Keeping Content Contained – an analysis of the Online Safety and Media Regulation Act 2022
The newly enacted Online Safety and Media Regulation Act is a response to the changed and changing landscape of media and content consumption as a result of the digital economy, and introduces new rules to make this consumption safer and in line with the regulation applicable to traditional broadcast media.
The Online Safety and Media Regulation Act 2022 (the “OSMRA” and the “Act”) was signed into law by President Higgins on 10 December 2022. The Act introduces new rules to combat the availability of harmful material online, and to ensure that the regulation applicable to traditional broadcast media is equally applicable to media and content available through digital means.
The core aims of the Act are to regulate the provision of content through non-traditional media using, to a large extent, the existing broadcasting regulation infrastructure in Ireland and bringing in two significant reforms from a content regulation perspective:
- implementing measures to improve the safety of users when engaging with online content and to regulate against the dissemination of harmful online content; and
- transposing the revised EU Audio-Visual Media Services Directive (the “AVMSD”) with regard to video-sharing platforms into Irish law.
A new regulator
Under the Act, a new a multi-person regulatory body to be known as Coimisiún na Meán or the Media Commission (the “Commission”) will replace the Broadcasting Authority of Ireland. The Commission will be responsible for overseeing updated regulations for broadcasting providers, video on-demand providers and video sharing platforms, in addition to the new regulatory framework for online safety created by the Act. The Commission will also implement various online safety codes, which will be the particular responsibility of an Online Safety Commissioner, a sub-office under the umbrella of the Commission. The Commission will have powers to issue binding codes and rules, collect levies, carry out investigations, receive complaints, and impose administrative fines.
The structure of the Commission will be made up of offices of individual Commissioners, overseen by an Executive Chairperson. Each Commissioner will be responsible for a particular area of the Commission’s remit, and to date the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Catherine Martin, has announced the individuals she intends to appoint as the Commissioners for Online Safety, Media Development and Broadcasting, in addition to the Executive Chairperson. The Commissioner for Broadcasting will assume the staff and functions of the Broadcasting Authority of Ireland.
Scope of the OSMRA
The Act provides for the regulation of the following:
- any ‘relevant online service’ or categories of ‘relevant online services’ (including video sharing platform services and other information society services on which user-generated content is made available) designated by the Commission as being subject to online safety codes (where a ‘relevant online service’ has not been designated, they will be encouraged to comply with the Commission’s guidance materials and advisory notices on a non-binding basis); and
- providers of broadcasting services and audiovisual on-demand media services.
Other than the provisions implementing Article 2 of the revised AVMSD (and its jurisdictional rules), the Act applies to providers established in Ireland.
In determining whether to designate a service (or category of service) as being subject to an online safety code or codes (which are binding and failure to comply with these may result in sanctions being imposed by the Commission, up to and including the seeking of an access blocking order from the High Court), the Commission must have regard to the nature and scale of the services being provided, the levels of availability of potentially harmful content on that service or the likelihood of exposure to the public to such content, and the risk of harm that that content poses.
Under the Act, the Commission must designate ‘video-sharing platform services’ as “relevant online services” subject to the online safety codes referred to above. In determining which online services are ‘video-sharing platform services’ the Commission will have regard to the European Commission’s guidelines on the definition of a video-sharing platform service in Article 1(1)(aa) of the AVMSD.
Obligations for online content providers under the OSMRA
Obligations arising from implementation of the AVMSD
The Act broadens the scope of regulations to which traditional broadcasters are already subject by extending certain provisions to audiovisual on-demand media services.
Such services must:
- register with the Commission;
- not include specific forms of content in their services, such as content that is causing harm or offence or is likely to promote, or incite, crime;
- ensure that programmes on their services, and the means of making such programmes, do not unreasonably encroach upon the privacy of any individuals;
- comply with obligations in relation to news and current affairs programmes on the services;
- not make available political, industrial dispute or religious advertisements; and
- retain copies of programme material for a duration specified by the Commission.
In addition to this, obligations relating to promotion of European works on on-demand services require that providers secure at least a 30% share of European works in their catalogues and ensure prominence of those works. The Commission also has the power to issue a levy on certain providers, which will be designated as a financial contributions to the production of European works.
Obligations in respect of online safety
The Act provides that certain categories of online content will fall under the definition of “harmful online content”, including: (i) content related to the criminal offences listed at section 46 of the Act and (ii) content that falls within specified categories and meets a risk test, such as content in which a person bullies or humiliates another person, content that promotes disordered eating behaviours, self-harm or suicide or other designated categories.
A key distinction between the harmful online content that relates to criminal offences and the other categories is that the former is automatically considered harmful, but the latter must pass a risk test to be considered harmful. The risk test is met if the content presents either a risk to a person’s life; or a risk of significant harm to a person’s physical or mental health, where that harm is reasonably foreseeable.
To regulate the availability of harmful online content, the Commission will issue binding online safety codes applicable to the providers of relevant online services designated as being subject to these codes. The exact obligations contained in these codes are not set out in the Act, but will broadly fall under the following categories:
- Requiring designated online service providers to take appropriate measures to minimise the availability of harmful online content and risks arising from the availability of and exposure to such content;
- Requiring designated online service providers to take any other measures that are appropriate to protect users of their services from harmful online content;
- Requiring designated online service providers to take any other measures that are appropriate to provide the protections set out in Article 28b of the AVMSD, which include protection of minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development, and protection of the general public from content containing incitement to violence or hatred, or content containing material of a criminal nature; and
- Requiring designated online service providers to take any measures in relation to commercial communications, such as advertising material, on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children.
To promote good general market practices in this sector, the Commission will also publish non-binding online safety guidance materials and advisory notes.
Powers of the Commission
The Commission will have broad investigative and enforcement powers, including to:
- by written notice, require the provider of a designated online service to provide information in relation to its compliance with an online safety code;
- search, seize and compel the production or preservation of material, and to conduct ‘oral hearings’ as part of investigations undertaken by the Commission;
- impose administrative fines of up to €20 million or 10% of relevant turnover in the financial year preceding the date of the decision;
- appoint persons to carry out audits of complaints and internal complaint handling systems;
- make injunction-style orders to end non-compliance with an online safety code;
- apply for injunctions to block access to certain online services or audio-visual on-demand media services; and/or
- require a service provider to remove or disable access to certain harmful online content.
The Commission will also have responsibility for an individual complaints mechanism including in respect of online safety, focusing initially on children and a number of specific categories of harmful online content such as cyberbullying.
A key aspect of enforcement is the susceptibility of the Commission’s decisions to judicial review. Section 38 of the Act provides that leave will not be granted for judicial review of: (i) any decision by the Commission that a service provider was in contravention of the Act; or (ii) a decision of the Commission to impose a financial sanction upon the service provider as a result of such contravention.
Decisions of the Commission may, however, be appealed on either or both of the following bases: (i) any ground that could, but for section 38, be relied upon by the service provider in an application seeking judicial review of the Commission’s decision; and/or (ii) on the grounds that any sanction imposed by the Commission is not proportionate. The High Court is designated by the Act as the appropriate court for the hearing of any such appeal unless no administrative financial sanction has been imposed or that administrative financial sanction is equal to or less than €75,000 in which case the Circuit Court shall be the appropriate court for the appeal.
The Act has been passed into law, but has not yet been commenced, and the Commission has yet to be formally established. However, Government have announced that the soon to be appointed Executive Chairperson, Online Safety Commissioner, Media Development Commissioner and Broadcasting Commissioner will take up their duties in mid-February.
Following commencement of the Act, there will be a transitional period of three months for providers of on demand audio-visual services to register with the Commission. While many obligations under the Act cannot practically be enforced until the Commission is operational, relevant service providers have been designated and the new online safety codes have been prepared and implemented, businesses should familiarise themselves with their obligations and be prepared for compliance with the Act as soon as possible.