Internet Censorship in Ireland

Ireland's new internet censorship regime will be overseen by an Online Safety Commissioner (OSC), who will create binding online censorship rules to hold designated online service providers Providers to account for how they censor content. The OSC is also empowered under the Act to introduce an individual complaints mechanism.

Harmful content is set out in Part 11 of the new Act:

1. Offence Specific Categories sets out 42 different offences. A large proportion of these offences are offences against children, or provisions protecting the identification of child victims or child offenders. Notably the Act appears to be silent as regards identifying a child who is subject to an Order or proceedings under the Child Care Act 1991.
2. Other Categories of Harmful Online Content are set out as a two-tier category:

• (a) The Online Content must be content which bullies or humiliates another person; promotes or encourages behaviour that characterises a feeding or eating disorder; promotes or encourages self-harm or suicide; makes available knowledge of methods of self-harm or suicide.
• (b) Online Content must meet the risk test if it gives rise to: (a) any risk to a person's life; or (b) a risk of significant harm to a person's physical or mental health, where the harm is reasonably foreseeable.

This part of the Act deals with age-inappropriate content yet the Act does not provide for any age-verification measures. Earlier drafts of the Act sought to introduce robust measures to ensure a minimum age verification of account holders of 15 years old. This provision did not survive to enactment stage.

Irish President Higgins has signed the Online Safety and Media Regulation Bill into law.

The OSMR Act 2022 amends the Broadcasting Act 2009 to establish Coimisiún na Meán (a multi-person Media Commission), dissolve the Broadcasting Authority of Ireland, establish a regulatory framework for online safety, update the regulation of television broadcasting and video on-demand services, and transpose the revised Audiovisual Media Services Directive into Irish law.

The regulatory framework for online safety will be overseen by an Online Safety Commissioner, who will be empowered to make binding Online Safety Codes to hold designated online services to account for how they tackle the availability of some of the most serious forms of harmful online content. The Commissioner is also empowered under the Act to introduce an individual complaints mechanism on a phased basis, focusing initially on children and to order the removal or limitation of availability of specific items of harmful online content, either on foot of a complaint or on its own initiative.

Updates to the regulation of television broadcasting and video on-demand services will bring video on-demand services under statutory regulation for the first time. Providers of such services will, as broadcasters currently are, be subject to binding codes and rules, including in relation to advertising, accessibility and impartiality in news and current affairs.

Coimisiún na Meán will have a modern suite of robust compliance and enforcement powers, including the powers to appoint authorised officers to conduct investigations of suspected non-compliance, to require the provision of information and to seek administrative financial sanctions of up to 20 million euros or 10% of turnover. Ultimately, providers of regulated services under the Act who remain in breach of the rules may be subject to criminal prosecution.

Ireland's Minister for Communications, Climate Action and Environment Richard Bruton T.D. has published the general scheme of the Online Safety and Media Regulation Bill, to protect children online. Bruton said:

This new law is the start of a new era of accountability. It sets out a clear expectation for online services. They will have to comply with binding online safety codes made by an Online Safety Commissioner, who will have significant powers to sanction companies for non-compliance.

There are already significant regulatory and legal frameworks in place in relation to many online issues, including data protection and criminal justice responses to criminal activities online. However, there is a serious gap both internationally and in Ireland when it comes to addressing harmful online content. This new law will close this legal gap and establish a robust regulatory framework to deal with the spread of harmful online content.

The Online Safety Commissioner will be part of a new Media Commission which will replace the Broadcasting Authority of Ireland and will also take on the role of regulating the audiovisual sector.

The new Online Safety Commissioner will be responsible for designating which online services should be covered under the new law. These designated services will then be required to comply with binding online safety codes made by the Commissioner.

Each Online Safety Code will set out the steps the designated service provide must take to keep their users safe online and will depend on the type of service that is being offered. Codes will address a wide range of matters, including:

• Combating cyber bullying material and material promoting eating disorders, self-harm and suicide

• Ensuring that services operate effective complaints procedures where people can request material is taken down

• Ensuring advertising, sponsorship and product placement are not harmful and uphold minimum standards

• How companies are mitigating against risks to the prevalence of harmful content on their platforms.

It is a matter for the Commissioner to design the relevant codes and decide which codes apply to each designated service. Online services will be legally obliged to abide by the codes that apply to them.

The Online Safety Commissioner can:

• Decide the appropriate reporting requirements of compliance with online safety codes by online services

• Request information from online services about their compliance with the online safety codes that apply to them

• Audit the complaints and/or issues handling mechanisms operated by online services

• Appoint authorised officers to assess compliance and carry out audits

• The Online Safety Commissioner will establish a scheme to receive "super complaints" about systemic issues with online services from nominated bodies, including expert NGOs, and may request information, investigate or audit an online service on the basis of information received through this scheme.

If an online service is not complying with their safety code, the Online Safety Commissioner will, in the first instance, issue a compliance notice setting out what they must do to bring themselves into compliance- including the removal or restoration of content.

If the Online Safety Commissioner is not satisfied with the response and action taken by the online service, the Online Safety Commissioner can issue a warning notice. Warning notices will set out what the online service must do to bring itself into compliance and what steps the Online Safety Commissioner will take if it fails to do so.

If the Online Safety Commissioner is not satisfied with the response and action taken by the online service on foot of a warning notice then the Online Safety Commissioner can seek to impose a sanction on that service.

The Online Safety Commissioner can publish compliance and warning notices.

The Media Commission can only seek to impose a sanction on an online service if the service has failed to comply with a warning notice. The sanctions that the Media Commission can impose include:

• Financial penalties,

• Compelling the online service to take certain actions, and,

• Blocking an offending online service.

The application of each of these sanctions requires court approval.

The Irish Communications Minister Richard Bruton has scrapped plans to introduce restrictions on access to porn in a new online safety bill, saying they are not a priority.

The Government said in June it would consider following a UK plan to block pornographic material until an internet user proves they are over 18. However, the British block has run into administrative problems and been delayed until later this year.

Bruton said such a measure in Ireland is not a priority in the Online Safety Bill, a draft of which he said would be published before the end of the year.

It's not the top priority. We want to do what we committed to do, we want to have the codes of practice, he said at the Fine Gael parliamentary party think-in. We want to have the online commissioner - those are the priorities we are committed to.

An online safety commissioner will have the power to enforce the online safety code and may in some cases be able to force social media companies to remove or restrict access. The commissioner will have responsibility for ensuring that large digital media companies play their part in ensuring the code is complied with. It will also be regularly reviewed and updated.

Bruton's bill will allow for a more comprehensive complaint procedure for users and alert the commissioner to any alleged dereliction of duty. The Government has been looking at Australia's pursuit of improved internet safety.

The Broadcasting Authority of Ireland will police video content on Facebook under new proposals before the Irish Government.

The Sunday Independent reports the BAI aims to become an enlarged media commission to enforce European censorship rules.

The BAI currently regulates Irish commercial radio and television as well as RTE and TG4.

With the social media giants based in Ireland, it will now regulate content on Facebook, Twitter and YouTube in Ireland and throughout the EU.

The BAI proposals also want an Online Safety Commissioner to form part of its increased censorship role. They also speak pf age verification, parental controls and a complaints mechanism.

The Government is also keen to emulate the UK internet porn censorship regime. Irish MP Leo Varadkar said the Irish government will consult with the UK about its new porn block and how it is working, with a view to perhaps rolling out a similar age verification system for Ireland.

Varadkar said that he was wary of moralising . ..BUT... suggested engagement with UK government a year or two after the law has been rolled out would be wise. He said that this engagement could help ascertain if the proposals could work here.

During Leaders' Questions, he confirmed that an online age verification system can be discussed by the Oireachtas Communications Committee, and confirmed that legislation to set up the office of a Digital Safety Commissioner is on the way.

Justice Minister Charlie Flanagan has also said the Irish government will consider a similar system to the UK's porn block law as part of new legislation on online safety.

Ireland's Justice Minister Charlie Flanagan confirmed that the Irish government will consider a similar system to the UK's so-called porn block law as part of new legislation on online safety. Flanagan said:

I would be very keen that we would engage widely to ensure that Ireland could benefit from what is international best practice here and that is why we are looking at what is happening in other jurisdictions.

The Irish communications minister Richard Bruton said there are also issues around privacy laws and this has to be carefully dealt with. H said:

It would be my view that government through the strategy that we have published, we have a cross-government committee who is looking at policy development to ensure online safety, and I think that forum is the forum where I believe we will discuss what should be done in that area because I think there is a genuine public concern, it hasn't been the subject of the Law Reform Commission or other scrutiny of legislation in this area, but it was worthy of consideration, but it does have its difficulties, as the UK indeed has recognised also.