Online Safety and Media Regulation Act 2022

PART 1 Preliminary and General

1. Short title, collective citation and commencement

1. (1) This Act may be cited as the Online Safety and Media Regulation Act 2022.

(2) The Principal Act and this Act, in so far as it amends the Principal Act, may be cited as the Broadcasting and Other Media Regulation Acts 2009 and 2022.

(3) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definitions

2. In this Act—

“Authority” means the Broadcasting Authority of Ireland;

“Commission” means Coimisiún na Meán established under section 6 of the Principal Act as inserted by section 8;

“Compliance Committee” means the Compliance Committee established by section 6 of the Principal Act as that section had effect immediately before the date of coming into operation of section 8;

“Contract Awards Committee” means the Contract Awards Committee established by section 6 of the Principal Act as that section had effect immediately before the date of coming into operation of section 8;

“establishment day” means the establishment day appointed under section 5 of the Principal Act as substituted by section 8;

“Minister” means the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media;

“Principal Act” means the Broadcasting Act 2009;

“statutory committees” means the Contract Awards Committee and the Compliance Committee.

PART 2 Amendment of Part 1 of Principal Act

3. Amendment of section 2 of Principal Act

3. (1) Section 2 of the Principal Act is amended by renumbering the existing section as subsection (1).

(2) Subsection (1), renumbered under subsection (1), of section 2 of the Principal Act is amended—

(a) by the insertion of the following definitions after the definition of “Act of 2001”:

“‘advertisement’ includes a commercial communication;

‘audiovisual broadcasting service’ means an audiovisual media service provided for simultaneous or near-simultaneous viewing of audiovisual programmes on the basis of a programme schedule;

‘audiovisual commercial communication’ means a commercial communication consisting of images with or without sound;

‘audiovisual media service’ means a service, within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union, where—

(a) the principal purpose of the service is devoted to, or

(b) the principal purpose of a dissociable section of the service is devoted to,

providing audiovisual programmes, by electronic communications networks, to the general public, under the editorial responsibility of the provider of the service, in order to inform, entertain or educate;

‘audiovisual on-demand media service’ means an audiovisual media service provided for the viewing of programmes at the moment chosen by the user and at the user’s request on the basis of a catalogue of programmes selected by the provider of the service;

‘audiovisual programme’ means a set of moving images with or without sound which, in the case of an audiovisual media service, constitutes an individual item, irrespective of its length, within a programme schedule or a catalogue;”,

(b) in the definition of “broadcasting service”, by the substitution of the following paragraph for paragraph (b):

“(b) any other service which is provided by way of the internet, if the service does not provide audiovisual programmes;”,

(c) by the insertion of the following definitions after the definition of “broadcasting service”:

“‘category 1 offence’ means an offence the penalties for which are specified in section 139ZZH(1);

‘category 2 offence’ means an offence the penalties for which are specified in section 139ZZH(2);

‘category 3 offence’ means an offence the penalties for which are specified in section 139ZZH(3);

‘Charter’ means the Charter of Fundamental Rights of the European Union;”,

(d) by the insertion of the following definitions after the definition of “children”:

“‘commercial communication’ means images or sound or both—

(a) designed to promote, directly or indirectly, the goods, services or image of a person pursuing an economic activity, and

(b) included in or accompanying a programme or user-generated content in return for payment or for similar consideration or for self-promotional purposes;

‘Commissioner’ has the meaning given by section 11(2);”,

(e) by the substitution of the following definition for the definition of “communications media”:

“‘communications media’ means—

(a) broadcasting services,

(b) audiovisual on-demand media services,

(c) designated online services, or

(d) newspapers or periodicals consisting substantially of news and comment on current affairs;”,

(f) by the insertion of the following definitions after the definition of “Council Directive”:

“‘Data Protection Regulation’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^3 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation);

‘designated online service’ means a service designated under section 139E;

‘Directive’ means Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010^4 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services, as amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018^5;”,

(g) by the insertion of the following definitions after the definition of “director general”:

“‘E-Commerce Directive’ means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000^6 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market;

‘editorial responsibility’, in relation to providing programmes, means effective control—

(a) over the selection of the programmes, and

(b) over their organisation in a programme schedule or in a catalogue;”,

(h) by the substitution of the following definition for the definition of “employment”:

“‘employment’ includes—

(a) full-time paid employment,

(b) part-time paid employment,

(c) temporary paid employment for a period of 16 weeks or more in the period of a year, or

(d) being retained under contract, directly or indirectly, in any capacity as an adviser, consultant or lobbyist, or for the provision of services;”,

(i) by the substitution of the following definition for the definition of “establishment day”:

“‘establishment day’ means the day appointed by the Minister under section 5 to be the establishment day for the purposes of this Act;”,

(j) by the insertion of the following definition after the definition of “free-to-air service”:

“‘harmful online content’ has the meaning given by section 139A(1);”,

(k) in the definition of “holding company”, by the substitution of “Companies Act 2014” for “Companies Act 1963”,

(l) in the definition of “Joint Oireachtas Committee”, by the substitution of “to which this Act relates” for “relating to broadcasting”,

(m) by the substitution of the following definition for the definition of “media literacy”:

“‘media literacy’ means public understanding of material published in print, broadcast, online or other media, including understanding of—

(a) the nature and characteristics of published material,

(b) how material is selected, or made available, for publication,

(c) how individuals and communities can create and publish material, and

(d) how access to published material is or can be regulated;”,

(n) by the insertion of the following definitions after the definition of “media literacy”:

“‘media service code’ means a code made under section 46N;

‘media service provider’ means a person who provides an audiovisual media service;

‘media service rules’ means rules made under section 46O;”,

(o) by the insertion of the following definitions after the definition of “national emergency”:

“‘online safety code’ means a code made under section 139K;

‘Online Safety Commissioner’ means a Commissioner designated under section 11(7) as an Online Safety Commissioner;”,

(p) by the insertion of the following definitions after the definition of “ownership”:

“‘personal data’ has the same meaning as it has in the Data Protection Regulation;

‘programme’ means a sound programme or audiovisual programme;”,

(q) in the definition of “programme material”—

(i) by the insertion of “(subject to section 153)” after “ ‘programme material’ ”, and

(ii) by the deletion of “and material which, when transmitted, will constitute a direct offer to the public for the sale or supply to them of goods or other property (whether real or personal) or services”,

(r) by the insertion of the following definition after the definition of “programme material”:

“‘programme schedule’ means a chronological schedule of audiovisual or sound programmes;”,

(s) by the insertion of the following definition after the definition of “provide a broadcasting service”:

“‘provider of communications media’ means—

(a) in the case of a broadcasting service, the broadcaster of the service,

(b) in the case of an audiovisual on-demand media service, the media service provider who provides the service,

(c) in the case of a designated online service, the person who controls the service, and

(d) in the case of newspapers or periodicals consisting substantially of news and comment on current affairs, the person who controls the newspaper or periodical;”,

(t) by the insertion of the following definition after the definition of “Raidió Teilifís Éireann”:

“‘relevant online service’ means—

(a) a video-sharing platform service the provider of which is under the jurisdiction of the State, or

(b) any other information society service, within the meaning of Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015^7—

(i) the provider of which is under the jurisdiction of the State, and

(ii) on which user-generated content is made available (directly or through providing access to another service),

but does not include an audiovisual on-demand media service;”,

(u) by the substitution of the following definition for the definition of “sound broadcasting service”:

“‘sound broadcasting service’ means a service, within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union, where—

(a) the principal purpose of the service is devoted to providing sound programmes, by electronic communications networks, to the general public, under the editorial responsibility of the provider of the service, in order to inform, entertain or educate, and

(b) the service is provided for simultaneous or near-simultaneous listening to sound programmes on the basis of a programme schedule;”,

(v) in the definition of “subsidiary”, by the substitution of “Companies Act 2014” for “Companies Act 1963”,

(w) in the definition of “terrestrial means”, by the deletion of “a MMD system or”,

(x) by the insertion of the following definitions after the definition of “transmission”:

“‘user-generated content’, in relation to a relevant online service, means content created by a user of the service and uploaded to the service by that or another user;

‘user-generated video’ means user-generated content consisting of a set of moving images with or without sound;

‘video-sharing platform service’ has the meaning given by subsections (2) and (3);”,

and

(y) by the deletion of the definitions of “BCC”, “broadcasting code”, “broadcasting rules”, “Compliance Committee”, “Contract Awards Committee”, “electronic programme guide”, “electronic programme guide contract”, “excepted person”, “interests”, “MMD system”, “ownership”, “transmission” (and “transmit” and “re-transmit”), and “website”.

(3) Section 2 of the Principal Act is amended by the insertion of the following subsections after subsection (1), renumbered under subsection (1):

“(2) In this Act, ‘video-sharing platform service’ means, subject to subsection (3), a service, within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union, where—

(a) the principal purpose of the service is devoted to,

(b) the principal purpose of a dissociable section of the service is devoted to, or

(c) an essential functionality of the service is devoted to,

providing audiovisual programmes or user-generated videos, or both, by electronic communications networks, to the general public, in order to inform, entertain or educate.

(3) A service is a video-sharing platform service within subsection (2) only if the provider of the service—

(a) does not have effective control over the selection of the programmes and videos referred to in that subsection, but

(b) determines their organisation, by automatic means or algorithms (including displaying, tagging and sequencing) or otherwise.”.

4. Meaning of “under the jurisdiction of the State”: media service providers

4. The Principal Act is amended by the insertion of the following section after section 2:

“2A. (1) For the purposes of this Act, the question whether a media service provider is under the jurisdiction of the State (or another Member State) is to be determined in accordance with this section.

(2) A media service provider is under the jurisdiction of a Member State if under subsection (5) it is established in that state.

(3) If a media service provider is not, under subsection (5), established in a Member State, then the provider is under the jurisdiction of a Member State if—

(a) it uses a satellite up-link situated in that state, or

(b) it uses satellite capacity appertaining to that state.

(4) If subsections (2) and (3) do not determine the question in relation to a media service provider, then the provider is under the jurisdiction of the Member State in which it is established within the meaning of Articles 49 to 55 of the Treaty on the Functioning of the European Union.

(5) The following provisions apply to a media service provider for the purposes of subsections (2) and (3):

(a) if the provider has its head office in a Member State, and the relevant editorial decisions are taken in the same Member State, the provider is established in that Member State;

(b) if the provider has its head office in a Member State, and the relevant editorial decisions are taken in another Member State, then—

(i) if a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates in the Member State where the provider has its head office, the provider is established in that Member State,

(ii) if subparagraph (i) does not apply but a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates in the Member State where relevant editorial decisions are taken, the provider is established in that Member State, and

(iii) if neither subparagraph (i) nor subparagraph (ii) applies, the provider is established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;

(c) if the place where the provider has its head office and the place where the relevant editorial decisions are taken are different, and only one of them is in a Member State, the provider is established in that Member State, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.

(6) In this section—

‘audiovisual media service activity’ means activity relating to the audiovisual media service concerned;

‘relevant editorial decisions’ means editorial decisions about the audiovisual media service concerned.”.

5. Meaning of “under the jurisdiction of the State”: providers of video-sharing platform services

5. The Principal Act is amended by the insertion of the following section after section 2A:

“2B. (1) For the purposes of this Act, the question whether the provider of a video-sharing platform service is under the jurisdiction of the State (or another Member State) is to be determined in accordance with this section.

(2) The provider of a video-sharing platform service is under the jurisdiction of a Member State if the provider is established in the territory of that state.

(3) If the provider of a video-sharing platform service is not established in a Member State, then the provider is under the jurisdiction of a Member State if—

(a) it has a parent undertaking or a subsidiary undertaking that is established in the territory of that state, or

(b) it is part of a group, and another undertaking of that group is established in the territory of that state.

(4) For the purposes of subsection (3), if in the provider’s case there are different undertakings (parent undertaking, subsidiary undertakings, or other undertakings in the same group) that are established in different Member States, the provider shall be deemed to be established—

(a) if it has a parent undertaking that is established in a Member State, in that Member State,

(b) if paragraph (a) does not apply but it has a subsidiary undertaking established in a Member State, in that Member State, and

(c) if paragraphs (a) and (b) do not apply but another undertaking in the group is established in a Member State, in that Member State.

(5) If subsection (4)(b) applies but there are different subsidiary undertakings established in different Member States, the provider shall be deemed to be established in the Member State where one of the subsidiary undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State.

(6) If subsection (4)(c) applies but there are different undertakings in the group established in different Member States, the provider shall be deemed to be established in the Member State where one of the undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State.

(7) In this section—

(a)‘established’ has the same meaning as in Article 3(1) of the E‑Commerce Directive;

(b)‘parent undertaking’ means an undertaking that controls one or more subsidiary undertakings;

(c)‘subsidiary undertaking’ means an undertaking controlled by a parent undertaking, including any subsidiary undertaking of an ultimate parent undertaking;