Online Safety

Online safety

The Act provides for a definition of harmful online content, the designation of online services for regulation, the making and application of online safety codes by the Commission, the issuance of guidance materials 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:

The Act sets out the categories of online content that fall under the definition of harmful online content. The first category relates to offence-specific online content which is set out in the Act. The other categories of online content which, subject to a risk test, may be considered harmful are online content by which a person bullies of humiliates another person, by which a person promotes or encourages eating or feeding disorders, by which a person promotes or encourages self-harm or suicide, and by which a person makes available knowledge of methods of self- harm or suicide.

To meet the relevant risk test non-offence specific online content must either give rise to a risk to a person’s life or to a risk of significant harm to a person’s physical or mental health, where the harm is reasonably foreseeable.

Power to specify other harmful online content.

The Minister may make an order to give effect to a proposal by the Commission to specify further categories of harmful online content to those which are listed. Prior to making such a proposal, the Commission must be satisfied of certain matters and must also have regard to certain matters, including, for example the levels of risk of harm, in particular harm to children, from the availability of content or of exposure to it.

There are procedures that must be followed by the Commission when making a proposal and by the Minister when considering such a proposal. The Commission may make a proposal only if, inter alia, the Commission has published a draft of the proposal and undertaken a public consultation.

On receiving a proposal from the Commission, the Minister shall consult with the Joint Oireachtas Committee and either accept the proposal for consideration of Government or request the Commission to reconsider the proposal. Subject to Government approval, the Minister may then lay a draft of the order giving effect to the proposal before each House of the Oireachtas. The order is only considered if a resolution approving the draft order has been passed by each House.

The Act provides for a definition of “age-inappropriate online content”, which includes, in particular, pornography and realistic representations of gross or gratuitous violence.

Designation of online services.

The Commission may designate a relevant online service as a service to which online safety codes may be applied. The Commission may serve notice of a designation in relation to a named service, or in relation to all services falling within a category of services described in the designation. In deciding whether or not to designate a service, the Commission shall have regard to a number of matters, including the nature and scale of the service and the levels of risk of exposure to harmful online content when using the service.

The Commission may, by notice, require a provider of a service to provide information relevant to the potential designation of that service.

Requirement to designate video-sharing platform services.

The Commission, in fulfilment of the revised Directive, shall designate video-sharing platform services under the jurisdiction of the State as services to which online safety codes may be applied. The 2023 Act sets out the procedure involved in designating a relevant online service as a service to which online safety codes will be applied.

The Commission shall consult relevant providers, organisation representatives of relevant providers, relevant advisory committees established by the Commission, and any other parties the Commission considers appropriate prior to designation of a service. It sets out the requirements and timeframes for the designation of a service to take effect.

The Media Commission may revoke the designation of a relevant online service to which online safety codes apply at any time subject to the same procedures set out for the designation of that service. The Media Commission shall maintain a register of designated online services, or categories of services, and make that register available to the public.

Online safety codes

The Commission may make online safety codes to apply to designated online services. Such codes may be made with the intention of ensuring that such services take appropriate measures to minimise the availability of harmful online content and the risks arising from the availability of and exposure to such content, that service providers take any other measures that are appropriate to protect users of their services from harmful online content, that service providers take any other measures appropriate to provide for protections set out in the revised AVMSD, and that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users, particularly children.

Such codes may also provide for standards that services must meet, practices that providers must follow or measures that providers must take, standards, practices or measures relating to the moderation of content or how content is delivered, the assessment by service providers of the availability of harmful online content on services, of the risk of it being available, and of the risk posed to users by harmful online content, the making of reports by service providers to the Commission, and the handling by service providers of communications from users raising complaints.

The Act also provides that the Commission shall make an online safety code to apply to such designated online services as the Commission considers appropriate, requiring service providers to report to the Commission at intervals of not more than three months on the handling of complaints or other matters raised by users.

The 2023 Act provides for the way in which an online safety code shall be applied to a designated online service. In the first instance, the Commission must determine that the relevant code should apply to a service and give notice of that determination to the service or provider in question. Only an online safety code, or an element of such a code, which applies to the offence-specific category of harmful online content may be applied to an interpersonal communications service or a private online storage service.

Online safety codes Matters

The Act sets out the matters which must be considered by the Commission when preparing online safety codes, including the levels of availability of harmful online content on designated online services, and the levels of risk of exposure to harmful online content when using those services.

The Act sets out the procedure that the Commission must follow before making an online safety code. First, there must be consultation with any advisory Committee established by the Commission and any other parties the Commission deems appropriate. Online safety codes must also be provided to the Minister and laid, by the Minister, before the Houses of the Oireachtas. It also provides that the Commission shall, from time to time, review the operation of any online safety codes that it makes and that the Minister may request the Commission to carry out a review of an online safety code.

The Commission may by notice require information from a provider of a designated online service relating to the compliance of the provider with an online safety code. The provider shall be guilty of an offence if it fails to comply with the notice or if it provides false information in respect of the notice, knowing it is false or being reckless as to whether it is false.

Audit of complaints and complaint handling

The Commission may appoint an independent person to carry out an audit of a designated online service’s complaints and complaints-handling process in order for the Commission to assess compliance with an online safety code relating to such matters and provide the Commission with information to identify trends in complaints or other matters.

The Commission may by notice in writing require the provider of a designated online service to co-operate with the person appointed to carry out the audit. The provider shall be guilty of an office if it fails to comply with the notice. Failure to comply with an online safety code will result in a contravention for the purposes of the Act.

Guidance materials and advisory notices

The Commission may issue guidance materials for providers of relevant online services on any matter for which provision may be made by an online safety code or on a matter related to protection from harmful online content and age- inappropriate online content. Advisory notices may also be issued by the Commission where there is an urgent need to raise an issue with one or more providers of relevant online services. Appropriate consultation with any advisory committee appointed by the Commission is required before guidance materials or an advisory notice is issued.

The Commission must have regard to a number of matters when preparing guidance materials or advisory notices, including the levels of availability of any online content and of age-inappropriate online content, on relevant online services. There are procedures that the Commission must follow in order to issue guidance materials or advisory notices.

Scheme for notifications by nominated bodies.

The  Commission shall establish a scheme under which nominated bodies may notify the Commission of matters relevant to its functions under this Part, such as concerns arising from the availability of harmful online content on a designated online service, the compliance by a service with applicable online safety codes, the availability of age-inappropriate online content on a designated online service or measures taken by a service provider that are considered excessive having regard to users’ freedom of expression or other rights. It provides for procedures regarding the scheme including that the scheme must, among other things, include a process for applying and becoming a nominated body.

Duty of Commission to encourage use of mediation.

The Commission must take appropriate steps to encourage the use of mediation where there are disputes between a user and provider of a service regarding an online safety code, guidance materials or an advisory notice. The Commission may enter into voluntary arrangements with the providers of services which would be a relevant online service if under the jurisdiction of the State. Such an arrangement involves the service in question agreeing to comply with one or more online safety codes and/or guidance materials issued by the Commission.

e-Commerce compliance strategy

The Commission is to prepare an e-Commerce compliance strategy which sets out its approach to ensuring adherence to EU laws regarding the legal framework for information society services including in relation to the general monitoring of information or content.

Harmful online content

The 2023 Act sets out each of the offences that shall fall under the offence-specific category of harmful online content, and includes relevant offences set out in, for example, the Harassment, Harmful Communications and Related Offences Act 2020.