The act will modernise media industry oversight but, unlike plans in the UK, does not intend to use criminal liability as a primary enforcement tool
Ireland establishes a new framework for regulating online safety: In December 2022, Ireland’s President signed the Online Safety and Media Regulation (OSMR) Bill into law. The OSMR Act 2022 amends the Broadcasting Act 2009 to:
Establish Coimisiún na Meán (the Media Commission), dissolving the Broadcasting Authority of Ireland;
Update the rules governing TV broadcasting and video on demand services, bringing the latter under statutory regulation for the first time; and
Transpose the EU’s revised Audiovisual Media Services Directive into national law.
Importantly, the act establishes a regulatory framework for online safety, which will be overseen by an Online Safety Commissioner. They will be empowered to make binding ‘Online Safety Codes’ to hold designated digital services to account for how they tackle harmful content online. The Commissioner may also introduce an individual complaints mechanism on a phased basis, focusing initially on children, and to order the removal or limitation of availability of specific items of harmful online content, either following a complaint or on its own initiative.
The Commission’s role is set to broaden over time: Coimisiún na Meán will have a range of compliance and enforcement powers, including the ability to appoint authorised officers to conduct investigations, to require the provision of information and to impose financial sanctions (of up to €20m or 10% of turnover). The Government anticipates that Coimisiún na Meán’s remit will expand over the coming years, ultimately taking responsibility for enforcing key pieces of EU legislation, i.e. the Digital Services Act. The new regulator will also play a role in promoting media sustainability and development through a dedicated Commissioner, who will be responsible for creating and maintaining funding schemes for media production and training. That Commissioner will have to report on the feasibility of introducing a levy to fund content production schemes, which Coimisiún na Meán will be empowered to make in consultation with Fís Éireann (Screen Ireland).
The UK could use criminal liability as a compliance incentive: The OSMR Act 2022 is a landmark piece of legislation, which is intended to modernise oversight of the media ecosystem in Ireland and plug regulatory gaps that lie beyond the scope of existing data protection and criminal laws. Ireland is not the only jurisdiction to be developing a new framework for regulating online safety. California has passed the Age-Appropriate Design Code Act, while the UK is attempting to push through the Online Safety Bill (OSB), which is due for a second reading in the House of Lords on 1 February 2023. A recent – and contentious – addition to the OSB is the potential criminalisation of senior tech employees if they fail to adequately protect children from harmful content. In contrast to Ireland, this sort of liability is envisaged as a primary compliance mechanism, rather than a last resort. Amid ongoing controversy, the OSB is likely to see significant amendments tabled this quarter.
