Minister Martin presses forward with vital online safety law to establish new regulator

Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Catherine Martin TD, is publishing the Online Safety and Media Regulation Bill, paving the way for a new watchdog to regulate online services and to reduce the availability of harmful content.

Minister Martin has now received government approval to commence recruitment of an Online Safety Commissioner, who will act as a powerful regulator to enforce accountability in the sector.

The Bill will establish a new regulator, a multi-person Media Commission which will include the Online Safety Commissioner. This new body will be responsible for overseeing updated regulations for broadcasting and video on-demand services and the new regulatory framework for online safety created by the Bill.

The Media Commission will also have roles in relation to the protection of children, research, education, media literacy, journalistic and creative supports. In carrying out these roles the Commission will support and promote an open, trusted and pluralistic media and online environment.

Minister Martin said:

It will be the role of the Online Safety Commissioner to oversee the regulatory framework for online safety. As part of the framework, the Commissioner will devise binding online safety codes that will set out how regulated online services, including certain social media services, are expected to deal with certain defined categories of harmful online content on their platforms. The defined categories of harmful online content include criminal material, serious cyber-bullying material and material promoting self-harm, suicide and eating disorders.

The Online Safety Commissioner will have a range of powers to ensure compliance, including the power to require the provision of information and to appoint authorised officers to conduct investigations. In the event of a failure to comply with a relevant online safety code, and subject to court approval, the Media Commission will have the power to sanction non-compliant online services, including through financial sanctions of up to €20m or 10% of turnover.

The Media Commission will take on the current functions of the Broadcasting Authority of Ireland and regulate both television and radio broadcasters. The Commission will also be responsible for the regulation of video on-demand services. The regulations that apply to these services will be set out in Media Codes and Rules and will address issues such as programme standards, advertising, sponsorship, product placement, accessibility and other matters.

There will also be a new 30% quota for European Works in the catalogues of video on-demand services. There is already an existing quota of 50% for European Works for transmission time for television broadcasters.

The Bill addresses the majority of the 33 recommendations of the Joint Oireachtas Committee on Tourism, Culture, Arts, Sports and Media in their pre-legislative scrutiny report of the General Scheme of the Bill. This includes recommendations in relation to better defining harmful online content, reporting requirements for online services, a bigger role for the Media Commission in education and the independence and resourcing of the Commission.

Minister Martin intends to address a number of further recommendations through potential amendments at Committee Stage. This includes the recommendations to include provision for an individual complaints mechanism for harmful online content. These recommendations raise a number of complex practical and legal issues, including in relation to scalability, due process and timeliness. In order to ensure that these matters are fully considered, the Minister intends to establish an expert group which will consider these issues and best practices by other regulators. The group will then report to the Minister within 90 days with recommendations for how to address these issues.

Key features of the Bill

The following are key features of the Bill:

Structural:

• the establishment of a new regulator, the Media Commission; and
• the dissolution of the existing regulator, the Broadcasting Authority of Ireland

Powers of the Media Commission:

• to impose industry levies to fund its operations
• to require the provision of information from regulated services
• to appoint authorised officers to investigate suspected non-compliance
• to seek to impose administrative financial sanctions of up to €20 million or 10% of turnover in respect of non-compliance
• to issue notices to end non-compliance
• the power to seek the prosecution of senior management of designated online services for failure to comply with a notice to end non-compliance
• to seek to block access to certain online services
• to issue content limitation notices to designated online services in respect of individual pieces of harmful online content

Regulatory framework for online safety:

• defining “harmful online content” by reference to defined categories of content, including a category containing a schedule of criminal offences and three further categories relating to cyberbullying, the promotion of suicide and self-harm, and the promotion of eating disorders
• a process for defining further categories of harmful online content, subject to government approval and Oireachtas oversight
• the making of binding online safety codes, which will tackle the availability of the categories of harmful online content by addressing a wide range of issues from content moderation, to complaints handling, to recommendation systems, to reporting, to advertising
• a risk-based process for designating online services for regulation
• the making of non-binding online safety guidance materials and advisory notices to further create and support a safety-first culture of compliance
• a “super-complaints” scheme where nominated bodies, including expert NGOs in areas such as child protection, can bring systemic issues to the attention of the Media Commission

Transposition of the revised Audiovisual Media Services Directive:

• the regulation of Video Sharing Platform Services on an EU-wide basis (incorporated under the regulatory framework for online safety)
• updates to the regulation of television broadcasting services and video on-demand services
• a 30% quota for European Works in the catalogues of video on-demand services
• greater flexibility regarding advertising placement for television broadcasters, moving from a 20% hourly limit to a 20% limit for certain blocks of hours, for example between 18:00 and 24:00
• provision for a content production levy and content production scheme to support the creation of European Works, including independent Irish productions