25 June, 2019
Irish AV regulator unveils vision based on a single regulator for all media content and a 'macro' approach with a robust complaints mechanism for VSPs
On 4 March 2019, the Irish government launched a public consultation to inform the drafting of a new Online Safety Act aiming to transpose the AVMS Directive. The consultation was based on four strands:
Strand 1: New online safety laws to apply to Irish residents
Strand 2: Regulation of Video Sharing Platforms
Strand 3: Regulation of On Demand Services
Strand 4: Minor changes to regulation of traditional TV
Responding to the public consultation, the BAI prepared a 98-page submission, with in-depth analysis and proposals, supporting 'Option 1' - that of a single comprehensive regulatory scheme and regulator, in order to develop “a vision for the future regulation of media content across all platforms and devices” which "seeks to serve and protect audiences and users in the new media environment". The underlying principles include diversity, plurality and ensuring culturally-relevant content, protection from harmful content, vindicating freedom of expression, facilitating linguistic and cultural diversity and sustaining and enhancing democratic discourse. In order to deliver practically on the vision and principles, one of the key factors which was taken in account by the BAI in its deliberations was the issue of scale, both in terms of number of services and number of users, generated by the inclusion of the VSP in the scope of regulation.
Here are the key points underpinning BAI’s proposals and approach:
One single statutory regulator for audiovisual content and online safety. According to the BAI, a single regulator would provide consistency in the regulation, at a time when a same content can be disseminated by multiple means. Furthermore, a single point of contact for all other European regulators, institutions or stakeholders would improve efficiency. The goal is to provide a fair and balanced treatment between all actors, with consistency and harmony. The BAI would be able to play a leading role in this scheme, based on its expertise and knowledge. The BAI’s work in implementing its media literacy functions also provides a strong basis for delivering on the wider objectives of online safety regulation.
Video-sharing platforms: a 'macro' approach, opened to European collaboration. As the submission highlights, Ireland faces a great responsibility, as being the competent jurisdiction for the largest VSPs in Europe (Facebook, Twitter and Google). To tackle the inevitable scale issue, the BAI believes the regulator should principally work at a ‘macro’ level in order to effectively deliver on the regulatory objectives. With such an approach, the regulator would be in charge of the very important decisions affecting a large number of users simultaneously. This implies drafting statutory codes and assessing the measures undertaken by VSPs, on a regular and on-going basis, to the code provisions. Conversely, the BAI points out that the VSPs are the best equipped to resolve rapidly 'micro' issues. It would be impractical and far too costly for the regulator to deal with every single (and multi-language) complaints received from VSP users. The regulator should focus its resources and efforts on public interest issues, monitoring and assessing on a regular basis the VSP compliance with the statutory codes.
This system would imply frequent communication between the VSPs and the regulator, through regular reports and an electronic information sharing mechanism, and a robust and transparent complaints mechanism. For the latter, the BAI proposes the following scheme:
- An internal complaints mechanism for the first stage (assessment by the regulator);
- Impartial decision-makers at a second stage (monitoring by the regulator) - a system similar to the requirement to appoint independent Data Protection Officers pursuant to the GDPR.
- At a 'macro' level, overview by the regulator of all the complaints received by the VSP (“in aggregate”) which may lead to a binding recommendation;
- A status of 'priority complainants' for some bodies across Europe. The VSP should then provide additional resources and motivated decisions (closely monitored by the regulator). The idea is to provide priority complainants from other EU Member States with a more direct access to the VSPs while respecting the “country of origin” principle. For instance, the BAI suggests to designate an independent statutory body, such as an audiovisual regulator in each Member State, who will be the 'priority complainant'.
On-demand and linear services
With the exception of some necessary adaptations due to the AVMS Directive transposition (namely the rules related to advertising and product placement), the BAI recommends to maintain the already well-established regulation scheme applying to linear services.
Regarding on-demand services, the BAI proposes a significant shift, with a more active regulation, in line with the linear services regulation, with statutory regulation and codes.
The BAI believes there are three main objectives to consider with regards to Harmful Online Content, namely the rectification of harm (removal notices to providers), the minimization of the potential for harm (draft of online safety codes for providers) and the prevention of harm (promoting awareness of online safety issues among the public and industry).
In the BAI's view, in order to effectively tackle the challenges of the regulatory environment, the new regulator will require strategic vision, good knowledge and expertise, the power of decision-making, the ability to communicate (with European institutions, agencies and stakeholders) and sufficient policy, human, financial, legal and technical resources. The BAI considers that the regulatory scheme should be funded by the sectors to be regulated.