The Online Safety and Media Regulation Act 2022

The Online Safety and Media Regulation Act 2022 (the “Act”) was signed into law by President Higgins on 10 December 2022.

The aim of the Act is to regulate harmful online material and to allow traditional laws that have, until now, only been applicable to traditional media outlets, to be applied to today’s modern media outlets.

There are two major reforms where content regulation is concerned:

• 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 “EU Directive”) regarding video-sharing platforms into Irish law.

The Act also sees the creation of the Media Commission or Coimisiún na Meán (the “Commission”) which will replace the Broadcasting Authority of Ireland. The Commission will be tasked with overseeing updated regulations for broadcasting service providers as well as online sharing platforms.

The Commission will also employ the first Online Safety Commissioner. Solicitor Niamh Hodnett was appointed the inaugural Online Safety Commissioner in January and will be responsible for issuing online safety codes. The Commissioner will have powers to issues fines, collect levies, carry out investigations, and receive complaints.

The Act provides for the regulation of online video sharing platforms in which user-generated content is made available. Where there is ambiguity as to what an online video sharing platform is, these platforms will be encouraged to comply with the regulations of the commission. This will also be applicable to providers of broadcasting services and audio-visual on-demand media services.

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.

Criminal offences will also be applied if the content considered meets the Risk Test. This test specifies that, 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, then a criminal offence may apply.

For guidance as to what defines a video sharing platform service, the Commission will have regard to the guidelines on the definition of a video-sharing platform service in Article 1(1)(aa) of the EU Directive which states that a video platform sharing service is “a service […] where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain, or educate, by means of electronic communications networks […], and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing.”

About the author: Ciarán Leavy, Partner, Commercial Litigation.