The Online Safety and Media Regulation Bill (the “Bill”) was published on Wednesday 12 January 2022. The Bill will transpose the revised Audiovisual Media Services Directive (“AVMS”) into Irish law and in doing so will establish a new Irish regulator of traditional and online-only media, the Media Commission, with new criminal and civil enforcement powers.
The full consequences of the new Media Commission regime will not be clear until the Media Commission issues the below-described Rules and Codes and we hope that these will be subject to industry consultation . However, there will be more near-term consequences, including an obligation for all providers of audio-visual on-demand services in the State to register with the Media Commission within 3 months of its establishment.
Now that it has been published, the Bill will begin its passage through the two Houses of the Oireachtas, which could take up to a couple of months. Once the Bill is voted through the Oireachtas, it will become law and the Media Commission, including an Online Safety Commissioner, will be established.
Transposition of the Revised Audio Visual Media Services Directive and Establishment of a Media Commission
By transposing the AVMS Directive, the Bill will replace the Broadcasting Authority of Ireland with a multi-personal Media Commission with the responsibility to oversee updated regulations for broadcasting and video on-demand services. This will update the way in which television broadcasting services and video on-demand services are regulated, to ensure greater regulatory alignment between traditional linear TV and video on-demand services, such as RTÉ Player and Apple TV.
The Commission will establish and maintain a register of media service for all audiovisual on-demand media services in the jurisdiction. All providers subject to registration at the date of coming into operation of Part 3 of the Act must notify the Commission not later than the end of the transitional period of 3 months from that date. Following this, the Bill will empower the Media Commission to direct an unregistered on-demand audiovisual media service to make an application for entry into the registry and make it a criminal offence to fail to comply with a direction of the Media Commission to make such an application.
The Introduction of Media Codes and Rules
The Media Commission will also create binding Media Codes and Rules reflecting the standards that audiovisual services must adhere to in relation to programme content, and may investigate the compliance of audiovisual media services with Media Codes, Media Rules, on its own initiative or on the basis of a complaint. The Media Commission will have the power to seek the imposition of a number of sanctions on a non-compliant on-demand audiovisual media service, in the event that they have failed to comply with a warning notice. It will also have the power to seek the prosecution of senior management of designated online services for failure to comply with a notice to end non-compliance.
The Media Commission will also have the power to issue rules imposing a levy on registered providers’ Irish revenue, which would be used to fund its regulatory activities and new grant schemes for Irish media production. However, this power will not be exercised until there is a full review and consultation on its merits and it is not intended that a levy would be imposed on providers with a minimal Irish presence.
As provided for in the Broadcasting Act, 2009, television broadcasting services are regulated on a contractual basis and non-compliance by such services with Media Codes and Media Rules may be pursued by the Media Commission as a breach of contract. Non-compliance with these obligations will be dealt with through a stepped process of compliance and warning notices. Ultimately, non-compliance with a warning notice is a criminal offence.
Amongst the Media Codes and Rules to be enforced by the Media Commission is the new 30% quota for European Works in the catalogues of video on-demand services, alongside a content production levy and content production scheme to support the creation of European Works, including independent Irish productions.
This will translate into an obligation for video on-demand services, such as Apple TV or Disney Plus, to meet a quota of 30% and ensure the prominence of European content in their catalogues, and is to be regulated across Europe depending on the country where the company is based. Ireland will be responsible for regulating a significant number of these companies due to the fact that is home to the headquarters of a number of social media companies such as Apple and Google. It will be considered a criminal offence for an on-demand audiovisual media service to not comply with this obligation and the relevant rules it its application.
Powers and Sanctions Available to the Media Commission
Sanctions available to the Media Commission to seek are:
- The imposition of a financial sanction of up to €20 million or 10% of turnover;
- Compelling a designated online service to take certain specified actions;
- Removing an on-demand audiovisual media service from the registry of such services, or;
- Blocking access to a designated online service in Ireland.
Due to constitutional limitations on the powers of regulatory bodies in Ireland, the imposition of any of these sanctions requires the confirmation of a Court. As television broadcasting services are regulated on a contractual basis, a different set of sanctions are available to the Media Commission. This includes revocation of a contract or an administrative financial sanction, the latter of which is subject to court confirmation.
Additional powers awarded to the Media Commission will include the power:
- to require the provision of information from regulated services;
- to issue content limitation notices to designated online services in respect of individual pieces of harmful online content;
- to impose industry levies.
Establishment of a Regulatory Framework for Online Safety
The Bill will establish a regulatory framework for online safety, by defining “harmful online content” with reference to defined categories of content, including a category containing a schedule of criminal offences and three further categories relating to cyberbullying, the promotion of suicide and self-harm, and the promotion of eating disorders.
As part of the framework, binding online safety codes will be created to tackle the availability of harmful online content, this will be done through content moderation, complaints handling recommendation systems, and advertising. This is in conjunction with non-binding online safety guidance materials and advisory notes in order to foster a safety-first culture of compliance. Systemic issues will also be brought to the attention of the Media Commission through the creation of a “super-complaints” scheme working in tandem with nominated bodies, including expert NGOs in areas such as child protection.
The published Bill addresses the majority of the 33 recommendations of the Joint Oireachtas Committee on Tourism, Culture, Arts, Sports and Media in their pre-legislative scrutiny report of the General Scheme of the Bill. This includes recommendations in relation to better defining harmful online content, reporting requirements for online services, a bigger role for the Media Commission in education and the independence and resourcing of the Commission.
The Minister intends to address a number of further recommendations through potential amendments at Committee Stage. This includes the recommendations to include the provision for an individual complaints mechanism for harmful online content. These recommendations raise a number of complex practical and legal issues, including in relation to scalability, due process and timeliness. In order to ensure that these matters are fully considered, the Minister intends to establish an expert group which will consider these issues and best practices by other regulators. The group will then report to the Minister within 90 days with recommendations for how to address these issues.