knowledge 18 January 2022 |

Greenlight for Recruitment of New Online Safety Watchdog and Updated Bill Published

Scope of the new Bill

The Online Safety & Media Regulation Bill 2022 (the “OSMR Bill”) introduces large fines and potential criminal liability for senior management if certain online services fail to meet new online safety standards. The OSMR Bill will introduce a new regulatory regime for online safety in Ireland, establishing an Online Safety Commissioner to enforce compliance with online safety codes¹ and in tandem, implement the revised Audiovisual Media Services Directive² (the “AVMSD”). The AVMSD aims to regulate on-demand audio-visual media services, video-sharing platform services and social media providers where they monetise audio-visual content, including user-generated content.

The Government last week approved the publication of the updated OSMR Bill (found here) and gave the greenlight to begin the recruitment process of an Online Safety Commissioner. Once appointed, the independent Commissioner will be tasked with implementing, supervising and enforcing compliance by ‘designated online services’ with online safety codes. The Commissioner will work as part of a wider Media Commission, established to oversee regulations for broadcasting, video on-demand services and the new regulatory framework for online safety created by the OSMR Bill.

A Pre-Legislative Scrutiny report issued by the Joint Oireachtas Committee on Tourism, Culture, Arts, Sport and Media on 2 November 2021, made a total of 33 recommendations, most of which have been incorporated into the OSMR Bill, according to Minister Catherine Martin. These included changes to the operation of the content levy, advertising standards, regulation of illegal or harmful content and the role and independence of the Media Commission and Online Safety Commissioner.

Minister Martin is set to form an expert group to report on certain of the proposed amendments from the Joint Oireachtas Committee, in particular its suggestion to include an ‘individual complaints mechanism’ for harmful online content within the OSMR Bill. Once these issues and best practice by other regulators have been considered, Minister Martin intends to propose potential amendments to the OSMR Bill at Committee Stage and indicated that new legislation could be enacted by the summer recess.

Why is this important?

Ireland will have an important role in regulating the obligations of a number of global companies under the AVMSD with European headquarters based in Ireland, given the application of the internal market country of origin principle of the EU. This means that in principle, any relevant service established in Ireland will be regulated by the Media Commission on behalf of the whole of the EU.

Secondly, Ireland’s decision to implement the AVMSD alongside a pioneering regulatory framework for online safety as set out in the OSMR Bill is one of the first proposals worldwide for systemic online safety regulation. The Irish regulator will have oversight and enforcement powers over the internal systems and processes that online services are using to deliver and moderate user-generated content in Ireland– a very similar approach to the current draft of the Digital Services Act, currently making its way through the ordinary legislative process in Europe.

A key focus of the online safety provisions in the OSMR Bill is to protect minors, predominantly by targeting websites or social media platforms featuring criminal content, cyber-bullying, and content likely to promote eating disorders, self-harm or suicide (more detail on these provisions can be found in our earlier briefing here).  

How is “harmful online content” defined in the current draft of the Bill?

The OSMR Bill does not contain an exhaustive definition of “harmful online content” and currently covers four key areas³:

• criminal content;

• intimidating, threatening, humiliating or persecuting content (i.e. ‘cyberbullying’);

• content promoting eating disorders; and

• content promoting self-harm or suicide⁴. 

The Joint Committee has recommended to the Minister that the definitions of categories of harmful content should be amended to (i) exclude all reference to ‘intention’; and (ii) include disinformation and financial harm, to include gambling.

How will “online safety” be implemented in the current draft of the Bill?

The Online Safety Commissioner will have the power to request periodic information from ‘designated online services’ and to investigate their compliance with online safety codes, including conducting a ‘compliance assessment’ with the safety codes. The Online Safety Commissioner will also have the power to carry out audits and direct improvements to complaints handling mechanisms of designated online services and the Joint Committee has since recommended “quarterly” reporting to the regulator on complaints handling mechanisms.

In addition, online safety codes will outline how online video sharing services will be required to deal with harmful content, for example cyber-bullying, materials encouraging self-harm and criminally offensive content.

As part of its enforcement tool-kit, the Media Commission may issue a ‘compliance notice’ to require the removal or restoration of particular online material or to direct steps to be taken to bring the entity into compliance.  Failure by a designated online service to comply with the notice or to provide a satisfactory justification for such failure may result in the Media Commission issuing a ‘warning notice’, and failure to comply with a warning notice constitutes an offence and could lead to a financial sanction (discussed further below). Interestingly, before issuing a compliance notice, the OSMR Bill provides that the Media Commission may invite submissions from the actual uploader of the material and/or from the person who made the complaint.  It is not clear how this provision will work in practice.  

Enforcement and compliance by the Media Commission is intended to operate at a systems-level to ensure online service providers’ policies, procedures and systems are adequate and effective. Currently in the Bill there is currently no direct avenue for individual users of an online service to make a complaint to the Media Commission regarding harmful online content. The Joint Committee has however suggested that an ‘individual complaints mechanism’ should be included to better address the needs and protection of children and other vulnerable groups, to include effective takedown procedures. The OSMR Bill does provide for a “super-complaints” procedure whereby nominated organisations, such as charitable or representative bodies, can make complaints to the Online Safety Commissioner regarding recurrent or grave issues on a systemic basis, but responses to such complaints are not on an individual basis. Certain stakeholders have raised concerns regarding the effectiveness and resourcing of such a mechanism within the Media Commission and these proposals are to be closely considered by the expert group during the following months.

What are the financial and criminal penalties for non-compliance?

The OSMR Bill provides for administrative fines of up to €20,000,000 or 10% of global turnover (whichever is greater), subject to Court approval. The Media Commission can also apply to Court for a compliance order and, in the most serious cases, for a blocking order to disable internet access to the designated online service in question in Ireland.  As noted below, non-compliance can also lead to potential criminal liability for senior management.

Other key provisions

The finalised scheme of the OSMR Bill, updated in December 2020, introduced several important new provisions, including:

• funding for the new Media Commission by industry levy, including bringing video on-demand services and designated online services (who may previously have been exempt) under the jurisdiction of the Media Commission;

• creating greater regulatory alignment between traditional broadcasting services and video on-demand services;

• an obligation for professional video on-demand services which provide news and current affairs content to meet the same journalistic standards as required by television broadcasters;

• additional online safety provisions, including potential criminal liability for senior management for non-compliance where the designated online service fails to comply with a warning notice from the Online Safety Commissioner; and

• setting an upper limit of potential financial sanctions for non-compliance at €20m or 10% of turnover, whichever is higher.

• the establishment of an Online Safety Commissioner to enforce provisions of the OSMR Bill, within the Media Commission.

Comment

The OSMR Bill is an important and timely piece of legislation which seeks to introduce significant measures on the one hand to regulate the changing nature of media service providers as well as tackling the dissemination and escalation of harmful online content. It signals a desire to ensure that legislative reform in this area is both adequately funded and robustly enforced. 

At this stage it is unclear how the OSMR Bill will interact with the proposals under the Digital Services Act. Minister Martin has indicated that an updated OSMR Bill will likely be published before Easter 2022, presumably once the report of the expert group has been fully considered.

Also contributed by Eoin Galligan.