On June 24, 2019, the Broadcasting Authority of Ireland (BAI) published its submission on the regulation of harmful online content and the implementation of the EU Audiovisual Media Services Directive (AVMSD) in Ireland. This submission is in response to the Irish government's public consultation on the same subject launched on March 4, 2019. All EU member states are required to transpose the provisions of the AVMSD into law by September 2020, and the government is looking to introduce further national laws to encourage online safety.
Regulators around the world have begun to realize that it is becoming increasingly important for changes to be made to how audiovisual content is regulated. Existing regulatory frameworks have not been keeping pace with technological changes and the ongoing convergence of traditional television and internet services. This is a particularly important issue for Ireland, where many of the major international platforms are based, so it is encouraging that the Irish government has decided to take steps to ensure a robust regulatory framework is in place to encourage online safety.
According to the government, a new online safety law will need to be introduced to focus on the introduction of regulation in four key strands:
Strand 1: new online safety laws to apply to Irish residents
Strand 2: regulation of video-sharing platforms (e.g., YouTube)
Strand 3: regulation of on-demand services (e.g., RTÉ Player, Virgin Media Player, iTunes)
Strand 4: minor changes to regulation of traditional TV.
Strand 1 focuses on national legislation for harmful content, whereas Strands 2–4 are required to ensure the country complies with the AVMSD, which all EU member states must incorporate into national law by September 2020. In addition to the new law, the country is obligated under the AVMSD to implement
a new system of regulation for user-generated audiovisual content on video-sharing platform services, for example, YouTube (Strand 2)
a revised system of regulation for on-demand audiovisual services, for example, RTÉ Player, Virgin Media Player, iTunes Store (Strand 3)
updates required to the regulation of linear audiovisual services, that is, traditional TV including public service broadcasters (Strand 4).
On March 4, 2019, the government launched a public consultation about the intention to give a regulator the powers necessary to ensure that harmful content can be removed quickly from online platforms. However, it is critical that care is taken in defining what "harmful content" is and the nature of services that should be in scope (on-demand and linear broadcast services) as well as ensuring that there are appropriate structures in place to remove "harmful content." In addition, should the removal involve the direct involvement of the regulator in a "notice and take down" system? The government has already outlined a brief view on how harmful content could be defined by providing some examples:
serious cyberbullying of a child (i.e., content which is seriously threatening, seriously intimidating, seriously harassing, or seriously humiliating)
material which promotes self-harm or suicide
material designed to encourage prolonged nutritional deprivation that would have the effect of exposing a person to risk of death or endangering health.
Ultimately, without a clear definition, there is a risk that legitimate freedom of speech and freedom of expression online could be curtailed, while other harmful content could slip through the net.
However, the consultation doesn't only look at national legislation; it also assesses what type of regulatory structure would be most appropriate to implement the AVMSD effectively in Ireland: Should, for example, this fall to the BAI or to another regulator and then what sanctions and powers should this regulator have? The BAI is of the view that the introduction of new regulation would be most effectively accomplished through the introduction of a single, comprehensive regulatory scheme and regulator. The new single regulator would oversee a wider set of objectives for content and services, for example, ensuring diversity, plurality, and the promotion of freedom of expression; sustaining and enhancing democratic discourse; and facilitating linguistic and cultural diversity.
In the longer term, the BAI will be pushing for the development and enforcement of an online safety code for Irish online service providers as well as giving the regulator a role in promoting awareness of online safety issues among industry and the public. A final statement from the government on the proposed law is expected toward the end of 2019.
How Pay-TV Regulation Is Evolving, GLB005-000012 (December 2017)
"In a world first, social media platforms are to be subject to a legal 'duty of care' in the UK," GLB005-000149 (April 2019)
"Netflix, Amazon Prime, and other SVOD providers will have to maintain a European content quota of 30%," GLB005-000097 (October 2018)
"The EC's recommendations for tackling illegal content online are a step in the right direction," GLB005-000033 (March 2018)
Sarah McBride, Analyst, Regulation