knowledge 10 January 2020 |

General Scheme of the Online Safety & Media Regulation Bill 2019 published, ending the era of self-regulation for online media in Ireland

The Scheme addresses three main concerns: cyber bullying, material that promotes self-harm or suicide, and material that could cause a risk to health by promoting nutritional deprivation.  It is proposed that any content falling within these will be dealt with under the same legislative framework as criminal material.

The proposed Bill permits the new Media Commission to impose the following obligations on internet service providers (ISPs), amongst others, in certain circumstances:

• implement an Online Safety Code to provide clarity around matters such as the making of complaints and requesting the removal of online content;
• develop minimum standards for the regulation of online material to ensure that inappropriate content is flagged in such a manner that ISPs or regulators can act swiftly; and
• make safety a foundation of new platforms by combining technology with human intervention.  This will look to phase Artificial Intelligence (AI) initiatives into the market over time while ensuring that there is some level of human understanding within the procedure.

The Scheme is the outcome of consultations held by The Department of Communications, Climate Action and Environment in respect of the proposed legislation and outlines a national system of oversight of social media companies overseen by a new Online Safety Commissioner.

The stated objectives of the now published Scheme include greater protection for Irish residents while using online platforms and guidelines based on current EU Directives for more stringent regulation of those providing online streaming, file sharing, audio-visual and traditional television services.

The proposed legislation will amend the Broadcasting Act 2009 and will also implement the revised Audiovisual Media Services Directive¹ (the “revised AVMSD”) which Member States are required to implement by 19 September 2020.   

The Broadcasting Authority of Ireland will be dissolved and a new Media Commission established. This will have functions relating to the regulation of audiovisual media services, including audiovisual broadcasting services, on-demand audiovisual media services, the regulation of sound media services, including sound broadcasting services, and the regulation of designated online services.  One of the key functions of the new Media Commission will be to provide a regulatory framework that takes account of the rapidly changing technological environment and provides for rules to be applied in a proportionate, consistent and fair manner across all regulated services, having regard to the differing nature of those services. 

Audiovisual media services /ISPs should note that the Scheme proposes to introduce a range of enforcement measures under the ambit of the new Media Commission, including powers to:

• issue notices and warnings;
• devise, implement, monitor and review codes, including codes of practice;
• conduct investigations and inquiries;
• appoint authorised officers to carry out investigations;
• impose administrative financial sanctions, subject to court confirmation, and enter into settlement arrangements;
• prosecute summary offences;
• convey licenses to television broadcasting services; and
• operate a registration system for on demand audio-visual media services.

These powers may be exercised in respect of all ISPs that are established in Ireland, without the need for further intervention by other EU regulators.

The Scheme builds on the revised AVMSD by regulating the platforms that video share and provide on-demand and/or traditional television services.  The revised AVMSD sets out a core set of principles to protect against online harm and entrusts a regulator to uphold such principles.  The proposed Bill goes further by seeking to incorporate the regulation of video sharing platform services envisaged by the revised AVMSD, thus ensuring that audiovisual media services have appropriate measures in place, such as age verification and parental restrictions, as well as a robust complaints process for users.  This may require audiovisual media services to abide by online safety codes in respect of matters not envisaged by the revised AVMSD and may also require non-audiovisual media services to abide by online safety codes in certain circumstances.

Comment

Audiovisual media services/ISPs should familiarise themselves with the requirements that may be imposed under the new legislative regime and take note of the sanctions and enforcement measures, which could include criminal penalties for non-compliance.  In particular, once their obligations become clear audiovisual media services/ISPs should prioritise implementing an online safety code and establishing mechanisms to monitor online material to ensure that inappropriate content is flagged swiftly.  The new measures are wide-ranging and affect not only traditional media broadcasters but also many audiovisual media services/ISPs who may have previously been able to self-regulate.