In 2019 we published an update on the Audiovisual Media Services Directive (“the AVMSD”). Suffice it to say that it has not been implemented by the required September 2020 deadline. However, the Irish Government has recently published a general scheme for the Online Safety & Media Regulation Bill 2019.
The main provisions in the General Scheme of the OSMR Bill which amends the Broadcasting Act 2009 are:
- The establishment of a multi-person Media Commission, including an Online Safety Commissioner;
- The dissolution of the Broadcasting Authority of Ireland and the assignment of all the present functions of the Authority to the Media Commission;
- The transposition of the revised Audiovisual Media Services Directive, including those provisions of the Directive relating to the regulation of video sharing platform services;
- The establishment of a framework for the regulation of online safety to address the proliferation of harmful online content to be administered by an Online Safety Commissioner; and
- The provision to the Media Commission of appropriate compliance and sanction powers, including the power to seek the imposition of administrative financial sanctions.
The key powers given to the new Media Commission are that it will have powers to conduct investigations and inquiries, to impose administrative financial sanctions, to enter into settlements (subject to judicial confirmation) and the power to prosecute summary offences. The OSMR Bill also provides that the Media Commission may block an offending online service in Ireland.
In addition, the Media Commission will be responsible for drafting online safety codes which will govern standards and practices for online services including for content delivery and content moderation. For example, the code includes measures to be taken by online services to minimise the availability of harmful online content on their services and the Online Safety Commissioner will be able to issue a compliance notice to an online service.
The proposed Scheme confirms that there is no intention to define harmful content, rather descriptions of categories of harmful content will be set out. The Scheme provides that harmful content includes
(a) material which it is an criminal offence to disseminate under Irish [or Union law],
(b) material which is likely to have the effect of intimidating, threatening, humiliating or persecuting a person to which it pertains and which a reasonable person would conclude was the intention of its dissemination,
(c) material which is likely to encourage or promote eating disorders and which a reasonable person would conclude was the intention of its dissemination, and,
(d) material which is likely to encourage or promote [self-harm or suicide] or provides instructions on how to do so and which a reasonable person would conclude was: (i) the intention of its dissemination and (ii) that the intention of its dissemination was not to form part of philosophical, medical and political discourse.
Excluded categories of harmful material are those that are dealt with by other statutory bodies or laws. For example, harmful content does not include material that contains a defamatory statement. It is also noteworthy that fake news and disinformation have not been included as categories of harmful material.
We understand that a draft of the full OSMR Bill is due to be published imminently and before Christmas 2020 and that it will then move through the Irish parliamentary process. Obviously, the OSMR Bill will be of great concern to the providers of on-line services globally considering the number of such services that are managed from Ireland.
Once enacted, Video Sharing Platform Services (VSP) will have to regulate content that is considered “harmful material”, which will place a significant legal burden on VSPs. Although VSPs have yet to be designated by the Media Commission, the definition will most likely include social media platforms. As a result, the Irish Media Commission will have the significant task of regulating the platforms of the likes of those of the FANGS who have their headquarters in Ireland.