Media

Regulatory and institutional structure

Summarise the regulatory framework for the media sector in your jurisdiction.

The broadcasting sector in Ireland is regulated by the Broadcasting Act 2009 (as amended) (the Broadcasting Act), which established a content regulator, the Broadcasting Authority of Ireland (BAI) and sets out the regulatory framework for the media and broadcasting sector in the state. The Commission for Communications Regulation’s (ComReg) role in respect of the broadcasting sector is limited to the issuing of licences under the Wireless Telegraphy Acts, in respect of wireless equipment and assignment of required radio spectrum. The Broadcasting Act and regulator are due to be modernised and changed in legislation expected to be published in 2021 – this will incorporate revised Directive 2010/13/EU (Audiovisual Media Services) into Irish law (Ireland missed the transposition deadline in September 2020).

Ownership restrictions

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Non-EU applicants for broadcasting contracts are required to have their place of residence or registered office within the European Union or as otherwise required by EU law.

The framework for the ownership and control policy of the BAI is set out in the Broadcasting Act, which requires the BAI, in awarding a sound broadcasting contract or television programme service contract (or consenting to a change of control of the holder of a broadcasting contract), to have regard, inter alia, to the desirability of allowing any person or group of persons to have control of or substantial interests in an ‘undue number’ of sound broadcasting services, or an ‘undue amount’ of communications media in a specified area. The BAI has also issued an ownership and control policy, setting out the regulatory approach that the BAI will take and the rules that will be enforced regarding ownership and control of broadcasting services. The policy will be used by the BAI to assess applications for broadcasting contracts and requests for variations to ownership and control structures of contract holders.

Media mergers must be notified to both the Irish Competition and Consumer Protection Commission (CCPC) and the Minister for Communications. The CCPC is responsible for carrying out the substantive competition review to determine whether the merger is likely to give rise to a substantial lessening of competition. It is the role of the Minister for Communications to assess ‘whether the result of the media merger will not be contrary to the public interest in protecting the plurality of the media in the State’ and this includes a review of ‘diversity of ownership and diversity of content’. The Competition Acts provide for a set of ‘relevant criteria’ by which the Minister for Communications must assess whether the media merger will be likely to affect the plurality of the media in the state. In particular, the relevant criteria include considering, inter alia, the undesirability of allowing one undertaking to hold significant interests within a sector of the media business, the promotion of media plurality and the adequacy of the existing state-funded broadcasters to protect the public interest in a plurality of the media in the state. The Department of Communications, Climate Action and Environment published Media Merger Guidelines in May 2015. In the interests of transparency, the Minister publishes summary details of the rationale for clearing media mergers.

Licensing requirements

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

The BAI is responsible for the licensing of the national television service, and content on digital, cable, multimedia displays and satellite systems. The licensing of content on these systems is an ongoing process with no time frame for applications, no competitive licensing process and one-off application fees (these depend on the licence being acquired but are typically less than €2,000).

The BAI is responsible for the licensing of independent radio broadcasting services in Ireland and Part 6 of the Broadcasting Act sets out the mechanism by which the BAI shall undertake the licensing process for commercial, community temporary and institutional radio services.

Foreign programmes and local content requirements

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

The European Communities (Audiovisual Media Services) Regulations 2010 (SI 258/2010) and the European Communities (Audiovisual Media Services) (Amendment) Regulations 2012 (SI 247/2012) (the AVMS Regulations) implement the Audiovisual Media Services Directive. The AVMS Regulations provide that broadcasters, where practicable and by appropriate means, must progressively reserve for European works a majority proportion of their transmission time (excluding the time appointed to news, sporting events, games, advertising and teletext services) having regard to their various public responsibilities.

In 2018, both the European Parliament and Council approved updates to the Audiovisual Media Services Directive, and this will lead to changes to the Irish regime following implementation. Draft legislation has been prepared by the Department of Environment, Climate Action and Communications (DECC) (implementing the revised directive and including ‘online harm’ additions) and this is being reviewed through the normal Irish legislative process. One fundamental change being proposed is the creation of a new regulator, the Media Commission, to regulate both linear and non-linear broadcasting.

The AVMS Regulations outline that, where practicable and by appropriate means, broadcasters must progressively reserve at least 10 per cent of their transmission time (excluding the time applied to news, sports events, games, advertising and teletext services) for European works created by producers who are independent of broadcasters, or reserve 10 per cent of their programming budget for European works that are created by producers who are independent of broadcasters, having regard to its various public responsibilities.

The AVMS Regulations require EU member states to ensure that on-demand audiovisual media services also promote European works; however, quotas for European works are not imposed on non-linear audiovisual services.

Advertising

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

The BAI is currently tasked with the development, review and revision of codes and rules concerning advertising standards to be observed by broadcasters, and consideration of and adjudication on complaints concerning material that is broadcast, including advertising. The Broadcasting Act provides that advertising codes must protect the interests of the audience and in particular, any advertising relating to matters of direct or indirect interest to children must protect the interests of children and their health. By way of example, the BAI has issued General and Children’s Commercial Communications Codes, including rules to be applied to the promotion of high fat, salt and sugar foods to children. Further rules are set out in the AVMS Regulations concerning ‘audiovisual commercial communications’ on on-demand services. The BAI’s General Commercial Communications Code sets out the rules with which Irish radio and television stations must comply when it comes to airing advertising, sponsorship, product placement and other forms of commercial communications.

The Broadcasting Act does not apply to broadcast services that are provided through the internet or to non-linear services, but this will change following the implementation of the revised Audiovisual Media Services Directive.

A voluntary self-regulatory code is also in operation and is administered by the Advertising Standards Authority of Ireland (ASAI), which sets out guidelines for advertising concerning a range of topics including food, financial services and business products. This code applies to online advertising. On 1 March 2016, the new ASAI Code of Standards for Advertising and Marketing Communications in Ireland came into effect. The updated Code features new sections on e-cigarettes and gambling and revised sections on food (including rules for advertisements addressed to children), health and beauty and environmental claims.

Further, broadcasters should observe relevant national and EU rules on advertising of specific types of products and services (eg, alcohol, tobacco, health foods, airfares, etc) and consumer protection rules on types of advertising practice permitted (eg, consumer information requirements, misleading information rules, etc).

Must-carry obligations

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

The Broadcasting Act requires ‘appropriate network providers’ to ensure, if requested, the retransmission by or through their appropriate network of each free-to-air television service provided for the time being by RTÉ, TG4 and TV3’s free-to-air service. An appropriate network is defined as an electronic communications network provided by a person, the ‘appropriate network provider’, that is used for the distribution or transmission of broadcasting services to the public. The appropriate network provider is not permitted to impose a charge for the above-mentioned channels.

A public service broadcasting charge was suggested by previous governments as a means of funding public broadcasting in light of the changing ways that viewers now access public service broadcasting. However, such plans have been shelved and, the current Minister for Communications recently announced that there was little chance of this being introduced and the government would not introduce the necessary enabling legislation.

Regulation of new media content

Is new media content and its delivery regulated differently from traditional broadcast media? How?

The Internet Services Providers Association of Ireland (ISPAI) has responsibility for supervising the ongoing evolution of self-regulation of the internet in Ireland and has set out guidelines in its Code of Practice and Ethics (the Code) that ISPAI members should take into account when operating.

In its statement of policy, the ISPAI acknowledges that its members must observe their legal obligation to remove illegal content when informed by organs of the state or as otherwise required by law. The general requirements of the Code issued by the ISPAI include a requirement on all members to use best endeavours to ensure that services (excluding third-party content) and promotional material do not contain anything that is illegal or is likely to mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. They must also ensure that services and promotional material are not used to promote or facilitate any practices that are contrary to Irish law, nor must any services contain material that incites violence, cruelty, racial hatred or prejudice or discrimination of any kind.

Members’ internet service providers are also required to register with www.hotline.ie, which is a notification service to facilitate the reporting of suspected breaches under the Child Trafficking and Pornography Act 1998 (as amended by the Child Trafficking and Pornography (Amendment) Act 2004) and the removal of illegal material from internet websites.

The On-Demand Audiovisual Media Services Code of Conduct is an industry developed code that covers on-demand audiovisual services in Ireland, addressing topics such as advertising, content standards and dispute resolution.

The regulation of new media content will change following the implementation of the revised Audiovisual Media Services Directive and the creation of the new regulator, the Media Commission. This will include expanding existing rules on content and advertising to new media and on-demand services and video-sharing platforms for the first time.

Digital switchover

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

The digital switchover occurred on 24 October 2012. The 800MHz band had been used for analogue terrestrial television services. This spectrum was auctioned off (along with the 900MHz and 1,800MHz spectrum) in autumn 2012 for use in electronic communications services (ECSs).

Digital formats

Does regulation restrict how broadcasters can use their spectrum?

As required by the legislative framework, ComReg has moved towards a position where it will issue licences on a technology and service-neutral basis and that new rights of use will issue on a service and technology neutral basis. For example, ComReg awarded the 3.6GHz spectrum band in 2017, following a lengthy consultation process on a service and technology neutral basis (ie, holders of the new rights of use may choose to provide any service capable of being delivered using the assigned spectrum). For instance, they could distribute television programming content, subject to complying with the relevant technical conditions and with any necessary broadcasting content authorisations or they could adopt some other use.

ComReg may, through licence conditions or otherwise, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for ECSs where this is necessary (eg, to avoid harmful interference and safeguard the efficient use of spectrum).

Media plurality

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

The Competition Acts 2002–2017 provide for special additional rules for ‘media mergers’ (ie, a merger or acquisition in which two or more of the undertakings involved carry on a media business in the state, or that one or more of the undertakings involved carries on a media business in the state and one or more of the undertakings involved carries on a media business elsewhere).

A ‘media business’ means the business (whether all or part of an undertaking’s business) of:

  • the publication of newspapers or periodicals consisting substantially of news and comment on current affairs, including the publication of such newspapers or periodicals on the internet;
  • transmitting, retransmitting or relaying a broadcasting service;
  • providing any programme material consisting substantially of news and comment on current affairs to a broadcasting service; or
  • making available on an electronic communications network any written, audiovisual or photographic material, consisting substantially of news and comment on current affairs, that is under the editorial control of the undertaking making such material available.

 

Media mergers are notifiable to both the CCPC and the Minister for Communications (regardless of the turnover of the undertakings concerned) to assess whether the media merger would be contrary to the public interest in protecting the plurality of the media in the state. The Competition Acts provide for a set of ‘relevant criteria’ by which the Minister for Communications must assess whether the media merger will be likely to affect the plurality of the media in the state. In particular, the relevant criteria include considering, inter alia, the undesirability of allowing one undertaking to hold significant interests within a sector of the media business, the promotion of media plurality and the adequacy of the existing state-funded broadcasters to protect the public interest in a plurality of the media in the state. The BAI may play a role in assessing media plurality should the transaction be referred to a Phase II process by the Minister for Communications.

In terms of steps the authorities may require companies to take as a result of a media merger review, the Minister for Communications may determine that the media merger be put into effect, determine that the media merger be put into effect subject to conditions or determine that the media merger may not be put into effect.

The DECC’s Media Merger Guidelines guide the media-merger process and the DECC now publishes information regarding its process and a summary of each media merger determination in the interests of transparency. There is an ongoing review of the media merger regime by the DECC.

In June 2019, the BAI published two new documents:

  • a policy on Media Plurality setting out how the BAI will support media plurality in the future. It sets out a definition for media plurality, outlines why media plurality is important, details policy objectives and outlines the measures the BAI takes and will take to promote and support media plurality in Ireland; and
  • the Ownership and Control Policy, which will be used by the BAI to assess requests for changes to the ownership and control of existing broadcasting services. The policy provides guidance and rules for the BAI when considering the desirability of allowing any person, or group of persons, to have control of, or substantial interests in, an undue number of media services in the Irish state.
Key trends and expected changes

Provide a summary of key emerging trends and hot topics in media regulation in your country.

There has been a marked increase in the number of media mergers in Ireland, a trend that can be seen across Europe as traditional media outlets need to consolidate to ensure continued survival in a difficult environment. There has only been one Phase II media merger in the Ireland, which involved the proposed acquisition of the Celtic Media Group by Independent News & Media and was referred to the BAI for a full media-merger examination (the first such media merger in the state). No ministerial decision was made by the Minister for Communications as the parties terminated the transaction during the lengthy process by mutual consent.

The primary legislative focus for the Department of Communications will be the implementation of the revised Audiovisual Media Services Directive, which may significantly impact on how non-traditional media companies and broadcasters operate in Ireland through enhanced regulation and potentially introducing a licensing regime for the first time. Concerning traditional broadcasters, it remains to be seen whether Ireland will impose financial contributions (direct investments or levies payable to a fund) on broadcasters and providers who are targeting their national audiences from other EU member states (the revised legislation leaves this decision to each EU member state’s discretion).

Law stated date

Correct on

Give the date on which the information above is accurate.

23 March 2020