Newly Formed Responsible Government Department
We have recently seen completion of the transfer of responsibility for broadcasting regulation from the former Department of Communications, Climate Action and Environment to the newly formed Department of Media, Tourism, Arts, Culture, Sports and the Gaeltacht.
The new Department is continuing to focus on implementation of new legislation which will significantly extend the scope of Irish broadcasting law and establish a new regulator, the Media Commission, namely the Online Safety and Media Regulation Bill (the “Bill”).
The Bill is currently subject to pre-legislative scrutiny by a Joint Oireachtas / Parliamentary Committee, and is expected to come into force in the second half of 2021.
New Proposed Legislation
Following a consultation process, the government published a general scheme for the Bill in December 2020. The Bill is intended to address both the overdue transposition of the revised Audiovisual Media Services Directive (EU) 2018/1808 (the “Revised AVMSD”), and the Government commitment to establish a regulatory framework for online safety, by amending the Broadcasting Act 2009.
Based on what has been publicised to date, some of the expected key aspects of the Bill and Ireland’s implementation of the Revised AVMSD include:
- focus of the new legislation is on online safety and regulating harmful content, rather than extending the regime around licensing.
- on-demand services are likely to be subject to a ‘registration’ rather than a licensing system;
- linear TV services will continue to be subject to a licensing system;
- it is not yet clear whether on-demand and linear services will be subject to the same ‘broadcasting codes’ (the source of the majority of detailed rules on content and commercialisation), and
- it is not yet clear what range of services will be subject to a levy for funding the Irish regulator / the creation of European works and how this levy will be calculated.
Establishment of a new Media Commission Regulator
The Bill outlines that the Broadcasting Authority of Ireland (“BAI”) will be dissolved and replaced by a Media Commission, which will be tasked with regulating digital safety and the audiovisual sector going forward. This Media Commission will inherit all existing functions of the BAI as well as the transfer of all BAI personnel. An Online Safety Commissioner with specific responsibility for overseeing the regulatory framework for online safety will also be established within the Media Commission.
The Media Commission will be afforded various compliance and enforcement powers, including the power to impose a Court-approved fine of up to the higher of €20m or 10% of an undertaking’s turnover .Its general tasks and functions will include overseeing the licensing programme for television broadcasting services, overseeing registration and compliance by on-demand services, and preparing online safety codes to be observed by certain service providers.
Under the Bill, it is proposed that this new Media Commission will take over responsibility for examining media mergers, which is likely to mean it will assume the current role of the BAI in relation to Phase 2 media mergers.
By way of reminder, media mergers are currently subject to a two stage process: (i) competition review by the competent EU/Irish competition regulator and (ii) media plurality review, firstly by the Minister (Phase 1) and potentially then by the BAI (Phase 2).