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Implementation of the Audiovisual Media Service Directive: Update for Businesses

AUTHOR(S): Helen Kelly, Kate McKenna
PRACTICE AREA GROUP: EU, Competition and Regulatory
DATE: 19.03.2019

Further to our recent article on the new rules for broadcasters under the revised Audiovisual Media Service Directive (the “AVMSD”), the Minister for Communications  Climate Action and Environment has now published a  Consultation (and Explanatory Note) outlining his intention to enhance regulation through the implementation of the AVMSD and by creating a new set of online safety laws.  

The deadline for parties interested in responding to the Consultation is 15 April 2019 and it is broken down into the following parts:

1. Regulation of Video Sharing Platform Services (“VSPS”) such as YouTube; 

2. Enhanced regulation of On-Demand Services (“ODS”) such as Netflix;

3. Minor changes to the regulation of linear TV services (primarily in relation to content requirements derived from the AVMSD); and

4. Implementation of new online safety laws to apply to Irish residents. 

Currently the audiovisual rules (“AVMS Rules”) focus on linear (i.e. live programming) TV operators and the Broadcasting Authority of Ireland is only permitted to license and regulate television and radio broadcasters.  The enhanced regulation will likely have a significant impact on how VSPS and ODS businesses operate in Ireland as such businesses generally lie outside of the Irish broadcasting and licensing regime other than minor content obligations relating to sponsorship, product placement and the protection of minors. 
We include below a summary of the proposed changes and the input sought by the Minister:

1. Regulation of VSPS

VSPS relates to user generated content that is hosted by providers such as YouTube on their platform. VSPS businesses have no editorial control over the content itself but do have control over advertisements on the platform.  Previously VSPS providers operated outside of the AVMS rules and it will be interesting to see how the Minister intends to regulate such services (with no similar regulatory regime or precedent in Ireland to rely on).  The Minister is seeking input on;

  • how VSPS should be defined, 
  • how an Irish regulator(s) should review and monitor VSPSs in Ireland; and the sanctions / powers the new regulator(s) might have. 

2. Enhanced Regulation of ODS 

ODS relates to audiovisual content that is provided on a non-linear basis (i.e. where end users choose from a catalogue of programming rather than live programming). ODS providers are currently regulated under the AVMS rules relating to content but are not subject to Irish licensing requirements (unlike in other Member States).   The Minister is seeking input on;

  • how the relationship between the regulator and on-demand providers should be established (i.e. licensing regime);
  • whether the content rules should be uniform between linear and ODS; and 
  • whether ODS providers should have access to the current content production fund (currently available to linear operators. 

3. Minor changes to the regulation of linear TV services 

Linear broadcasters (i.e. live TV programming) will be subject to the revised AVMSD which outlines more prescriptive requirements relating to content, limitations on advertisements and the promotion of European works. The input sought from the Minister primarily focusses on ODS providers but the Minister is seeking input on whether the content rules should be uniform between linear and ODS providers.  

4. Implementation of new online safety laws to apply to Irish residents

The Minister is considering empowering a national regulator to ensure harmful content is removed from online platforms. The Minister’s suggestion of standalone online safety rules may be explained by a strong political focus on safety concerns rather than a legal view that Ireland’s future implementation of the AVMSD could not address these concerns.  It is not clear how such online safety rules would, in practice, only apply to ‘Irish residents’ (as the Explanatory Note seems to suggest). The Minister is seeking input in relation to;

  • what kind of system is required to do so (take down notices etc);
  • should there be a statutory appeal / statutory test to any regulator’s decision to remove content; and
  • how harmful content and online platform and services should be defined. The Minister envisages these laws would apply to all user generated content and outlines a number of powers that could be assigned to this regulator ranging from certification of compliance to civil administrative powers.

5. General

In relation to all of the above, the Minister is seeking input on;

  • How the future regulator(s) should be structured and provided a number of options to be considered: 
    • A newly restructured standalone Broadcasting Authority of Ireland as a Media Commission responsible for all the functions noted above; or
    • Setting up two regulatory bodies (one for editorial services and one for non-editorial services such as VSPS). 
  • The functions, powers and sanctions that should be available to the future regulator(s). The Minister outlines potential sanctions including publishing non-compliance notices, issuing administrative fines, issuing interim and final notices in relation to non-compliance and the ability to seek Court enforcement of same and the power to apply criminal sanctions. 

6. Comment

The Consultation is the first step towards a substantial modernisation of the Irish broadcasting regime which may potentially regulate new types of broadcasting services such as VSPS and ODS.  Should Ireland implement an attractive and modern regime for such services, this may be attractive to VSPS and ODS providers who are new to the EU or existing operators making Brexit-related establishments elsewhere within the EU. 

It remains to be seen if the Minister will impose financial contributions on linear and ODPS providers who are targeting Irish audiences from other Member States to generate greater revenues that may be provided to enhance Irish works. 

It will also be interesting to see how such modernisation of the broadcasting regime may ‘spill over’ into other areas of Irish law such as the media merger regime which underwent significant changes in 2014 (now applying the rules to online publications).  Where ODPS providers are fully regulated, the Minister might be more inclined to take the view that they are subject to the media merger rules in scenarios where the 2014 Competition and Consumer Protection Act leaves room for interpretation.  

Businesses should carefully review and consider making submissions to the Department. For further information regarding the Consultation, broadcasting law and regulation or to discuss responses to this consultation, please contact Helen Kelly, Head of EU, Competition & Regulatory Group helen.kelly@matheson.com, Kate McKenna, Partner, kate.mckenna@matheson.com or Simon Shinkwin, Associate simon.shinkwin@matheson.com
 

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