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Irish Media and Broadcasting Law Update - Summer 2020
Newly Formed Responsible Government Department
As part of the formation of Ireland’s new coalition Government in July 2020, responsibility for broadcasting regulation is being transferred from the former Department of Communications, Climate Action and Environment to the newly formed Department of Media, Tourism, Arts, Culture, Sports and the Gaeltacht. When this transfer is completed, the Department will focus on the implementation of new legislation which will overhaul the current media and broadcasting frameworks and establish a new regulator, the Media Commission.
New Proposed Legislation
Following a consultation process, the government published the General Scheme of the Online Safety and Media Regulation Bill 2019 (the “Bill”) to address the transposition of the revised Audiovisual Media Services Directive (EU) 2018/1808 (the “Revised AVMSD”) (as described in our recent article) that will have a substantial impact on media and broadcasting companies in Ireland. The Bill also addresses the Government commitment to establish a regulatory framework for online safety by amending the Broadcasting Act 2009.
Based on the Bill, the statements and submissions made during the consultation process and public engagement 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 and how this levy will be calculated.
It remains to be seen if Ireland will meet the Revised AVMSD transposition deadline of 19 September 2020 and it seems more likely that the Bill will be enacted in late 2020 or early 2021.
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. The Media Commission will be afforded various compliance and enforcement powers and its general tasks and functions will include overseeing the licensing programme for television broadcasting services and preparing online safety codes to be observed by service providers.
Under the Bill, it is proposed that this new Media Commission will take over responsibility for examining media mergers (Head 10 of the Bill), 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 subject to a two stage process: (i) competition review by the competition regulator and (ii) media plurality review by the former Department of Communications, Climate Action & Environment (may also be moved to new department).
EU Commission Publishes Guidelines on Revised AVMSD
In July 2020, the EU Commission (the “Commission”) published two sets of Guidelines to help Member States implement the Revised AVMSD. These were (i) Guidelines on European Works and (ii) Guidelines on video-sharing platforms.
Guidelines on European Works
The Revised AVMSD requires services providers to have at least a 30% share of European content in their catalogues. The newly published Guidelines on European Works provide information on the recommended methodology for the calculation of this 30% content share, as well as clarifying the definition of ‘low audience’ and ‘low turnover’ in respect of the thresholds for this minimum level content obligation on smaller service providers.
Guidelines on video-sharing platforms
In respect of the Revised AVMSD’s extension of standards on illegal and harmful content to video-sharing platforms, the Guidelines on video-sharing platforms provide information on the type of online services that fall under the scope of the European media framework, as well as indicators Member States can use when evaluating whether audiovisual content is an essential part of the online platform eg, the amount, use and reach of audiovisual content provided.
It is not yet clear what approach to implementing the Revised AVMSD will be taken in Ireland. However, we will be watching for developments and will issue a new update when the Bill is published in full.