The Online Safety and Media Regulation Bill (the Bill), which represents a major update to media and content regulation in Ireland, has at last begun its passage through the Houses of the Oireachtas (Irish parliament). We note 10 key points in relation to the Bill. These are:
- The Bill, which was initiated on 25 January 2022, is long overdue. The then Minister for Communications first consulted on the proposals almost three years ago and the Bill is intended to transpose the revised Audiovisual Media Services Directive (AVMSD), the deadline for which expired over 16 months ago. The European Commission has since launched infringement proceedings against Ireland for failing to transpose the revised AVMSD and Ireland is now one of only seven Member States yet to do so.
- The Bill creates a powerful new Media Commission with strong investigative and enforcement powers, including the ability to impose financial sanctions of up to 10% of turnover, block access to entire services and require the removal of content.
- In transposing the revised AVMSD, the Bill will bring video-sharing platform services (VSPS) like YouTube within the scope of regulation for the first time. It will also further align the regulation of TV broadcasting and video-on-demand (VoD) services.
- VoD services have, to date, largely enjoyed a voluntary regulatory regime. However, they will now have to comply with binding media codes and rules covering a range of matters from commercial communications and protection of minors to news and current affairs content, as is already the case for broadcasting services. VoD providers will also be required to register their services for the first time.
- The Bill introduces for the first time in Ireland an online safety regime (OSR) which will apply to VSPS and any other online services which have been designated by the Media Commission. Any online service on which user generated content is made available can potentially be designated, from social media and online gaming to private messaging services. However, it is worth noting that the latter can only be regulated vis-à-vis criminalised content.
- The OSR will focus on the spread and amplification of ‘harmful online content’ (HOC). HOC is defined in the Bill as including: certain criminalised content, content which comprises cyberbullying/online humiliation, content encouraging or promoting eating disorders, and content encouraging, promoting, or making available knowledge of self-harm or suicide. These categories can be added to over time. The above non-criminal categories now also incorporate a ‘risk test’ and any question over whether content is HOC is to be determined on the ‘balance of probabilities’, i.e., on a ‘more likely than not’ basis.
- Regulation under the OSR will mainly be through binding online safety codes dealing with a range of matters relating to content delivery and moderation, including matters set out in the revised AVMSD.
- Under the AVMSD country-of-origin principle, the Media Commission will have EU-wide responsibility in the new area of VSPS regulation.
- The Bill incorporates most of the recommendations made by a Joint Oireachtas Committee (JOC) in its November 2021 report on the Bill. However, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media has delayed making a decision on what the JOC considers its most important recommendation: to include some form of individual complaints mechanism in the OSR, in addition to the ‘super-complaints scheme’ already provided for. Instead, the Minister has established an expert group to consider this issue and to report within 90 days.
- In its report, the JOC also highlighted that some provisions in the Bill overlap and potentially conflict with the draft EU Digital Services Act (DSA). It, therefore, recommended that a full review be conducted of the potential areas of overlap. One can, therefore, expect the DSA to be raised and discussed by lawmakers as the Bill makes its way through the Oireachtas.
Initiation of the long-awaited Bill is very much welcome. It must now make its way through both Houses of the Oireachtas before it can be enacted, which will likely take a number of months. Meanwhile, the recruitment process for key Media Commission roles such as an Online Safety Commissioner have begun in earnest.