Ireland’s media regulator, Coimisiún na Meán (Commission), has announced that it has designated ten services as video-sharing platform services (VSPS) under the Broadcasting Act 2009 (as amended). The services designated include:
- X (formerly Twitter)
This is a significant step in regulating online safety not just in Ireland but EU-wide.
The EU’s revised Audiovisual Media Services Directive (AVMSD) brought VSPS within the scope of EU media regulation for the first time in 2018. This was in recognition of the fact that they increasingly compete for the same audiences and revenues as broadcasting and video-on-demand (VOD) services. VSPS are essentially a type of online video service which allows users to upload and share user-generated videos with the public. However, unlike VOD services, the platform does not have effective control over the selection of those videos. As can be seen from the list of designated services, this includes many of the world’s best-known social media companies.
By amending the Broadcasting Act 2009, the Online Safety and Media Regulation Act 2022 transposed the revised AVMSD into Irish law. Under the revised AVMSD, the Commission is responsible for regulating on a pan-EU basis those VSPS which have their EU base in Ireland.
Under the Broadcasting Act, the Commission is first required to designate named VSPS for regulatory purposes and regulation is then to take the form of a binding online safety code(s). In that regard, the Commission is currently consulting on a draft Online Safety Code which will apply to the designated VSPS. The deadline for submissions to the consultation was recently extended to 31 January 2024. Once the Code is finalised, the Commission must then consult with each designated VSPS with a view to issuing a determination on whether the Code applies to them.
The deadline for transposition of the revised AVMSD was originally September 2019 and, in November 2022, the European Commission referred Ireland to the EU Court of Justice for its failure to do so, requesting that financial sanctions be imposed on Ireland. This infringement case remains active, and Ireland will not have fully transposed the revised AVMSD until the Code is in force.
The designation decisions were issued in two tranches, on 22 and 29 December 2023, and the Commission has indicated that it hopes to finalise the Code in the first half of 2024. However, it appears that Ireland will first seek approval from the European Commission for the draft Code. If this is done under the full TRIS Notification process, a three-month standstill period (which can be extended) will apply from the date of notification, enabling the European Commission and other Member States to assess the Code to ensure it complies with EU law. During the standstill period, Ireland cannot implement the Code. The assessment will likely focus on the draft Code’s alignment with the EU’s Digital Services Act (DSA) which enters into full force on 17 February 2024, but which already applies to some of the above services by virtue of their designation as very large online platforms. In that regard, there is significant overlap between the regulatory regimes under the draft Code and the DSA, and indeed some divergences.
The designation of these ten online services is a significant step in the regulation of online safety in the EU but it remains to be seen when we can expect a finalised Code. It will certainly be interesting to see what the final Code looks like and how it and DSA are intended to co-exist in practice, not least because the Commission is also to be designated as Ireland’s Digital Services Coordinator for the purposes of the DSA.
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