibitive.
It is important that they would not be prohibitive. As I say, I believe there are a number of NGOs. NGOs are carefully and strictly monitored in terms of the charities regulation, etc. I do not have the same concern in relation to participation. Having worked in the past for a very small NGO where I had a budget of €17,000 a year, even what seemed like small fees for others would have been a very significant fee for me in that context. I had approximately €3,000 of flexible funding within it. Everything was strictly accounted for. That is why I am conscious of it.
In the academic work, for instance, we will be aware of the undervaluing of many PhD researchers and others who may have a real and relevant expertise. For example, I have highlighted some researchers within UCD, such as Dr. Abeba Birhane, who have done important work in tackling considerable databases of information and considerable areas of problem in terms of the databases, for example, at MIT, that are used to train algorithms, but there is a number of persons like that who may not be in a position to pay large fees.
It would be terrible to lose that expertise. It would be a problem if we were to find that some of those most directly motivated and skilled in public service and expertise in this area were not able to apply because of the fees or it became costly. It is a reasonable amendment to simply say that they should not be prohibitive. I accept that the Minister of State is saying the intention is that they would be administrative, but the question is to ensure that they are not "prohibitive" and are "administrative". Will there be an assurance? Simply because it is solely administrative, it may still be prohibitive to some who might be very relevant. Perhaps the Minister of State could elaborate on that.
That is my intention. As I said to Senator Keogan and, indeed, to Deputy Louise O'Reilly, it will be subject to regulation.
We are resourcing Coimisiún na Meán. It is my Department's role to resource the digital services co-ordinator. They are getting substantial resources to do the detailed work that is carried out in this Bill and there will be no need for them to set excessive fees for people accessing it.
I can assure the Senator as long as I occupy the Ministry I will be watching it. It will be set through regulations which will be laid before the House. There will be a further chance, if the Senator feels they are prohibitive, for us to engage around that.
Amendment put and declared lost.
Before I go on, I welcome Liam McDonnell from Coláiste Pobail Setanta, Dublin 15, who is working as an intern with Senator Currie. Liam, you are very welcome. I hope you are enjoying your experience in the Visitors Gallery here in Seanad Éireann.
Amendment No. 36 is in the name of Senators Higgins, Ruane, Flynn and Black.
I move amendment No. 36:
In page 45, line 8, after "provider" to insert "or providers".
I ask the Acting Chairperson, Senator Maria Byrne, to bear with me for a moment as I have misplaced some of my notes. I can speak to it in any case.
Perhaps this amendment is not necessary. The Minister of State can assure me in relation to it. It was simply to ensure that where the complaints process is relating to persons - plural - we will not make it onerous. It is around avoiding obstacles to a complainant if there has been a failure by an intermediary service provider "or providers". It is trying to ensure-----
Does Senator Higgins want a copy of the amendments?
No. I have the amendments. I had my speaking notes in relation to this issue but I do not need them. It is fine.
Effectively, where persons are making a complaint, there are three forms of intermediary service. The pure conduit, I think, is one of them. There is a number of different ones. A situation which has arisen may require a complaint against both the conduit and another form of platform so that there are multiple intermediary service providers involved in the complaint. What I wanted to ensure is that we did not, especially with the issue we said of fees, etc., create a situation whereby a person is given this kind of elaborate runaround where he or she is making a complaint and then told it is not that intermediate service provider but the other intermediate service provider he or she should make it against and that he or she ends up having to make a succession of complaints rather than, if there is an instance or a situation which he or she wants to have addressed, that he or she can make a complaint that covers more than one intermediary service provider.
It is a technical amendment. Perhaps there is scope in the language in the Bill for that to happen anyway. As I was reading it, however, it seemed to be very much around the singular and there was a danger that we end up with two or three parallel, or worse sequential, complaints taking place.
My understanding is the amendment relates to a provision in the Bill that a person may make a complaint to Coimisiún na Meán if there has been a failure by the intermediary service provider to comply with a provision of the DSR. The amendment proposes that the text of the Bill be changed so as to explicitly state that complaints can be made about a provider or providers.
I do not see the amendment as necessary because I do not see anything in the text of the Bill that would prohibit a person from making a complaint against more than one provider that has failed to comply with a provision the DSR and, therefore, I cannot accept the amendment. The Bill does not in any way go against multiple complaints. It is something in the regulation that I will alert Coimisiún na Meán to to make the processes as efficient as possible for the user.
To clarify, the issue is not the issue of multiple complaints; rather the idea is that there can be a single complaint that involves multiple parties, that is, a person can make a complaint that covers more than one intermediary service provider. There is the capacity to make a million complaints or multiple complaints. However, the question is in order to ensure its efficiency, to ensure that a single complaint, where appropriate, can address more than one intermediary service provider. That can perhaps be tackled in the regulations but it is important. We do not want those making complaints to effectively get told they have barked up the wrong tree on one complaint and the next; we want to make it easy and effective.
I take on board the Senator’s proposals and we will engage with the commissioner on that.
Amendment, by leave, withdrawn.
Section 41 agreed to.
Sections 42 to 44, inclusive, agreed to.
SECTION 45
Amendments Nos. 37 to 40, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 37:
In page 48, line 24, to delete “, as far as practicable,”.
With regard to amendment No. 37, I am concerned about the language “as far as practicable” in this context. These are important amendments. If Members will bear with me for a moment, I have some detailed notes on them. Fundamentally, these address the issue that was highlighted on the danger of a lack of clarity in the Bill around precedence and the dynamics between Coimisiún na Meán and the CCPC. Currently, the way it is framed seems to set out effectively that we may end up with decisions being made by each entity that do not match up with each other. This is a potentially significant problem regarding the effectiveness of the Bill, the clarity of the law and the precedence. Currently, the Bill states, "as far as practicable, consistency between decisions made” between these two entities that are both regulating some of the same areas and same actions. The Bill effectively allows for inconsistency between decisions made by two authorised entities, which is a concern. “As far as practicable” is a get-out clause, in a way. It is a concern because we will end up with maybe not case laws but banks of decisions being made that may be at odds with each other in respect of clarity, effectiveness and even the strength attached to the decisions.
That kind of ambiguity is a concern.
Therefore, I tabled an amendment to remove the language “as far as practicable” to try to ensure there would be consistency. The co-operation agreement is the agreement being put in place between the two entities. My simplest amendment would remove the line “as far as practicable” and leave it as a requirement of the co-operation agreement that the agreement would have to find a way to ensure there is consistency between decisions. That would be the simplest way to do it. I do not dictate in that context what mechanism would be put in place but it puts it as a requirement of the co-operation agreement that it would come up with some mechanism that would ensure clarity and clear precedence with regard to these matters.
In amendment No. 38, I set out an approach that could be taken. Again, the simplest way is amendment No. 37. Amendment No. 38 would insert a new paragraph, which states, “setting out rules regarding the precedence of the decisions” and so on. Attempts should be made to reconcile but An Coimisiún na Meán probably has the appropriate precedence in respect of these final decisions in a hierarchy. It would set out the rules regarding the precedence of the decisions of An Coimisiún na Meán over the decisions of the consumer protection commission in the event of a disagreement over decisions made or other steps taken in part of those decisions. That amendment gives a suggested hierarchy.
Amendment No. 39 would insert a new subsection and is another way to come at this. Our amendment proposes:
Where [there are] inconsistencies ... between decisions made or other steps taken by the Commission and Coimisiún na Meán in so far as ... those decisions or steps [relate] to the Digital Services Regulation, the decisions of An Coimisiún na Meán shall be deemed to take precedence.
It is not making any reporting requirement or anything like that of the consumer protection commission to Coimisiún na Meán. This is for when all these due practical steps have been taken to ensure consistency but they have not been successful and an inconsistency has occurred and we need clarity over where the buck stops, ultimately.
Amendment No. 40 requires a report. This pushes a little bit into the future and how we deal with this issue. I am concerned that this might be used as a loophole and we will end up with decisions taken that are at odds with each other and with a danger of one decision being set against another. Amendment No. 40 requires a report related to inconsistencies in decisions between the consumer protection commission and An Coimisiún na Meán. The amendment provides:
The Minister shall, within two years of the passing of the Act and biennially thereafter, conduct a review of the operation of cooperation agreements under section 45, with particular regard to any inconsistencies identified between decisions made or ... steps taken...
It then adds, “Where a significant or repeated inconsistency is identified as part of the review...”.
Where there is a pattern emerging where the same kind of inconsistency is occurring on multiple occasions, either party might request a review of the co-operation agreement. That may be to say, “This is the co-operation agreement. Here is how we have set it and here is how we planned to avoid inconsistences.” However, if inconsistencies are nonetheless occurring, either party would be able to request a review of the co-operation agreement because clearly, whatever mechanisms are in place in that scenario are not working effectively.
These are amendments trying to clarify, untangle and avoid a future problem either through preventative measures within the co-operation agreement, clarity around the matter of precedence or, as a last measure, through a review mechanism that at least allows for, if the problem which I anticipate may emerge does emerge, knowing which steps to take to address it.
Amendments Nos. 37 to 40, inclusive, are grouped as they are all amendments relating to co-operation between Coimisiún na Meán and the CCPC. Section 45(1)(b) provides that Coimisiún na Meán and the CCPC may enter into a co-operation agreement. This includes for the purposes of ensuring, as far as is practicable, consistency between decisions made or other steps taken by regulators with respect to implementing the digital services regulation.
Amendment No. 37 proposes the removal of the wording "as far as is practicable". However, it is important to remember we are talking about two independent bodies, and there will inevitably be differences in how they operate. In drafting the Digital Services Bill, there was a clear focus towards aligning the processes and procedures of Coimisiún na Meán and the CCPC with respect to the implementation of the digital services regulation. However, we also had to be cognisant that regulators implement other legislation and have processes and procedures in place already, and that there is a need for consistency of operation within each of their operations as well as without. The wording as set out in section 45(1)(b) reflects that while the operators may operate differently in some cases, they should ensure, as much as is possible, that there is consistency between them in the decisions and other steps taken when implementing their respective areas of competence for the digital services regulation.
Amendments Nos. 38 and 39, respectively, propose that a co-operation agreement between Coimisiún na Meán and the CCPC should include a provision that sets out rules regarding the precedence of decisions of Coimisiún na Meán over decisions of the CCPC in the event of disagreement, and that where inconsistencies occur between decisions made or other steps taken by Coimisiún na Meán and the CCPC in respect of implementing the digital services regulation, the decisions of Coimisiún na Meán should be deemed to take precedence. However, I cannot accept these amendments. These amendments, as proposed, would have the effect of one regulator essentially being able to veto another regulator's decision. Both are independent bodies, and I genuinely feel this would not be tenable.
To alleviate the Senator's concerns about decision-making, I want to make it clear that the CCPC has competence for Articles 30, 31 and 32 of the regulation. It will make decisions on any suspected infringements related to these articles. Coimisiún na Meán has competence for all other articles that put due diligence obligations on intermediary service providers. Coimisiún na Meán, as the digital services co-ordinator, shall be responsible for ensuring co-ordination at national level and for contributing to the effective and consistent supervision and enforcement of the digital services regulation throughout the EU. That is why provisions have been made to allow Coimisiún na Meán and the CCPC to enter into a co-operation agreement. The regulators absolutely need to agree together - we are as one on that - in an efficient and effective manner. The purpose of the co-operation agreement is for the two bodies to agree how they will work together, the processes they will adopt and how they will come to a decision when differences inevitably arise. Such an agreement will set out how the bodies will, for example, deal with complaints by Coimisiún na Meán that relate to Articles 30 to 32, inclusive, of the Digital Services Act and thus will need to be transmitted to the CCPC. In terms of the communication processes with the European Commission and digital services co-ordinators in other member states for joint investigations under the digital services regulation for which Ireland is the lead and the infringements relate to Articles 30 to 32, inclusive, that is, the articles for which the CCPC has competence, the agreement should lay out the relevant processes there.
Amendment No. 40 proposes that regular reviews of the operation of the co-operation agreement be conducted by the Minister. However, I cannot accept this amendment either. The Bill provides that the co-operation agreement can be varied by Coimisiún na Meán and the CCPC, which will allow them to update or address matters related to their co-operation activities when they consider it necessary. It is the role of the regulators to make sure they agree the processes and procedures that allow them to co-operate effectively. It is important to remember that both Coimisiún na Meán and the CCPC are independent bodies and, as such, the provisions as set out in the Bill which allow these bodies to enter into a co-operation agreement are important to ensure there is effective implementation of the digital services regulation in Ireland.
It is my belief that that co-operation agreement will deal with many of the challenges that have been rightfully raised by Senator Higgins.
I understand the Minister of State's messaging and concern in relation to the question of the establishment of precedence. It is something that he feels would cross over between these two independent entities. He has asserted that from his perspective at least, there is a very clear separation of functions in the implementation of the Act. However, I believe that in that context, it should be possible for the phrase "as far as is practicable" to be removed. If it is very clear which articles the CCPC has competency over and which articles and general functions relate to Coimisiún na Meán, we should be able to move past "as far as is practicable" and actually get to language on ensuring consistency between decisions. There will not be a clash of those decisions because as the Minister of State noted, the same articles are not going to be decided by the same bodies. There may be transfers of information and movement of a complaint that arrives in the wrong place to the correct and appropriate place, but there will not be a clash of decisions. I think we should be able to remove "as far as is practicable" from that.
Perhaps the Minister of State could clarify something for me. He mentioned the review, and that the co-operation agreement is an agreement between the two entities that they will construct themselves. Is it the case that a review can be triggered by either entity at any point? For example, in a situation where there is a concerning pattern of inconsistency emerging in relation to decisions, would one of the entities be able to trigger a review? That is what my amendment seems to empower. How would a review be triggered in relation to the co-operation agreement if it was found to be inadequate in terms of that issue of addressing inconsistencies? I accept that the entities will be putting the co-operation agreement together themselves, but I am wondering about the question of where it is found to have been unsuccessful in averting inconsistencies. I ask the Minister of State to clarify those two points. I am happy to park the middle two amendments for now.
I suppose it comes back to the very defined roles that I have laid out for both organisations. Either organisation can trigger a review if there are concerns on the part of either organisation. I would hope, at the very outset of this process before we even begin, that that will never have to happen and that there will be sufficient co-operation and engagement between the organisations to iron out any difficulties. We are entering into a whole new territory here. My job at the moment is to make sure that they are both resourced enough to do it. I have absolute confidence in both organisations' abilities to be practical about the implementation of it, to be pragmatic and also to realise the work that they are taking on. I am confident that what we have laid out in the Bill will suffice, but I will absolutely keep it under review.
Is the Senator pressing the amendment?
Amendment put and declared lost.
I move amendment No. 38:
In page 48, between lines 33 and 34, to insert the following:
“(b) setting out rules regarding the precedence of the decisions of An Coimisiún na Meán over the decisions of the Commission in the event of disagreement over decisions made or other steps taken by the Commission and Coimisiún na Meán in so far as any part of those decisions or steps relates to the Digital Services Regulation,”.
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 49, between lines 7 and 8, to insert the following:
“(4) Where inconsistencies occur between decisions made or other steps taken by the Commission and Coimisiún na Meán in so far as any part of those decisions or steps relates to the Digital Services Regulation, the decisions of An Coimisiún na Meán shall be deemed to take precedence.”.
Amendment put and declared lost.
Section 45 agreed to.
NEW SECTION
I move amendment No. 40:
In page 49, between lines 23 and 24, to insert the following:
“Report on inconsistencies in decisions of An Coimisiún and the Commission
46. (1) The Minister shall, within two years of the passing of this Act and biennially thereafter, conduct a review of the operation of cooperation agreements under section 45, with particular regard to any inconsistencies identified between decisions made or other steps taken by the Commission and Coimisiún na Meán in so far as any part of those decisions or steps relates to the Digital Services Regulation, and any actions taken to address such inconsistencies.
(2) Where a significant or repeated inconsistency is identified as part of the review under subsection (1), either party may request a review of the relevant operation agreement.”.
Amendment put and declared lost.
Section 46 agreed to.
SECTION 47
Amendments No. 41 and 42 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 41:
In page 50, line 39, to delete “may” and substitute “shall, within 12 months of the passing of this Act,”
This amendment relates to the powers that sit with the Minister of the day in the context of the processing of special categories of personal data. The GDPR recognises that there are categories of sensitive personal data in respect of which suitable and specific measures or additional safeguards may be needed. The Bill states that the Minister may prescribe suitable and specific measures in relation to special categories of personal data. I am of the view that the Minister should do so. The reason I tabled these amendments is because I know it is not a one-time-only scenario whereby the Minister shall prescribe measures and then that will be finished. Suitable and specific measures may change with the appearance of new dangers, loopholes or threats - for example, artificial intelligence - relating to special categories of personal data or ways in which such data may be exploited. In this context, we have seen the scraping of biometric data from photographs on the Internet is common. We have also seen waves of harvesting of special categories of personal data take place. New threats may emerge. I want to give the flexibility in the context of the term "new". I understand that the term "may" can apply to the flexibility, but I want to ensure that we hit the ground running. We need to go ahead and start working right now on identifying the suitable and specific measures needed for special categories of sensitive personal data.
Amendments Nos. 41 and 42 work as a set. I am trying to ensure that we do not simply have a power sitting in the background. It is already going to be the case that from day one there will be a need for some suitable and specific measures around certain categories of personal data. We need to ensure that this is going to start happening as soon as possible.
As the Senator said, the Bill currently provides that the Minister of the day may prescribe suitable and specific measures for processing special categories of personal data. Amendment No. 41 proposes that the provision be modified to oblige the Minister within 12 months of the passing of the DSA, to prescribe specific measures for the processing of special categories of personal data. Amendment No. 42 proposes that the Bill be further amended to provide that the Minister may prescribe further suitable specific measures from time to time.
We have engaged in significant consultation with many bodies and with the DPC on this Bill in relation to this matter and others. We had significant consultation with the DPC in drafting the positions relating to personal data. There is no requirement for Coimisiún na Meán to actively seek to process special data. However, in the course of those consultations, the DPC considered it prudent to make the provisions in the Bill in the event that such processing is required when dealing with complaints. The DPC, Coimisiún na Meán and the CCPC are currently engaged in discussions in relation to data protection matters, including the role of data protection and privacy statements for transparency purposes. The design of the complaints form is important. I am sure the Senator will agree that good design can go a long way towards limiting the data submitted to the type of data required.
Only time will tell when it is necessary for Coimisiún na Meán or the CCPC to process special category data and the type of safeguards that may need to be prescribed in regulation. On that basis, I am opposing amendments Nos. 41 and 42. We need to wait and get the system up and running. Then we will take the action by regulation if required. As I have emphasised throughout the debate, such regulation will be laid before both Houses so that there can be scrutiny. The provisions currently set out in the Bill for prescribing specific measures for the processing of special category data will allow the Minister of the day to take necessary action if required.
I take the Senator's point. I feel it is just a bit early in the process to go where she wants to go, but we have the provisions in place to do so.
I accept that the intention is there in terms of the operations. It is going back to the same issues we flagged earlier, such as proxy markers and how sensitive information might be used. I am thinking here of biometric data. The State has not always had a great record in processing this. The State has fallen short in the handling of special and sensitive personal data in the past. Unfortunately, I have to say that at times the DPC has not been as robust as we would like and I will come to that in some of my later amendments. The DPC has used a very iterative approach when in fact we need to ensure that we are implementing the law as well and as thoroughly as possible, rather than waiting for things to go wrong.
The Minister of State has indicated a few times the intention for the regulations to be laid before the Houses. This process has been really quite rushed. Since we are talking about Committee and Report Stages combined at the same time I ask that there would be a commitment on this. Many things get laid before the Houses, but I ask for a commitment that, at the invitation of this House, there would be a willingness to come and discuss such regulations and hear the input of Senators. I do not speak solely for myself. I know there are also Senators from the Government side who may well have useful input and comments to make on the regulations. Perhaps that is something that could be indicated as well.
I want to acknowledge and thank the House for its co-operation in this regard. This is not my normal way of doing business, but we have to have this up and running by 17 February, in line with the EU approach on it. It was a very complex Bill and it took quite a lot of work by my Department officials, particularly the four who are with me, and also staff of the Bills Office. I will give the Senator a guarantee. I know there is a habit of regulations being loaded on people. I will ensure that every group gets specific notice when those regulation drafts are there. The Senator will have a chance to look at them, as opposed to them scurrying in with another load of regulations on the day. I will make sure that every group gets them. I extend the offer that my officials will meet the Senator, and any group that is interested, ahead of that process. I know the digital services commissioner, John Evans, is due to address the Joint Oireachtas on Enterprise, Trade and Employment at some stage before the end of February. He is very engaged in his work and in opening up about it. I am pretty sure he would be happy to engage with the Civic Engagement Group as well
I thank the Minister of State for that commitment.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 50, line 40, after “section” to insert “, and may prescribe further suitable and specific measures from time to time”.
Amendment, by leave, withdrawn.
Section 47 agreed to.
Sections 48 to 53, inclusive, agreed to.
SECTION 54
I move amendment No. 43:
In page 57, line 6, to delete “may” and substitute “shall”.
Amendment, by leave, withdrawn.
Section 54 agreed to.
Sections 55 to 61, inclusive, agreed to
SECTION 62
I move amendment No. 44:
In page 62, between lines 35 and 36, to insert the following:
“(c) any previous decisions by other Member State competent authorities in respect of similar or comparable investigations,”.
Is this a stand-alone amendment or is it grouped?
It is a stand-alone amendment.
The amendment relates to a theme similar to that which will emerge in subsequent amendments. It aims to ensure that in the process undertaken by the commission there would be consideration of decisions previously made by other member state competent authorities in respect of similar or comparable investigations. It is important to acknowledge and learn as we move forward. I was very active when our data protection legislation was brought forward in 2018. A significant responsibility was placed on Ireland because we were, in effect, the main point of implementation in respect of the data protection regulation. Many people throughout Europe were disappointed that Ireland was perceived as not having been as robust, speedy or strong in its implementation of the GDPR as it ought to have been. I do not wish to rehash many of these points but issues have been highlighted. In the context of the Meta case, the European Data Protection Board voted to overrule the DPC. Separate from that, several countries have raised specific and individual concerns in respect of issues they encountered that they believed were not being adequately addressed in Ireland. In many cases, Ireland was the first port of call for a complaint but the effect of the breach in terms of GDPR was being felt in other countries. Relevant and reasoned challenges were filed by Spanish, Italian, Swedish, Polish, Portuguese, Norwegian, Austrian, Finnish and German regulators against the Irish decision in the Meta case, to give just one example. That is significant in the context of Ireland's credibility as regulator and our consistency.
It is important that as we come into this new area of regulation, where Coimisiún na Meán will have a key responsibility and we have VLOPs and other significant actors within Ireland, we send a signal that we will be robust in our implementation and cognisant of the pattern across the rest of Europe. I will be moving amendments similar to this one in respect of other sections. The amendment proposes that, in the process of making a decision, there would be consideration of similar decisions or similar or comparable investigations that have been conducted by other member states. There is a need to show that we will work constructively with other member states and be aware of the impact of these issues on other member states. The acceptance of the amendment would be an appropriate way for us to send that signal. If this was a clear part of the process, that would get Coimisiún na Meán off on the right footing in the context of its new functions.
I will speak to the amendment but the Data Protection Commission is in a different Department, obviously. I have had engagement with it in my Ministry. It has developed significant robustness in recent years, with a record fine of €1.2 billion imposed on Meta. I wish Ms Helen Dixon well in her new role.
In addition to preparing the Bill, however, we have ensured that Coimisiún na Meán, and its digital services co-ordinator, DSC, in particular, will be resourced to take on their role. We are very aware of the scale of the job. I was going to use the word "burden". We are very aware of the scale of the job. An Coimisiún is staffing up to do it. There will be a constant engagement with the DSC, under Coimisiún na Meán, regarding the resources it needs. I assure the Deputy that we will do everything possible to ensure Coimisiún na Meán and its DSC function is robust and resourced to take on these duties. Tensions between countries are inevitable in this space, particularly where there are different systems of law.
The amendment, which is relevant in that context, proposes that in coming to a decision on suspected contraventions, the CCPC must consider previous decisions by other member state competent authorities in respect of similar or comparable investigations. However, the decision as to whether a person has committed a contravention must be based on the unique facts that are prevalent to the unique case at hand. The CCPC must be able to stand by the evidence that underpins its decision in that case. It should not be influenced by outcomes of previous investigations or subsequent decisions. It will probably take them into account but it should be allowed to do that in the context of its work and the parameters set out for its investigations, to which reference was made.
Before we move on, I welcome the ambassador of Argentina, H.E. Ms Ana Laura Cachaza, minister Nicolas Vidal, counsellor Juan Taccetti and Agostina Salvaggio, second secretary. They are here with Senator Carrigy. They are very welcome to the Distinguished Visitors Gallery. I hope they enjoy their visit.
I am glad the Minister of State has spoken with such strong intention with regard to proper resourcing and appreciate that each decision must stand on its own evidence. Much as in every legal case, however, although it all stands on its own evidence, there is a level of looking to and learning from relevant information that informs the decision. It is not about being bound by previous decisions but, rather, simply being informed by them. The performance in the context of GDPR is very relevant to this point. In 2018, I thought we were going to seize the nettle but, unfortunately, we did not do so. An ICCL analysis found that 75% of the decisions of the DPC in a five-year period ended up being overruled in some way by the European Data Protection Board.
The Minister of State referred to different legal contexts but they are not different legal contexts. Ultimately, they are different legal contexts but it is the same law. We are talking here about EU law. The consistency and robustness of how it is applied is important and significant. As he is aware, there are provisions within the new legislation, possibly learning from GDPR, under which certain kinds of cases may be taken to a certain point earlier. It is important that we are clear and have learned from the past. Sadly, the State should have been far better in the context of GDPR. For example, the Department of Social Protection and others were quite combative when it came to taking on rulings from the DPC. In effect, the State had the opportunity to give leadership in terms of robust action in respect of GDPR and to take it on the chin when the State was found wanting. Instead, the State quibbled, as did the very large platforms and major actors, and we ended up with a DPC that was not internationally perceived as being as effective as it ought to be. That was damaging to us, which is why I am highlighting it in this regard.
I appreciate each case is unique but each case should be decided on all the available evidence, part of which may be evidence that has come to light in the course of investigations in other countries or jurisdictions dealing with the same legislation.
I have spoken at length on this. I have a set of amendments that are very similar. I will not make all the same points on each amendment. It is a general issue. I am concerned. The signal needs to be strongly sent to Coimisíun na Meán. We do not want any danger of a perception that Ireland is a light touch or soft process. It will reflect poorly on us if that is the case.
I assure the Senator that is not my intention. One of the reasons we are rushing the legislation is so that we have it all in place for 17 February. We will kick off with serious intent from the start.
There is nothing in the Bill to prohibit the CCPC from examining or reviewing the decisions of member states. It does not need to be obligatory, as the amendment proposes. I am sure the CCPC will do that in the context of the way it approaches its work. The Bill will hopefully be passed this evening but we will continue to ensure the CCPC is resourced. There will be good engagement with the DSC around this. I give the Senator that guarantee.
Amendment put and declared lost.
Section 62 agreed to.
SECTION 63
I move amendment No. 45:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, if the Commission can reasonably conclude that the decision ensures compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 46:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, if the Commission can reasonably conclude that a new investigation would not result in improved compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 47:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, if the Commission can publish a written rationale which reasonably demonstrates that the decision ensures compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 48:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, if the Commission can publish a written rationale which reasonably demonstrates that a new investigation would not strengthen compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 49:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, only if, where the decision relates to providers of VLOPs or VLOSEs, the Commission can publish a written rationale which reasonably demonstrates that the decision ensures compliance with the Digital Services Regulation”.
Amendment put and declared lost.
I move amendment No. 50:
In page 63, line 26, after “decision” where it secondly occurs to insert the following:
“, only if, where the decision relates to providers of VLOPs or VLOSEs, the Commission can publish a written rationale which reasonably demonstrates that a new investigation would not strengthen compliance with the Digital Services Regulation”.
Amendment put and declared lost.
Section 63 agreed to.
Sections 64 to 66, inclusive, agreed to.
SECTION 67
I move amendment No. 51:
In page 67, between lines 26 and 27, to insert the following:
“(p) any previous determinations by other Member State competent authorities;”.
Amendment put and declared lost.
Section 67 agreed to.
Sections 68 to 72, inclusive, agreed to.
SECTION 73
I move amendment No. 52:
In page 71, line 11, to delete “may” and substitute “shall”.
Amendment put and declared lost.
Section 73 agreed to.
Sections 74 and 75 agreed to.
SECTION 76
I move amendment No. 53:
In page 73, line 22, to delete “may” and substitute “shall”.
Amendment put and declared lost.
Section 76 agreed to.
Amendment No. 54 is out of order as it poses a potential charge on the Revenue.
Amendment No. 54 not moved.
Sections 77 to 84, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported without amendment.
When is it proposed to take the next Stage?
Is that agreed? Agreed.
Bill received for final consideration.
When is it proposed to take the next Stage?
Is that agreed? Agreed.
Question, "That the Bill do now pass", put and agreed to.