Lack of complaints mechanism a 'major gap' in plan for online regulator

An online safety commissioner will devise binding safety codes that will set out how regulated online services, including certain social media services, are expected to deal with defined categories of harmful online content, such as criminal material, serious cyber-bullying and material promoting self-harm, suicide and eating disorders.

The commission will have the powers to impose levies on the likes of Netflix and Disney+ to fund its operations, as well as having the ability to impose financial sanctions of up to €20m or 10% of turnover to companies found to be non-compliant with its directives, as well as imposing criminal sanctions on senior management.

Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Catherine Martin, launched the bill yesterday, insisting the new body will “have real teeth”.

“It will have a range of compliance and enforcement powers,” she said. “That includes powers to audit, to investigate, to require provision of further information, and reporting requirements.

If a service is suspected to be non-compliant, the commission can appoint officers to investigate this — those officers who have powers including obtaining search warrants and to question people under oath.” 

A “majority” of the 33 recommendations made by the joint Oireachtas committee on tourism, culture, arts, sport and media on the legislation are addressed in the bill, Ms Martin said.

However, campaigners criticised the bill, pointing to “major gaps”, including the omission of an individual complaints mechanism for harmful online content, and say these must be addressed.

The complaints mechanism was called for by the committee and the #123OnlineSafety campaign, led by the Children’s Rights Alliance, but has not yet been included in the bill.

Ms Martin said this proposal required “further consideration”, and may be addressed through an amendment to the bill after an expert working group reports back.

Children’s Rights Alliance chief executive Tanya Ward welcomed the bill’s publication and said that the legislation “has the potential to be groundbreaking”.

“We’ll be waiting to see what it does to protect victims of online abuse and what measures are included to make the online world safer for children/young people,” she posted on Twitter.

However, Ms Ward noted that “major gaps” in the bill, like the current omission of an individual complaints mechanism, “must be addressed at this next stage”.

Solicitor and director of Data Compliance Europe Simon McGarr, however, said that the law will likely be superseded by a similar EU law being drawn up. He said that the current BAI is ill-equipped to regulate the internet and said the Government had “Frankensteined” ideas from the EU Audiovisual Media Services Directive.

“I don’t think the BAI are familiar with the internet. The internet and broadcasting is a completely different landscape.

“The audiovisual directive is a completely logical piece of legislation, there’s nothing controversial in it,” she said.

“But the State has Frankensteined a load of things where the EU is going to overtake it. For the Government to legislate when the EU is going to legislate anyway is a strange impulse.

“Defining harmful content will be very difficult, and there’s the question of who can make a complaint.” 

“I don’t see any evidence that the State has grappled with the philosophical debate around the internet.”