A New Age of Regulation - The Online Safety and Media Regulation Act 2022

Background
 
The tectonic shift in how media is produced and consumed has resulted in the enactment of the Online Safety and Media Regulation Act (the 'Act'), which amends the Broadcasting Act 2009.

Following years of consultations with relevant stakeholders, the Act was signed into law by President Higgins on 10 December 2022 and establishes a robust regulatory framework for online safety in response to the emergence of non-traditional and on-demand media so that regulation of these forms of media are on an equal footing with that of traditional media broadcasting.

The Act transposes the revised EU Audio-Visual Media Services Directive into Irish Law (Directive 2010/13/EU as amended by Directive (EU) 2018/1808. S.I. No 71/2023 – Online Safety and Media Regulation Act 2022 (Commencement Order) appoints 15 March 2023 as the day on which certain provisions of the Act shall come into operation.
 
Key Components
 
New Regulator
 
The Broadcasting Authority of Ireland will soon be dissolved and replaced with a new regulator, The Media Commission or Coimisiún na Meán ('the Commission').
 
Catherine Martin, The Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, recently appointed four new members to the Commission in February 2023. The Executive Chairperson will have overall responsibility for the Commission whilst an Online Safety Commissioner, Broadcasting Commissioner and Media Development Commissioner will have responsibility for regulation and compliance in each of their respective areas.   
 
Online Safety
 
The creation of the Online Safety Commissioner highlights how the new regulatory framework has responded to the ongoing development of online services.  Online services may include but is not limited to social media services, online gaming services and internet service providers. Such providers will be required to take appropriate measures to ensure they take appropriate steps to minimise the exposure of harmful online content to users.
 
Section 45 of the Act inserts Part 8A into the Broadcasting Act 2009, which relates to "Online Safety".

Online providers will have to familiarise themselves with sections 45 and 46 of the Act and what constitutes "harmful online content". Categories that fall under criminal law statutes are deemed harmful whereas a "risk test" must be applied to other  categories of online content, for example those which  promote or encourage self-harm or suicide, bullying and a feeding or eating disorder.
 
The Commission may designate a relevant online service as a service to which online safety codes may be applied. The Commission is required to designate as a category of online services, the video-sharing platform services (VSPS) the provider of which is under the jurisdiction of the State.
 
The Commission is also required to maintain and make available to the public a register of the services so designated.
 
The Commission is empowered under the Act to make binding online safety codes to hold designated online services to account in terms of how they tackle the availability of some of the most serious forms of harmful online content. The Commission is also empowered under the Act to order the removal or limitation of specific harmful online content.
 
The Commission may require the provider of a designated online service to provide the Commission with information relating to the provider's compliance with an online safety code. A failure by a provider of a designated online service to comply with an applicable online safety code shall be a contravention for the purposes of Part 8B.
 
The Commission may also make a scheme providing for the making and resolution of complaints referred to in section 139R of the Broadcasting Act 2009, as amended.
 
Audiovisual on-demand services
 
Audiovisual-on-demand (AVoD) media service providers will no longer be able to avail of the voluntary nature of regulation that existed prior to the commencement of the Act.  Section 9 of the Act, which inserts Part 3A into the Broadcasting Act 2009, obliges the Commission to establish and maintain a register of media service providers subject to registration.  A media service provider is subject to registration if it is under the jurisdiction of the State and provides an audiovisual on-demand service.
 
Section 10 of the Act, which inserts Part 3B into the Broadcasting Act 2009, empowers the Commission to make media service codes "governing the standards and practices of broadcasters and providers of audovisual on-demand media services" and to make media service rules.
 
Section 11 of the Act, which amends section 47 of the Broadcasting Act 2009, requires a broadcaster or provider of an audiovisual on-demand media service to give "due and adequate consideration to a complaint in writing", where the complaint is made in good faith and is not frivolous or vexatious. This places a duty on the service provider to ensure they have a robust and effective process for handling complaints. Section 12 of the Act, which substitutes a new s.48 into the Broadcasting Act 2009, makes provision for complaints to be made to the Commission about broadcasts or programme material.
 
Minister Martin advised that it would likely be 2024 before an individual complaints mechanism would be phased in. This should allow enough time for the Commission to refine how the complaints mechanism is to be resourced and funded.
 
Investigations and Sanctions
 
Section 47 of the Act inserts Part 8B into the Broadcasting Act 2009. Under this Part of Act, the Commission will have authorised officers at their disposal who will be appointed to investigate suspected non-compliance which if proven can result in financial sanctions of up to €20 million or 10% turnover of the non-complying party.
 
It is notable that the standard of proof provided for in Part 8B for decisions of the Commission is the civil standard of proof. A decision that a contravention has been committed or that an administrative sanction shall be imposed does not take effect unless confirmed by the Court
 
The Commission will also have the ability to block certain services and require the removal of harmful content.
 
Moving forward
 
The increased level of accountability which brings AVoD in line with traditional broadcasting services and VSPS providers under the jurisdiction of the state for the first time is likely to result in the numerous digital giants with headquarters in Dublin taking steps to appoint independent auditors to ensure compliance with the Act. We will comment further once the online safety codes have been established by the Commission and will provide an analysis on how this new age of regulation works in practice. 

Written by Sinéad Taaffe and Damien Watson.