New provisions to the General Scheme of the Online Safety and Media Regulation Bill include:
Updating the legislation for how television broadcasting services and video on-demand services are regulated
Funding of the Media Commission by industry levy
Additional online safety provisions, including one regarding potential criminal liability for senior management for non-compliance
The setting of the upper limit of potential financial sanctions for non-compliance at €20m or 10% of turnover, whichever is higher
The Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Catherine Martin, T.D., today published the finalised General Scheme of the Online Safety and Media Regulation Bill.
The General Scheme was approved by Government on 9th January 2020. Today, it has been added to with extra provisions regarding the funding of the Media Commission, regulation of audiovisual media services, upper thresholds for financial sanctions, establishment of a content production levy, and criminal liability for senior management under the regulatory framework for online safety.
Minister Martin secured Government approval for the finalised General Scheme and said:
“I am pleased to see progress in relation to this important piece of legislation. Among other things, the Online Safety and Media Regulation Bill will introduce a fair, proportionate regulatory framework for online safety, encompassing the regulation of certain online services, including social media companies.”
Minister Martin continued:
“Under the regulatory framework for online safety, regulated online services will be required to implement measures to protect children and the wider population from exposure to various categories of potentially harmful online content. These categories include cyber-bullying and certain material promoting eating disorders, self-harm or suicide.”
Funding of the Media Commission
The General Scheme proposes funding the regulatory activities of the new Media Commission through the introduction of industry levies. While more traditional broadcasters in television and radio will simply be paying a levy to the Media Commission as opposed to the Broadcasting Authority of Ireland, video on-demand services and designated online services will be brought under the jurisdiction of the Media Commission and as a result, also be subject to industry levies.
Minister Martin added:
“The use of industry levies is a common approach among regulators in Ireland and will help to ensure the independence of the Media Commission. Furthermore, it is essential that the funding model is adaptable. Crucially, the proposed model will allow the Regulator to amend the levy and respond to changing circumstances.”
Regulatory framework for audiovisual media services
The General Scheme sets out a regulatory framework for audiovisual media services. In line with the revised Audiovisual Media Services Directive, this framework will ensure a greater regulatory alignment of television and video on-demand services such as RTÉ Player, Apple TV and the film section of the Google Play Store.
Minister Martin highlighted the importance of extending the role of the Media Commission and the scope of services subject to regulation:
“For many years light touch regulation has been the norm for video on-demand services. The Online Safety and Media Regulation Bill will establish more appropriate regulation of these services and ensure that they are subjected to similar regulatory obligations as television broadcasters.”
Upper Thresholds for Administrative Financial Sanctions
The use of Administrative Financial Sanctions as a potential sanction (subject to High Court approval and any appeal) was approved as part of the 9th January publication. An additional provision sets the upper threshold for administrative financial sanctions at €20m or 10% of turnover, whichever is higher. In setting this threshold, consideration was given to similar measures in place under other legislation such as the Data Protection Act 2018 and the relevant Central Bank legislation.
Minister Martin stated that:
“In some circumstances, the Media Commission will have a role in regulating certain companies with European Headquarters established in Ireland on a pan-EU basis. This includes a number of major global companies such as Apple, YouTube and Facebook. For this reason, potential financial sanctions must act as a suitable deterrent and be sufficient to prevent any companies of this scale gaining an economic benefit as a result of non-compliance.”
Establishment of a Content Production Levy
The General Scheme proposes the introduction of a content production levy on audiovisual media services established in Ireland and those which are established in other EU Member States but target audiences in Ireland. The levy would be administered by the Media Commission but the relevant provisions would not be commenced by the Minister until the Media Commission has carried out research indicating its viability.
Minister Martin added:
“Among other things, a content production levy has the potential to support the production of quality Irish content. However, prior to its introduction research would be undertaken to demonstrate that the levy would be of sufficient benefit and provide meaningful support to the production of Irish content.”
Notes to Editor:
General Scheme – 9th January Provisions
The General Scheme was approved by Government on 9th January 2020 and provisions include the:
Dissolution of the Broadcasting Authority of Ireland and establishment of a multi-person Media Commission, including an Online Safety Commissioner;
Establishment of a robust regulatory framework to deal with the spread and amplification of certain defined categories of harmful online content, to be overseen by the Online Safety Commissioner;
Granting to the Media Commission of appropriate compliance and sanction powers over designated online services including the power to seek the imposition of administrative financial sanctions; and,
Incorporation of Video-Sharing Platform Services into Irish law under the regulatory framework for online safety, thereby implementing parts of the revised Audiovisual Media Services Directive.
Implementation of the revised Audiovisual Media Services Directive
In addition to the introduction of a regulatory regime for video on-demand services, the finalised General Scheme will also provide for the following matters as part of the implementation of the revised Audiovisual Media Services Directive:
A requirement for video on-demand services to register with the Media Commission to allow an up-to-date list of such services to be maintained;
An obligation for video on-demand services to meet a quota of 30% European Works and ensure the prominence of such content in their catalogues;
An obligation for professional video on-demand services which provide news and current affairs content to meet the same journalistic standards as required by television broadcasters;
The introduction of more flexibility for where commercial television broadcasting services can use the advertising minutage available to them, moving from up to 20% of an hour every hour to up to 20% of the time over the periods running from 06.00 to 18:00 and from 18:00 to 24:00;
A provision for the introduction of a levy on audiovisual media services providing services in Ireland to fund audiovisual content production in Ireland, subject to further research and recommendations by the Media Commission and a commencement order by the Minister.
Criminal Liability for Senior Management
The finalised General Scheme includes a provision allowing the Director of Public Prosecutions to seek to hold influential position holders in a designated online service criminally liable in cases where the designated online service fails to comply with a warning notice from the Online Safety Commissioner.
The finalised General Scheme was forwarded today to the Office of the Attorney General so that they may continue detailed drafting of the Bill. The finalised General Scheme was also referred to the relevant Joint Oireachtas Committee for pre-legislative scrutiny.
To ensure compliance with EU law regarding regulation on online services, the European Commission will be notified of certain provisions contained within the finalised General Scheme. The European Commission, as well as Member States, will have an opportunity to comment or provide detailed opinions on the General Scheme prior to enactment. The European Commission may block the implementation of the proposed Bill if they deem it to not be compliant with EU law.
General Scheme of the proposed Online Safety and Media Regulation Bill is available here
The regulatory impact analysis of the proposed Online Safety and Media Regulation Bill is available here
The annexes to the regulatory impact analysis of the proposed Online Safety and Media Regulation Bill are available here
Explanatory infographics regarding online safety are available here