Major Changes to Irish Media Regulation
Online Safety and Media Regulation Act 2022
Signed into law on 10 December 2022, Michael Byrne explores this legislation which aims to modernise the regulation of the media ecosystem in Ireland.
The Online Safety and Media Regulation Act 2022 (the "OSMR Act") was signed into law on 10 December 2022 by President Michael D. Higgins.
The OSMR Act has been described as a crucial piece of legislation which aims to modernise the regulation of the media ecosystem in Ireland[1]. Its introduction brings about a complete overhaul of its predecessor legislation, the Broadcasting Act 2009 and will have very significant consequences for the Irish media industry (including online and social media). This includes the establishment of the Media Commission, with which audiovisual on-demand service providers will be required to register within three months of its establishment.
Background to the OSMR Act
The Online Safety and Media Regulation Bill (the "OSMR Bill") was first published on 12 January 2022, as reported upon by our colleagues here.
The OSMR Act, now signed into law, makes some amendments to the Bill (as outlined below). The Act both (a) transposes the EU's revised Audiovisual Media Services Directive, aligning the regulation of video on-demand and steaming services with the regulation of traditional television broadcasting services and (b) incorporates elements of the Broadcasting (Amendment) Bill 2019, providing for a number of measures to support local community and independent broadcasters.
The OSMR Bill vs the OSMR Act
During the legislative process, a number of amendments were made to the OSMR Bill by the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Minister Catherine Martin. The main substantive amendment was to explicitly provide for the role of the Online Safety Commissioner. While the Bill provided for a number of different commissioners within the Media Commission, the amendments introduced require that one such commissioner will be specifically designated as an Online Safety Commissioner, who will have primary responsibility for enforcing the regulatory framework for online safety.
Key Features of the OSMR Act
1. Establishment of the Media Commission
The OSMR Act establishes a new regulator, the Media Commission / Coimisiún na Meán, in replacement of its predecessor, the Broadcasting Authority of Ireland (the "BAI").
The Media Commission is to assume the existing functions of the BAI, as well as the new role of media watchdog overseeing regulation of audio-visual on-demand media services, video sharing platforms and other online service providers.
The Media Commission has been given a suite of robust compliance and enforcement powers to enforce the new and updated regulatory frameworks.
The Media Commission has two principal areas of responsibility;
- (i) Online Safety and;
- (ii) Media Regulation. Importantly, the Media Commission will also be Ireland's designated regulator under the EU Digital Services Act.
The Media Commission will also have the power to impose a levy on registered providers’ Irish revenue, which may be used to fund its regulatory activities and new grant schemes for Irish media production.
However, this power will not be exercised until there is a full review and consultation on its merits and it is not intended that a levy would be imposed on providers with a minimal Irish presence.
2. Online Safety
The OSMR Act seeks to confront the risks associated with user-generated content platforms such as bullying, harassment and image-based abuse, by bringing an end to what Minister Martin described as an "era of self-regulation".
For the first time in Irish law, it introduces a regulatory framework for online safety, in which, according to Minister Martin, "online services will be held to account when the public, and in particular children, are not appropriately shielded from harmful online content". Harmful online content is defined in the OSMR Act as follows;
- "offence-specific" content, i.e. content which is illegal under criminal law statute. Schedule 3 of the OSMR Act identifies 42 categories of online content which are already criminalised under various criminal law statutes;
- content involving the bullying of another person;
- content which promotes eating or feeding disorders;
- content which promotes self-harm or suicide; and
- content which gives rise to a risk to a person's life or risk of harm to a person's physical / mental health, where such harm is reasonably foreseeable.
The online safety regulation framework will be overseen by the Online Safety Commissioner and will apply to 'designated online services'. Video-sharing platforms automatically become designated online services and the Commissioner has the power to further designate any online services which facilitate access to user-generated content.
3. Codes and Rules
The Online Safety Commissioner will have the power to make binding online safety codes to tackle the availability of harmful online content. The online safety codes will not be known for some time, however the Act gives an indication of what the requirements for service providers may be, including requirements:
- to adhere to standards and practises for the moderation of content;
- to conduct self-assessments into the availability of harmful online content on their platforms; and
- to set up internal mechanisms user complaints handling mechanisms and reporting obligations.
The Online Safety Commissioner is also empowered to introduce an individual complaints mechanism on a phased basis, focusing initially on children, and to order the removal or limitation of availability of specific items of harmful online content, either following a complaint or on its own initiative.
In addition to online safety codes, the Media Commission is empowered to make binding media service codes and rules governing the standards and practices of broadcasters and providers of audiovisual on-demand media services.
Before these codes and rules become binding they must be approved by the Minister, who is required to lay them before both Houses of the Oireachtas (Irish parliament).
In the case of media rules and codes, there must be a consultation period in which concerned persons can make submissions to the Media Commission. The OSMR Act does not provide for consultation or submissions in respect of online safety codes.
Investigative and Enforcement powers
The Media Commission will have a wide range investigative and enforcement powers, including the powers:
- to conduct an investigation into suspected non-compliance and to search / seize / compel the production or preservation of material in relation to an investigation;
- to conduct oral hearings in connection with an investigation;
- to impose fines of up to €20 million or 10% of annual turnover (whichever is greater);
- to compel service providers to take certain specified actions (ie, to comply with online safety codes, to remove certain harmful content); and
- to block access to certain online services or audio-visual on-demand media services.
Online Service providers which remain in breach of the Media Commission's rules may ultimately be subject to criminal prosecution, including the criminal prosecution of individuals within senior management.
What's next
On 17 January 2023, Minister Martin announced the appointment of three Commissioners (including the Online Safety Commissioner) and the Executive Chairperson of the Media Commission. The Commissioners and Executive Chairperson took up their duties on an administrative basis on 13 February 2023. On 22 February 2023, Minister Martin signed two Ministerial Orders formally establishing the Media Commission as a statutory body with effect from 15 March 2023 and commencing sections of the OSMR Act empowering the Media Commission to establish a new regulatory framework for online safety, among other things[2].
Now that the establishment of the Media Commission has been confirmed as effective from 15 March 2023, we can expect to see the publication of the online safety and media codes in the near future, providing further clarity regarding the obligations for online and audiovisual on-demand service providers. We can also expect to see further legislation enacted in this area, with Minister Martin describing the OSMR Act as "the first step in what will be a rolling legislative programme in this space over the coming years".
The author would like to credit Rhona Barry, trainee solicitor, for her support and assistance in researching and producing this article.
References
[1] Catherine Martin, Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Press Release 10 December 2022.
[2] Catherine Martin, Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Press Release 22 February 2023.
