The Digital Services Bill (2023) reached Committee Stage this week, with politicians hearing that the Dáil was on “a very tight deadline” to pass the new EU legislation to regulate online content.
Meeting on Wednesday, the Select Committee on Enterprise, Trade and Employment heard that the legislation would grant “wide ranging powers of regulation,” and that it would have a “particular impact on free speech and the public realm.”
Under the Act, organisations that wish to identify illegal online content can apply to qualify officially as “trusted flaggers.” Under the EU legislation, trusted flaggers operate as government-appointed entities – specifically not individuals – who take on the role of identifying and notifying platforms of content on their site which could potentially be illegal.
The legislation defines the status of a trusted flagger as “possessing the competence to effectively identify illegal content,” independence from any online platform,” as well as “submitting flagged content (i.e., notices) accurately and objectively.” In addition, trusted flaggers are required to publish an annual report outlining actions and notices made the previous year.
Governmental and NGO organisations, consumer organisations, and semi-public bodies can all become trusted flaggers under the Digital Services Act (DSA).
The legislation outlines that the organisation must, in order to be a trusted flagger, have demonstrable proof of expertise in addressing illegal content and are already established as an organisation. In addition, it must “work accurately without bias or subjective views,” and “can be private, public, or semi-public governmental or non-governmental organisations (NGOs).”
The DSA requires that online services, specified platforms, and search engines, to have an ongoing relationship with trusted flaggers and take action when given a notice of alleged illegal content.
The legislation has been described as “major,” with the potential to be as influential as the General Data Protection Regulation (GDPR) passed in 2014. While advocates say it will put an end to weak self-regulation, concerns have been heard that it could be used by governments as a tool for censorship.
In moving the Third Stage of the Digital Services Bill, which passed Second Stage in the Dáil last month, legislators heard that the purpose of the Bill is to give “further effect to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for digital services and amending Directive 2000/31/EC (DigitalServices Act).”
The committee also heard that its purposes included amending the Broadcasting Act (2009) and the Competition and Consumer Protection Act (2014)and to provide for related matters.
Minister of State at the Department of Enterprise, Trade and Employment, Deputy Dara Calleary, told the committee “we are working towards enacting the DigitalServices Bill before the EU deadline of 17 February, when the EU Digital Services Act comes into full effect.”
He said the Bill was a technical piece of legislation – which “is necessary to give full effect to the supervision and enforcement provisions of the EU Act.”
While her party has signalled that it intends to support the Bill, Sinn Féin’s Louise O’Reilly on Wednesday expressed concerns about the legislation. She said that she did not see “why there is a need for such wide-ranging powers of regulation.”
“This is a very important piece of legislation that has huge and significant implications domestically and internationally within Europe,” she told the committee.
Regarding amendments to the Bill, she said: “Any changes to such an important piece of legislation should be brought through the Oireachtas so we can see and scrutinise the scope, scale and nature of what the Government of the day is attempting to do.
“This legislation has a particular impact on free speech and the public realm. We oppose section 3 because of the wide-ranging powers and the fact that we have shown ourselves capable, and the Minister of State’s officials have shown themselves capable of moving fast, being speedy and being agile. It strikes me that a lot of power is being concentrated in one place and this is a serious issue. For that reason, I oppose this section.”
‘DISCLOSING PERSONAL DATA A VERY SERIOUS MATTER’
While Deputy O’Reily said it was not her “intention to disrupt” the Bill, she had concerns about the legislation permitting Coimisiún na Meán and the Competition and the Consumer Protection Commission to process special category personal data and Article 10 data.
“I am struggling to understand scenarios in which these powers would be necessary for the Minister. Disclosing personal data is a very serious matter,” she said.
“Perhaps the Minister of State could outline a situation where it might happen so that I can better understand it. The disclosure of personal data to a body prescribed by the Minister gives the Minister the right to decide what is or is not proportionate and what is and is not relevant. I am not certain that putting this in primary legislation is necessary.
“I do not know why the Minister would need the powers through legislation to release personal information to further bodies. Perhaps if the Minister of State could give an example or we could have an engagement to tease through this,” she continued.
“My intention is not to obstruct this. We understand how important this is and we want to be constructive. However, it does worry me, not with regard to the Minister of State personally but another Minister might take a different view. This is very sensitive personal information. Once it is disclosed it cannot be undisclosed. We cannot unring a bell.”
“It seems the powers are very wide ranging. I am struggling to understand when they would be absolutely necessary. We should start from the principle that powers such as these would only be used in a scenario in which they are totally and completely necessary. It is personal data. I struggle to understand what those scenarios would look like.”
In response, Deputy Calleary said he “absolutely” accepted the spirit in which Deputy O’Reilly was coming from, adding: “I assure her we will do everything to protect personal data.”
However, he said: “There may be circumstances in which it is necessary. We will engage with Deputy O’Reilly’s team on some scenarios.”
The Sinn Fein TD, while raising concerns, emphasised that her objections were “to make the bill stronger and not to be obstructive.”
Deputy Calleary acknowledged that “a number of Deputies” had raised concerns regarding trusted flaggers.
“The Digital Services Act is prescriptive on both who can apply for this designation and the scope of the role. The role of a trusted flagger will be to flag illegal content or content that is incompatible with the terms and conditions of service of the provider – not objectionable content,” he said.
‘POTENTIAL ABUSE’ OF TRUSTED FLAGGER STATUS
However, Wednesday’s committee heard concerns around who exactly could apply for this role, and if vested interests could be at play.
Louise O’Reilly TD said that the trusted flagger system could not work if it was “in any way, shape of form seen to be partisan.” She said she felt there was “not enough” in the Bill to ensure this.
“We need to ensure that just cannot happen or, to the greatest extent possible, that it is stopped. We know there are entities that are quite capable of frustrating, being vexatious or taking vexatious complaints for the purpose of frustrating the activities of another organisation. That is what my amendments are seeking to do.”
The Sinn Fein politician said she had a “very serious concern” when it came to the “potential abuse” of the trusted flagger status.
Giving an example, she said: “Let us say we are talking about an entity with very fixed views in regard to women accessing healthcare. It uses its position as a respected entity or institute, or whatever we want to call it, to apply for trusted flagger status, to which there are no impediments given it is an educational establishment and does research and all of that.
“It may then use its status as a trusted flagger in a vexatious way to frustrate the work of an organisation on the other end; for example, an organisation that thinks that women should have access to healthcare. I just do not think there are enough checks and balances in place within the legislation to ensure that cannot be done.
“I know of organisations and entities that are on the one hand very respected and on the other hand would be quite capable of engaging in practices to frustrate the activities of entities that may be described as their opponents, or people who hold differing views to them, politically, morally or otherwise.”
Deputy Matt Shanahan said he shared some of the concerns outlined, as he asked what resources were being given to the issue of the potential for conflicts of interest.
“At the end of the day, those who control the information can control the output,” the Waterford Independent stated.
Elsewhere in Europe, concerns have been raised regarding the Digital Services Act, including by Swedish politician and former MEP, Jessica Stegrud. Writing in the Brussels Report in April 2022, Ms Stegrud penned that the Act “is undermining free speech.”
In the op-ed, she warned of monopolies “engaging in total surveillance, political bias and zealotry,” adding: “Today, we are faced with total control over the content we can distribute and consume. Immense technological barriers curtail market competition.”
Regarding the DSA, she said it was “troubling” that free expression was “completely out of focus”, adding: “The risks cited by the European Commission sees are primarily “the spread of illegal content and activities” and only in last order “limitations to express themselves”.
“Tech companies already naturally suppress content and suspend user accounts, and now they will do so more, as a result of heavy and swift fines provided for by the DSA. Arbitrary legislative categories like “harmful” or “undesired” will open all floodgates, as history teaches us,” the politician wrote.
She asserted that “everything that is legal offline should also be legal online,” urging:
“Within the digital world as well as in the physical world, the benchmark for every new piece of legislation should be, “does it promote freedom?”. That is a question which many fellow MEPs seem to have forgotten. Europe is the continent of The Enlightenment, so let liberty shine. In the face of old and new totalitarian threats, we must opt for freedom.”