by Joe O'Malley , Cian Clinch November-05-2019 in Media Law, Technology
The Government recently published proposals for a new Online Safety Bill with the aim of creating a safer online environment. The stated objectives of the proposed Bill include:
- greater protection for Irish residents while using online platforms; and
- guidelines based on current EU Directives to regulate those providing online streaming and file sharing (e.g. YouTube), audio-visual (e.g. All 4 and Amazon Prime) and traditional television services (e.g. RTE One, Two) more stringently.
The proposed Bill focuses on three main concerns; cyber bullying, material that promotes self-harm or suicide, and material that could risk one’s health by promoting nutritional deprivation. Under these proposals, this content would receive similar treatment as racist or terror related material.
In order to tackle these concerns, the Bill imposes new obligations on internet service providers (ISPs), including requiring them to:
- implement an Online Safety Code to provide clarity around matters such as the making of complaints and requesting the removal of online content;
- develop minimum standards for the regulation of online material to ensure that inappropriate content is flagged in such a manner that ISPs or regulators can act swiftly; and
- make safety a foundation of new platforms by combining technology with human intervention. This will likely look to phase Artificial Intelligence (AI) initiatives into the market over time while ensuring that there is some level of human understanding within the procedure.
It is envisaged that the Bill will be enforced by a new regulator – the Online Safety Commissioner. The proposed power of the Commissioner will be quite extensive, including having the power to
- question whether an ISP’s safety code is ‘fit for purpose’;
- request ISP safety reports to track improvements and implement audits where necessary;
- ensure the removal of inappropriate content, in the circumstance that ISPs have not done so appropriately;
- issue notices (in tandem with injunctions) and warnings upon compliance failures;
- impose fines for compliance breaches;
- publish the failings of ISPs with regards to their online safety protocols; and
- bring about criminal proceedings against ISPs that fail to comply with the Bill.
The second objective of the Bill will be to build on the Audio-visual Media Services Directive (AVMSD) by regulating the platforms that video share and provide on demand and/or traditional television services. The original AVMSD set out a core set of principles to protect against online harm and entrusts a regulator to uphold such principles. It is proposed that the Bill will go further by ensuring that video sharing platforms have appropriate measures in place, such as age verification and parental restrictions, as well as a strong complaints process for users.
These tasks will be undertaken by the Online Safety Commissioner on a rolling basis. The Commissioner could implement audits, request information from ISPs, or simply implement directions for improvement. These powers would extend to all ISPs that are established in Ireland, without the need for further regulation by other EU jurisdictions.
The Government has engaged with many stakeholders in recent months to discuss the suitability of the proposed measures and how best to implement them in such an expansive sector. These discussions are ongoing and the proposals may require some amendment before the Bill is enacted. These discussions have considered the creation of a regulator, the necessity of such a Bill in Ireland and the required powers for the potential regulatory body. Nonetheless, it is anticipated that a completed Bill will be presented to Parliament by early 2020.
Our Media and Technology team advises media publishers, public sector organisations and marketing and advertising businesses on all aspects of technology related issues.
For further information on the proposed new legislation or how it might affect your business, please contact Joe O'Malley jomalley@hayes-solicitors.ie, Cian Clinch cclinch@hayes-solicitors.ie or your usual contact at Hayes solicitors.
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About the Authors
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.
Cian Clinch
Cian is a partner in the Commercial & Business team at Hayes solicitors. He predominantly specialises in commercial litigation and dispute resolution and has acted for a variety of companies and financial institutions in contract, debt, insolvency, restructuring and recovery matters.