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knowledge 21 December 2023 |

Draft Online Safety Code Published

The recent publication by Coimisiún na Meán (“CnaM”) of a draft Online Safety Code for video-sharing platform services for public consultation is an important milestone in the evolution of the new legal regime that will apply to online content in Ireland. It is likely that CnaM will receive submissions from a wide range of stakeholders on its proposals and the various questions it has posed.

Video-sharing platform services providers who will be subject to this Code will have particular reason to consider making submissions, as once the Code is adopted it will be material to their businesses, with CnaM having the ability to impose fines of up to the greater of €20million or 10% of the relevant turnover of the provider for breaches of the Code.   

CnaM published a consultation document on its Draft Online Safety Code and related matters on 8 December.  It initially set a deadline of 19 January for making submissions but has extended this to 31 January 2024.  As CnaM explained in its press release:

“The draft Code sets out measures that designated video-sharing platforms will be obliged to implement to keep their users, especially children, safe online. These platforms will have to protect children from specific types of harmful content.  This includes cyberbullying; online content that promotes or encourages a feeding or eating disorder; and online content that promotes or encourages self-harm or suicide. The measures include using robust age verification technology to make sure that children are not exposed to inappropriate content, such as pornography. As part of these measures, parents must also be given the tools to ensure that children do not encounter illegal or harmful content online”.

In addition to inviting submissions on the draft Online Safety Code itself, CnaM has also invited submissions on draft statutory guidance materials, the application of the Online Safety Code to video-sharing platform services and providers and proposed supplementary measures for consideration in a future iteration of the Online Safety Code and guidance materials. CnaM explains in the consultation document that:

“These matters are under consideration by Coimisiún na Meán with a view to providing additional protections under Article 28b of the AVMS Directive, including potentially more detailed or stricter measures than those contained in Article 28b(3).”

There are 28 specific questions set out in the consultation document and respondents are invited to respond to all or a selection of these. They range from general questions (e.g. do you have any comments on specific sections of the draft Code) to more targeted questions (e.g. “What is your view on the requirements in the draft Code in relation to age verification?”).

In relation to the topic of age verification (which is a key issue in light of one of the main objectives of the Code being the protection of minors from harmful online content and age-inappropriate online content), the draft Code will require the implementation of “robust age verification techniques” in certain circumstances and “effective age verification techniques” in others.  In the draft statutory  guidance materials included in the consultation document, CnaM states the following in relation to age verification:

“The Code requires age verification techniques to be effective in ensuring that children are not normally able to access services or sections thereof that are devoted to adult content, and to be effective in ensuring that children are not normally able to view adult content on other services.

No age verification technique will be 100% effective but providers should minimise the error rate when children are misidentified as adults. The harm will be greatest if an error is made in the case of a child in their early teens and less if an error is made in the case of a child who is close to adulthood.

Robust age verification can include document-based age verification at sign up and selfie or live likeness based age verification on a per video or per session viewing basis. The use of a document plus a live selfie at account sign-up would be regarded as robust age verification; that other methods such as live selfie plus biometrics when content is accessed could also qualify as robust, as long as it was demonstrated that they provided an equivalent level of protection.

Other techniques such as self-declaration plus estimation based on use of the service are unlikely to be good enough to restrict access to pornography and extreme violent content. These may, however, be sufficient for preventing under-age users. Targets for effectiveness would have to be sufficiently high and effectiveness would need to be demonstrated to have been achieved.

Tokenised age services may be considered. Self-declaration is not considered by the Commission to be an effective form of age verification.”

VSPS providers and other stakeholders will have a lot to consider in light of this and similar draft guidance set out in the consultation documents.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.