Online safety is one of the headline items, and it will be overseen by the newly-established Media Commission (Coimisiún na Meán). The Bill also seeks to implement a number of other key legislative reforms including the transposition of the revised Audiovisual Media Services Directive and the alignment of the regulation of video on-demand services with traditional broadcasting.
The publication of this Bill follows input from and engagement with key stakeholders from the public, NGOs, companies and government organisations over the course of the last three years.
We have summarised some of the key aspects of the Bill below.
Creation of a new regulator
The Bill provides for the establishment of a new Media Commission in place of the Broadcasting Authority of Ireland (BAI). The Media Commission will include an Online Safety Commissioner who will be tasked with enforcing the online safety aspects of the legislation, as well as forthcoming EU legislation in the area (the Digital Services Act).
The Media Commission will have a broad range of functions. It will assume the BAI’s existing broadcaster regulator role; it will be responsible for regulating audiovisual on-demand media services as well video sharing platform services that are established in Ireland; and it will be the online safety regulator of other categories of online service provider as may be designated from time to time.
The Media Commission is positioned to become an important regulator of the technology sector, both in Ireland and the EU.
Transposition of the revised AVMS Directive
The Bill will transpose the revised AVMS Directive into Irish law. Consequently, both audiovisual on-demand media services and video-sharing platform services will be subject to enhanced regulation in line with the requirements of the revised AVMS Directive.
Online safety regulation
One of the main responsibilities of the Media Commission will be the formulation of Online Safety Codes, whose stated objective is to minimise the availability of “harmful online content”.
Only “designated” service providers will fall within the scope of the Online Safety Codes, which will be the primary mechanism for online safety regulation. The potential range of regulated service providers is very wide – any online service that facilitates user-generated content. Both private messaging and online storage services are potentially in scope.
Harmful online content
“Harmful online content” which will fall within scope of online safety regulation is proposed to encompass:
1. Content that is deemed illegal under a number of specific Irish criminal law statutes. The Bill identifies 40 offence specific categories which will come within scope.
2. Specific categories of harmful content which meet a certain risk threshold:
online content by which a person bullies or humiliates another person;
online content by which a person promotes or encourages behaviour that characterises a feeding or eating disorder;
online content by which a person promotes or encourages self-harm or suicide;
online content by which a person makes available knowledge of methods of self-harm or suicide.
Online safety codes
The content of online safety codes will not be known for some time, as they must await for the enactment of the Bill and the establishment of the Media Commission before the process for their promulgation can begin.
However, the Bill sets out certain matters which the Online Safety Codes may provide for, which gives an indication of their expected content:
Standards, practices and measures that service providers must follow including in relation to the moderation of content, or how it is delivered;
Assessments by service providers of the availability of harmful online content;
The making of reports; and
The handling of user complaints by service providers.
The Media Commission will create a scheme for notifications by nominated bodies regarding concerns they may have in relation to certain online safety matters they have identified with online service providers that fall within the scope of the Bill. The Media Commission will set out the functioning of the scheme in due course, including the procedure for applying for nomination and the matters which may be notified by the nominated bodies.
While the Bill does not address the issue of an individual complaints mechanism, Minister Catherine Martin has indicated that this is to be considered by an expert group which will provide recommendations within 90 days. It is possible that this could be tabled as an amendment to the Bill in due course.
Investigations, sanctions, enforcement
The Media Commission will have broad investigative and enforcement powers as regards online safety codes, not dissimilar to those of the Data Protection Commissioner. These will include powers to:
Search, seize and compel the production or preservation of material, and to conduct ‘oral hearings’ as part of the investigation process
Impose fines of up to €20million or 10% of relevant turnover in the financial year preceding the date of the decision
Appoint persons to carry out audits of complaints and internal complaint handling systems
Make injunction-style orders to end non-compliance with an online safety code
Block access to certain online services or audio-visual on-demand media services
Require a service provider to remove or disable access to certain harmful online content
The Bill is currently pending initiation and is expected to be introduced into the Houses of the Oireachtas in early 2022 for consideration. While we await publication of the updated Government Legislative Programme for the target enactment date, we expect that the Bill may become law as early as the second half of this year.
In the meantime, the Media Commission will be established on an administrative basis, and will start recruiting for key roles such as the Online Safety Commissioner.