Replacement of BAI
The 2023 Act provides for the dissolution of the Broadcasting Authority of Ireland and its statutory committees on the establishment day of the Commission. The Act provides for the transfer of the functions of the Broadcasting Authority of Ireland and its statutory committees to the Commission on establishment day. It provides for the transfer of staff of the Broadcasting Authority of Ireland to the staff of the Commission on establishment day.
There is a continuation in force, after the transfer of staff, of any superannuation schemes in effect, that a transferring staff member shall not, except in accordance with a collective agreement, be subject to less favorable terms and conditions of service than he or she was subject to before establishment day, and that the previous service of transferring staff shall be reckonable for a range of specified legislative instruments.
The Commission shall draw up the final accounts of the Broadcasting Authority of Ireland and submit a final annual report to the Minister within six months of establishment. The final accounts of the Broadcasting Authority of Ireland must be submitted to the Comptroller and Auditor General for audit, following which the relevant documents must be laid before the Houses of the Oireachtas.
The Commission may continue with the consideration of a complaint made under the Principal Act to the Broadcasting Authority of Ireland. The Commission is to consider the complaint made in line with the provision of the Act, prior to its amendment by the 2023Act.
The Commission may continue an investigation which has been commenced by the Broadcasting Authority of Ireland. The investigation is to be completed in line with the legislation prior to amendment by the Act.
The purpose of the 2023 Act is to make amendments to the Broadcasting Act, 2009, in order to provide for the establishment of a new regulator, a multi-person Coimisiún na Meán (‘the Commission’), and dissolve the existing regulator, the Broadcasting Authority of Ireland, to provide for the implementation of (EU) Directive 2018/1808, also referred to as the revised Audiovisual Media Services Directive, to provide for an updated regulatory framework for broadcasting and on-demand audiovisual media services and for a new regulatory framework for online safety, and to provide the Commission with the powers and functions to appropriately apply and enforce the new and updated regulatory frameworks.
In updating the regulatory framework for broadcasting and on-demand audiovisual media services, the Act sets out the duties of broadcasting and on-demand audiovisual media services and the powers of the Commission to make codes and rules in respect of those media services. The Act provides the Commission with the powers to ensure the availability and prominence of public service programmes and audiovisual services on interactive guides through which people select services or programmes to view on a platform or satellite television service.
The Act also requires that platform providers must carry public service audiovisual broadcasting services on their platforms when requested by a public service provider, and that public service providers must ensure that any service it provides is offered in such a way that it can be carried on platforms.
In providing for the new regulatory framework for online safety, the Act sets out defined categories of harmful online content and a definition of ‘age-inappropriate online content’, the process by which additional categories of harmful online content may be specified, provides that the Commission may make online safety codes that are binding on designated online services, and sets out the process by which online services are designated for regulation.
The Act also provides for the issuance of guidance materials on the application of online safety codes and for the protection of minors and the general public from harmful online content and age- inappropriate online content by the Commission, and the establishment of a scheme by the Commission through which nominated bodies may notify the Commission of concerns relating to the availability of harmful online content and compliance with the online safety codes, which is sometimes referred to as a ‘super-complaints scheme’.
To ensure the enforcement of online safety codes, media safety codes and media service rules and any other contravention under the Act or Broadcasting Act, 2009, the Act provides for the appointment of authorised officers by the Commission to investigate such contraventions, the making and publication of a decision by the Commission on foot of a report from an authorised officer, and for the imposition of administrative financial sanctions on providers of up to €20 million, or 10% of relevant annual turnover, by the Commission on foot of a decision.
Notices to Providers
The Act also provides for the issuance and publication of a content limitation notice by the Commission to a provider of a designated online service to remove, disable or limit access to an item of harmful online content, and, in circumstances of on-going contravention, for the application by the Commission to the High Court for an order requiring an internet service provider to block access to a relevant online service or audiovisual on-demand media service. As part of the enforcement framework, the Act provides for a number of criminal offences and sets out three categories of offence.
Grants & Levies
The Act provides that the Commission may make two new schemes for the purpose of making grants. First, a scheme may be made for the making of grants to community sound broadcasters for the purposes of supporting and promoting good professional journalistic practices and standards. The Act provides that such a scheme shall be funded under Part 10 of the Principal Act, meaning that it shall be funded by 7% of net licence fee receipts.
The Act provides that the Commission may impose a levy (the ‘European works levy’) on media service providers under the jurisdiction of the State, or those under the jurisdiction of another Member State and targeting audiences in the State. This levy shall be used to fund a scheme (the ‘European works scheme’) under which grants may be made to provide support for the production of European works to media service providers which are under the jurisdiction of the State, or target audiences in the State and are established in another Member State.
Aa “relevant online service” encompasses the pool of services which may be designated for regulation under Part 11 (Online Safety).
The 2022 Act establishes a new body, “Coimisiún na Meán” the reference throughout the Act to that body as the “Commission.
Commission functions are required to be performed effectively and efficiently. The Commission shall endeavor to ensure in performing its functions. It shall have regard to the policies of Government and the relevant Minister in respect of climate change and environmental sustainability and provides for a number of matters that the Commission may undertake in so far as they are consistent with its other functions and available resources.
The Commission may delegate the performance of its functions to an individual Commissioner, subject to a number of exclusions, particularly in relation to Part 12 (Investigations and Sanctions). The Minister, following appropriate consultation with the Commission and any other Minister of the Government, may, by order, confer additional functions on the Commission. Such additional functions must be connected with the Commission’s existing functions and relate to the regulation of services already regulated under the amended Principal Act. An order may be annulled by either House in certain circumstances.
Independence of Commission
The Commission shall be independent in the performance of its functions. The membership of the Commission shall consist of a chairperson and between three and six other Commissioners, each of which must be appointed by the Minister on the recommendation of the Public Appointments Service. A Commissioner’s term may not exceed five years, though one may serve two terms.
The chief executive officer of the Broadcasting Authority of Ireland may be appointed as a Commissioner by the Minister for a period of no more than one year from the establishment of the Commission.
Conditions of office of Commissioner
A Commissioner shall hold office on such terms and conditions that may be fixed by the Minister in consultation with the Minister for Public Expenditure and Reform and be paid such remuneration as may be determined by the Minister, with the consent of the Minister for Public Expenditure and Reform. The Act sets out the procedures by which a Government may, for specified reasons, remove a Commissioner from office, and reasons which shall cause a person to cease to hold the office of Commissioner.
There is a chairperson of the Commission, who will be responsible for managing and controlling, generally, the staff, administration and business of the Commission. Where there is a vacancy, the Minister may appoint a Commissioner to perform the functions of the chairperson.
Staff of Commission
The Commission may determine the number of staff it may appoint, the terms and conditions of such staff, and the remuneration and allowances of such staff, subject to the consent of the Minister given with the approval of the Minister for Public Expenditure and Reform.
This also provides that a member of staff shall stand seconded from employment from the Commission if he or she is nominated, elected, or co-opted as a member of either House of the Oireachtas, the European Parliament, or a local authority.
The Commission may, with the consent of the Minister and the approval of the Minister for Public Expenditure and Reform, make a scheme granting superannuation benefits to a Commissioner or to a member of staff of the Commission. Such a scheme must be laid before each House of the Oireachtas and may be annulled by either House in certain circumstances.
The Commission may establish committees to assist and advise on specified matters relating to its functions, or on other specified matters as determined by the Commission. The Commission may engage such consultants and advisers as it considers necessary for the performance of its functions, will be responsible for paying any fees due, and must have regard to the advice provided.
Power to impose levies.
The Commission may make a levy order to impose a levy on providers of audiovisual media services, sound broadcasting services, and designated online services. The Commission shall seek to ensure that the levies collected are sufficient to meet its expenses and capital requirements and that community broadcasting services shall be exempt from paying any such levy.
A levy order made shall provide for the collection, payment and administration of a levy, including the method of calculation of the levy, the times at which payment is to be made, and any provisions for exemptions, deferrals or refunds. The Commission is also obliged to account for its expenditure on the basis of the different services it levies and how the expenditure relates to the exercise of functions related to the regulation of those services.
The Commission may recover a levy payable by a simple contract debt in any court of competent jurisdiction and provides that a levy order made shall be laid before each House of the Oireachtas and may be annulled by either House in certain circumstances.
Grant to Commission
The Minister may, with the consent of the Minister for Public Expenditure and Reform, provide grants to the Commission out of moneys provided by the Oireachtas.
The Commission may borrow money for the purpose of performing any of its functions, subject to the approval of the Minister and consent of the Ministers for Public Expenditure and Reform and Finance, and any conditions they may determine. The Commission may require the payment of a deposit in respect of an application for a broadcasting contract and charge for services or facilities provided by it.
Any surplus of income in respect of a charge for services or facilities shall be applied in such manner as the Minister, after consultation with the Commission and Ministers for Finance and Public Expenditure and Reform, may direct, including making payments into the Central Fund. The Commission may recover any amount due to it n as a simple contract debt in any court of competent jurisdiction.
The Media Commission shall submit a strategy statement to the Minister as early as practicable after its establishment and every three years thereafter. Prior to the adoption of a strategy statement a public consultation must take place. Following submission of a strategy statement to the Minister, it must be laid before each House of the Oireachtas. The Media Commission shall submit to the Minister, on an annual basis, a work programme relating to the discharge of its functions.
Observations on legislative proposals and review of enactments
The Minister may direct the Commission to provide observations on legislative proposals or to undertake a review of the operation or intended operation of an enactment. Following such a direction, or of its own volition, the Commission may make a proposal to any Minister for a legislative measure on a matter related to the functions of the Commission.
The Commission, in June each year, shall submit an annual report on its activities to the Minister, which must incorporate information on such matters as the Minister may direct, information on progress made towards increasing the accessibility of audiovisual media services to people with disabilities, information on progress made to achieve the intended outcomes relating to such accessibility set out in any media service rules and information on schemes established under Part 10 of the Principal Act, which includes broadcasting funding schemes such as the existing Sound and Vision Scheme, a scheme funded by the European works levy.
The Commission may co-operate and enter into co-operation agreements with a body established in the State and may co-operate, and enter into agreements to co-operate, with a body not established in the State if that body performs similar functions to the Commission, including those which are members of the European Regulators Group for Audiovisual Media Services.
Disclosure of personal data
There is a legal basis for the Commission to disclose personal information, under specific circumstances, to specified bodies, including An Garda Síochana and the Data Protection Commission.
Co-operation with self-regulatory systems
The Commission may co-operate with a person or group of persons in the preparation by that person or group of standards, or in the establishment and administration by that person or group of a self-regulatory system, defined as a system whereby the members of a group of persons with a shared interest voluntarily adhere to rules or codes of conduct established by that group.
The Minister may issue a policy communication to the Commission, providing that the Commission may consider any communication issued to it and set out the procedures by which a policy communication shall be issued and considered.