Ireland’s Online Safety and Media Regulation Bill: too little too soon?
Niamh Kirk, Elizabeth Farris, Kalpana Shankar
The General Scheme of the Online Safety and Media Regulation Bill (OSMR) represents the extensive and good faith efforts of the Irish government to respond to harmful materials online. As the Bill moves through the Oireachtas questions have been raised by academics, civil society and big tech platforms about not just how the Bill will best regulate the online safety of people living in Ireland but when. Experts have noted that the Bill creates new online-only offences in respect of very broadly defined services which may be too vague to meet legality standards. Others have suggested that it will take several years for the Bill to practically take effect and in doing so it may also conflict with EU laws including the Digital Safety Act proposal. Given this, the Oireachtas Committee examining the Bill might consider pausing its progress until legislation at the EU level is passed.
The Online Safety and Media Regulation Bill (OMSR)
The OSMR was published in December 2020. The Bill aims to address multiple areas of concern after the Online Advertising and Social Media (Transparency) Bill 2017 lapsed. The Bill deals with three core areas. Parts one and two establish a new regulatory Media Commission and an Online Safety Commissioner and the dissolution of the Broadcasting Authority of Ireland (BAI), much of which will become part of the new Media Commission. Under the Bill the Media Commission will have enhanced powers to force compliance, sanction digital platforms, and if necessary, block online services. The Commission can institute and prosecute summary offences and fine tech platforms.
Part three of the Bill addresses discrete categories of ‘online harms’. This legislation covers illegal content and also specific categories of not illegal but nonetheless harmful online content. These categories include material which is likely to have the effect of intimidating, threatening, humiliating or persecuting a person, material which is likely to encourage or promote eating disorders and self harm, and material which is likely to have the effect of intimidating, threatening, humiliating or persecuting a person to which it pertains (cyberbullying). While these categories of harm are provided for in big tech community guidelines, the platforms’ approach to self-regulation are inconsistent and opaque. The Bill aims to solve this by compelling consistent enforcement. There is also scope for the inclusion of new categories of harmful content, defined through a consultancy process between the Commission, the Minister for Communications and a Joint Oireachtas Committee.
The OSMR Bill is still in a pre-legislative stage and experts scrutinizing the Bill are raising concerns. The Irish Council for Civil Liberties is concerned that the legislation will restrict non-illegal speech in a manner that infringes fundamental rights including freedom of expression. ICCL says that in particular, the proposed law in regards to regulating non-illegal material for cyberbullying is overly vague to the point that it is not clear who specifically could be regulated under this Bill or when.
At the UCD Digital Policy Centre we would also note the manner in which the Media Commission will identify and define new categories of harmful content going forward. We note in particular that there is no provision for an appeals process outlined in the OMSR Bill, for either platforms or users whose content may be the subject of deliberation. However, the Digital Services Act proposal under examination by the European Parliament would require that users have the ability to contest any moderation decisions in order to ensure the protection of the freedom of expression and access to information. This potential conflict between domestic and EU law, exemplifies a risk attached to giving the OMSR force of law too quickly. Stakeholders including Facebook have suggested that the Oireachtas committee examining the Bill consider pausing its progress until EU laws are finalised and in force. Waiting might be especially prudent given the enormous amount of resources and time which will necessarily be devoted to setting up an Irish Media Commissioner. We understand waiting will delay Ireland’s aspirational evolution to an EU online safety regulator. Still, with major legislative decisions still percolating at the EU level, might it not be prudent to get this right rather than act too quickly?