knowledge 15 May 2020 |

Ireland Takes First Step in Implementing New Audio-Visual Media Services Directive

When enacted, the Bill will transpose into Irish law the revised audio-visual media services Directive (the “Revised AVMS Directive”),¹ which Member States are required to implement by 19 September 2020. The General Scheme provides an indication of Ireland’s approach to implementing the Revised AVMS Directive, and also proposes the establishment of a new regulatory body, the Media Commission, which may have the task of regulating tech giants based here.

The Revised AVMS Directive

The Revised AVMS Directive makes important amendments to the existing audio-visual media services Directive (the “AVMS Directive”),² the key piece of EU legislation governing the provision of audio-visual media services in the EU. The driver behind the Revised AVMS Directive was the rapid evolution of the audio-visual media services market and the “ongoing convergence of television and internet services”.³

The Revised AVMS Directive makes the following key changes to the regulatory regime, among others:

• Video-Sharing Platform Services: the Revised AVMS Directive extends the EU regulatory regime to video-sharing platform services (“VSPS”), that is, platforms that allow users to generate and share videos over which the platform provider does not have editorial responsibility. The AVMS Directive currently regulates traditional television broadcasting services as well as “on-demand” services (“ODS”), such as RTÉ Player and Netflix. This change will mean that platforms such as YouTube and Vimeo are now also regulated. In addition, while the Directive is not intended to regulate social media services as such, they may fall within the definition of “VSPS” where the provision of programmes and user-generated videos constitutes an “essential functionality” of the service provided. The European Commission is set to issue guidelines on the application of the “essential functionality” criterion to social media actors and conducted a consultation on this issue earlier this year. The Revised AVMS Directive requires Member States to ensure that VSPS take “appropriate measures” to protect minors from videos that my harm their development; and to protect the public from videos containing incitement to violence or hatred and videos the dissemination of which would constitute a criminal offence.⁴

• European Works: Member States are required to ensure that ODS “secure at least a 30% share of European works in their catalogues and ensure prominence of those works.”⁵ The Revised AVMS Directive does not state how the 30% share is to be calculated, but the Commission held a public consultation on this matter earlier this year with a view to issuing guidelines in the future. The Directive does state that the 30% share obligation shall not apply to ODS with low turnover or a low audience. Member States may also waive the obligation where it would be impracticable or unjustified having regard to the nature or theme of the media services.⁶

• Independent Regulatory Body: The Revised AVMS Directive requires Member States to designate a “legally distinct and functionally independent” regulatory body that exercises its powers “impartially and transparently and in accordance with the objectives of this Directive”.⁷

• Financial Contributions for European Works: Under the existing regime, Member States may require media service providers to make financial contributions to the production of European works. Article 13 of the Revised AVMS Directive provides that Member States may additionally require financial contribution from providers who are not under their jurisdiction but who “target audiences in their territory.”⁸ Where Member States require financial contributions from providers under their jurisdiction, they are obliged to the take into account any financial contribution obligation imposed on that provider by “targeted Member States”. In addition, Recital 36 to the Revised AVMS Directive provides that “financial obligations should only be charged on the revenues generated through the audience in the targeted Member State.” The financial contribution requirements do not apply to VSPS.

The General Scheme

Parts 4 and 5 of the General Scheme, titled “On-demand Audio-Visual Services” and “Miscellaneous AVMSD Provisions” have been left blank. It seems therefore that important details regarding the implementation of the Revised AVMS Directive in Ireland are yet to be determined. The General Scheme does, however, provide an indication of the following important changes to the regulatory regime in Ireland:

• Media Commission replaces Broadcasting Authority of Ireland (“BAI”): Under the General Scheme, the BAI would be dissolved and replaced by a multi-person Media Commission, tasked with regulating the audio-visual sector. Current BAI staff would transfer to the Media Commission, which would inherit the BAI’s existing functions. The Media Commission will include an Online Safety Commissioner, with specific responsibility for regulating content on social media platforms. The Media Commission will have the following tasks and functions:
  • preparing codes and rules to be observed by audio-visual media service providers;
  • investigating and enforcing breaches of the law, including the power to impose administrative financial sanctions (subject to confirmation by the Circuit Court);
  • entering into voluntary agreements with online services established outside of the State, whereby the online services agree to comply with codes issued by the Media Commission; and
  • imposing a levy on regulated media services and “designated online services” (see below) in order to ensure it is sufficiently resourced.

• Designation of relevant online services: The Media Commission will have the power to designate “relevant online services.” In essence, this allows the Media Commission to identify individual services or categories of services that constitute VSPS to be regulated under the new regime. The consequence of a designation is that a service will be required to comply with any codes issued by the Media Commission, and will be subject to the Media Commission’s regulatory and enforcement powers. In deciding to designate an online service, the Media Commission is required to have regard to the definition of VSPS in the Bill and the European Commission’s guidance in respect of the “essential functionality” criterion, among other criteria. The Media Commission will, however, have broad discretion: the explanatory note states that while “a wide range of services” will be in scope for potential designation, “this does not imply that such services should or will be designated”, and “the Commission will take a proportionate risk-based approach to designation.” In addition to social media platforms, the types of services that may be designated by the Media Commission include: online-gaming services; public boards and forums; online search engines; and press publications (where they facilitate sharing of user-generated content).

Comment

As the deadline for transposition of the Revised AVMS Directive approaches, there will be considerable focus on Ireland’s new regime, in particular the establishment of the Media Commission. Pursuant to the jurisdictional rules in the Directive, the Media Commission will have the task of regulating providers with head offices in Ireland. Depending on the interpretation of the Directive, this could include social media giants based here.

As noted above, significant details surrounding the implementation of the Revised AVMS Directive are yet to be revealed, such as the extent of the levy imposed on providers; whether providers established outside Ireland will be required to make financial contributions to the Media Commission; the extent to which social media services will be “designated online services”; and how the 30% “European content” obligation will be calculated. Details on some of these matters will likely become clearer when European Commission guidelines are published. As the guidelines will inform the drafting of the Bill, it is likely that the Office of the Attorney General will await publication of the guidelines before finalising the draft Bill. It remains to be seen whether Government formation and the Covid-19 crisis will delay Ireland’s implementation of the Revised AVMS Directive, due by 19 September 2020.