Online Safety and Media Regulation Act 2022
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PART 5 Duties, codes, and rules applying to media service providers and sound broadcasters | ||
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Duties, codes, and rules applying to media service providers and sound broadcasters | ||
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10. The Principal Act is amended by the insertion of the following Part before Part 4: | ||
“PART 3B | ||
Duties, codes, and rules applying to media service providers and sound broadcasters | ||
Chapter 1 | ||
Interpretation | ||
Interpretation | ||
46I. (1) In this Part— | ||
‘party political programme’ means a programme broadcast, or made available in a catalogue of an audiovisual on-demand media service, by or on behalf of a political party for the purpose of promoting the political party; | ||
‘political party’ means a political party registered in the Register of Political Parties; | ||
‘relevant media service provider’ means a provider of an audiovisual on-demand media service who is— | ||
(a) a corporation, or a subsidiary of a corporation, | ||
(b) a broadcasting contractor, or | ||
(c) a person who meets one or more of the conditions in subsection (2) and whose annual sales derived from activities referred to in that subsection are greater than €2 million; | ||
‘relevant service’ in relation to a relevant media service provider means an audiovisual on-demand media service provided by that provider. | ||
(2) The conditions referred to in paragraph (c) of the definition of ‘relevant media service provider’ in subsection (1) are: | ||
(a) that the person or a related person publishes a newspaper or periodical consisting substantially of news and comment on current affairs; | ||
(b) that the person or a related person is a broadcaster; | ||
(c) that the person or a related person provides programme material consisting substantially of news and comment on current affairs to a broadcaster; or | ||
(d) that the person or a related person otherwise makes available on an electronic communications network any written, audio, audiovisual or photographic material, consisting substantially of news and comment on current affairs, that is under his or her editorial control. | ||
(3) For the purposes of subsection (2), a person is a ‘related person’ if the person is part of the same group of companies (within the meaning given to that term by section 8 of the Companies Act 2014 ) as the person referred to in paragraph (c) of the definition of ‘relevant media service provider’ in subsection (1). | ||
Chapter 2 | ||
Duties | ||
Harm, offence, incitement, and authority of State | ||
46J. (1) A broadcaster shall not broadcast, and a provider of an audiovisual on‑demand media service shall not make available in a catalogue of the service— | ||
(a) anything which may reasonably be regarded as causing harm or undue offence, | ||
(b) anything which may reasonably be regarded as likely to promote, or incite to, crime, | ||
(c) anything which may reasonably be regarded as conduct falling within Article 5 of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 20179 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, | ||
(d) anything which may reasonably be regarded as likely to incite to violence or hatred directed against a group of persons, or a member of a group, based on any of the grounds referred to in Article 21 of the Charter, or | ||
(e) anything which may reasonably be regarded as tending to undermine the authority of the State. | ||
(2) A failure to comply with subsection (1) shall be a contravention for the purposes of Part 8B. | ||
Privacy | ||
46K. (1) A broadcaster shall ensure that, in programmes broadcast by the broadcaster, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon. | ||
(2) A provider of an audiovisual on-demand media service shall ensure that in programmes included in a catalogue of the service, and in the means employed to make such programmes, the privacy of any individual is not unreasonably encroached upon. | ||
(3) A failure to comply with subsection (1) or (2) shall be a contravention for the purposes of Part 8B. | ||
News and current affairs | ||
46L. (1) A broadcaster, in programmes which he or she broadcasts, and a relevant media service provider, in programmes which he or she makes available in a catalogue of the relevant service, shall ensure— | ||
(a) that news is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s or provider’s own views, and | ||
(b) that the treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned, and that the matter broadcast or made available is presented in an objective and impartial manner and without any expression of the broadcaster’s or provider’s own views. | ||
(2) Should it prove impracticable to apply subsection (1)(b) in relation to a single programme, 2 or more related programmes may be considered as a whole, if— | ||
(a) where the programmes are broadcast, they are broadcast within a reasonable period of each other, or | ||
(b) where the programmes are made available on a relevant service, they are made available in the same way on the relevant service within a reasonable period of each other. | ||
(3) Nothing in subsection (1) prevents a broadcaster from broadcasting, or a relevant media service provider from making available, party political programmes, provided that an unfair preference is not given to any political party— | ||
(a) by a broadcaster, in the allocation of time for such programmes, or | ||
(b) by a relevant media service provider, in the positioning of such programmes in a catalogue of the relevant service. | ||
(4) Subsection (1), in so far as it requires a broadcaster or a relevant media service provider not to express his or her own views, does not apply to news or current affairs relating to a proposal which— | ||
(a) concerns policy as regards broadcasting which is of public controversy or the subject of current public debate, and | ||
(b) is being considered by the Government or the Minister. | ||
(5) Subject to subsection (6), a provider of a sound broadcasting service shall ensure that the time devoted to the broadcasting of news and current affairs programmes on the service— | ||
(a) is not less than 20 per cent of the broadcasting time of the service, and | ||
(b) if the service is provided for more than 12 hours in any one day, is not less than 2 hours of the broadcasting time of the service between 07. 00 hours and 19. 00 hours. | ||
(6) The Commission may authorise a derogation in whole or in part from the requirement in subsection (5) in the case of a sound broadcasting service, if the Commission is satisfied that the derogation would be beneficial to the listeners of the service. | ||
(7) The sound broadcasting services established and maintained by RTÉ are deemed to be one sound broadcasting service for the purposes of subsection (5). | ||
(8) A failure to comply with this section shall be a contravention for the purposes of Part 8B. | ||
Advertising | ||
46M. (1) A programme broadcast, or made available in a catalogue of an audiovisual on-demand media service, may include advertisements inserted in it. | ||
(2) A broadcaster shall not broadcast, and a relevant media service provider shall not make available in a catalogue of the relevant service, an advertisement which— | ||
(a) is directed towards a political end or has any relation to an industrial dispute, or | ||
(b) addresses the issue of the merits or otherwise of adhering to any religious faith or belief, or of becoming a member of any religion or religious organisation. | ||
(3) A provider of a sound broadcasting service shall ensure that in the service the total daily time devoted to the broadcasting of advertisements does not exceed 15 per cent of the total daily broadcasting time. | ||
(4) Nothing in subsection (2)(a) prevents a broadcaster from broadcasting, or a relevant media service provider from making available, party political programmes, provided that an unfair preference is not given to any political party— | ||
(a) by a broadcaster, in the allocation of time for such programmes, or | ||
(b) by a relevant media service provider, in the positioning of such programmes in a catalogue of the relevant service. | ||
(5) Subsection (2)(a) does not apply to advertisements broadcast by a broadcaster, or advertisements made available in a catalogue of a relevant service by a relevant media service provider, at the request of the Referendum Commission, in relation to a matter referred to in section 3 of the Act of 1998 concerning a referendum. | ||
(6) A failure to comply with subsection (2) or (3) shall be a contravention for the purposes of Part 8B. | ||
Chapter 3 | ||
Media service codes and media service rules | ||
Media service codes | ||
46N. (1) The Commission may make codes (‘media service codes’) governing the standards and practices of broadcasters and providers of audiovisual on-demand media services. | ||
(2) Media service codes may provide for standards and practices to ensure— | ||
(a) that broadcasters and providers of audiovisual on-demand media services comply with sections 46J and 46K, | ||
(b) that broadcasters and relevant media service providers comply with section 46L(1) to (3), | ||
(c) that in programme material audiences are protected from anything harmful or unduly offensive, and in particular that programme material relating to gratuitous violence or sexual conduct is presented— | ||
(i) with due sensitivity to the convictions or feelings of the audience, and | ||
(ii) in such a way that children will not normally hear or see anything which may impair their physical, mental or moral development, | ||
(d) that commercial communications— | ||
(i) protect the interests of the audience, and | ||
(ii) in particular, where they relate to matters likely to be of direct or indirect interest to children, protect the interests of children having particular regard to the general public health interests of children, | ||
and | ||
(e) that the provision of a broadcasting service or audiovisual on-demand media service which has as one of its principal objectives the promotion of the interests of any organisation protects the interests of the audience. | ||
(3) Media service codes may provide that party political programmes may be broadcast or made available only at specified times. | ||
(4) Media service codes may provide for standards and practices to promote the following: | ||
(a) balanced gender representation of participants in news and current affairs programmes broadcast by broadcasters or made available by providers of audiovisual on-demand media services; | ||
(b) the broadcast in programmes broadcast on sound broadcasting services of music composed or performed by women. | ||
(5) The Commission shall make media service codes providing for the matters required to be provided for by Articles 5, 6(1), 6a(1) to (3), 7b, 8, 9, 10, 11, 15, Chapter VI, and Chapter VII (other than Article 26) of the Directive (except in so far as provision is made by media service rules). | ||
(6) The Commission shall have regard to each of the following matters in making or amending a media service code— | ||
(a) the degree of harm or offence likely to be caused by the inclusion of a particular matter in programme material, | ||
(b) the likely size and composition of the potential audience for programme material, | ||
(c) the likely expectation of the audience as to the nature of programme material, and the extent to which the nature of the programme material can be brought to the attention of potential members of the audience, | ||
(d) the likelihood of persons who are unaware of the nature of programme material being unintentionally exposed to it by their own actions, | ||
(e) the desirability of securing that the provider of a broadcasting service or an audiovisual on-demand media service informs the Commission of any change affecting the nature of the service and, in particular, of any change relevant to the application of media service codes, and | ||
(f) the desirability of maintaining the independence of editorial control over programmes. | ||
(7) Provision made for the purpose referred to in subsection (2)(d)(ii) may prohibit or restrict, in accordance with law, the inclusion in programmes of commercial communications relating to foods or beverages considered by the Commission to be the subject of public concern in respect of the general public health interests of children, in particular infant formula, follow-on formula or those foods or beverages which contain fat, trans-fatty acids, salts or sugars. | ||
(8) In preparing a media service code the Commission may consult the relevant public health authorities about any provision made for the purpose referred to in subsection (2)(d)(ii). | ||
(9) The Commission may amend or revoke a media service code. | ||
(10) A failure to comply with a media service code shall be a contravention for the purposes of Part 8B. | ||
(11) Subject to subsection (12), the following broadcasting codes prepared under section 42 of this Act before the date of coming into operation of this section shall, if in force immediately before that date, continue in force as if made under this section: | ||
(a) the General Commercial Communications Code (1 June 2017); | ||
(b) the Code of Fairness, Objectivity and Impartiality (1 July 2013); | ||
(c) the Code of Programme Standards (1 March 2015); | ||
(d) the Children’s Commercial Communications Code (2 September 2013). | ||
(12) After the coming into operation of this section, the broadcasting codes referred to in subsection (11) shall continue to apply to broadcasters only, unless otherwise amended or revoked by the Commission. | ||
Media service rules | ||
46O. (1) The Commission may make rules (‘media service rules’) for the purposes of this section. | ||
(2) Subject to subsections (3) and (4), the Commission may make media service rules in relation to the total daily times that shall be allowed for broadcasting commercial communications on a broadcasting service provided by a broadcasting contractor. | ||
(3) In the case of audiovisual broadcasting— | ||
(a) media service rules under subsection (2) shall specify the time allowed for broadcasting audiovisual commercial communications in the period between 06. 00 and 18. 00 hours and in the period between 18. 00 and 24. 00 hours each day, but | ||
(b) the time specified shall not exceed 20 per cent of the time in each period. | ||
(4) Media service rules under subsection (2) relating to sound broadcasting shall be in accordance with section 46M(3). | ||
(5) The Commission shall make media service rules requiring a broadcaster, as respects programmes broadcast by the broadcaster, and a provider of an audiovisual on-demand media service, as respects programmes made available in a catalogue of the service, to take steps to promote the understanding and enjoyment of those programmes by— | ||
(a) persons who are deaf or have a hearing impairment, | ||
(b) persons who are blind or partially sighted, and | ||
(c) persons who have a hearing impairment and are partially sighted. | ||
(6) Without prejudice to the generality of subsection (5), media service rules under that subsection shall require a media service provider to take steps to provide access to audiovisual programmes by persons within any paragraph of that subsection by means such as the provision of— | ||
(a) a sign language service, | ||
(b) subtitling, or | ||
(c) audio description. | ||
(7) Media service rules under subsection (5) shall require media service providers to have regard to whether facilities such as those referred to in subsection (6) are provided— | ||
(a) in the case of an audiovisual broadcasting service— | ||
(i) daily, or at other regular intervals, | ||
(ii) at popular viewing times, as well as at other times, and | ||
(iii) for news and news related matters, as well as for other matters, | ||
or | ||
(b) in the case of an audiovisual on-demand media service, in an easily identifiable and easily accessible manner. | ||
(8) Media service rules under subsection (5) may require a broadcaster to ensure that a specified percentage of programmes broadcast on a broadcasting service in a specified period employs specified means by which the understanding and enjoyment by persons referred to in that subsection of that percentage of programmes may be promoted. | ||
(9) Media service rules shall provide for the matters required to be provided for by Articles 6(1), 6a(1), 7, 7b, 8, 9, 10, 11, Chapter VI and Articles 23(2), 24 and 25 of the Directive (except in so far as provision is made by media service codes). | ||
(10) The Commission may amend or revoke a media service rule. | ||
(11) A failure to comply with a media service rule shall be a contravention for the purposes of Part 8B. | ||
(12) The Commission shall prepare a report for the Minister on the operation of media service rules made under subsection (5), in such form and manner as the Minister may specify, not later than 3 years after the coming into operation of this subsection, and every 3 years thereafter. | ||
(13) Subject to subsection (14), the following broadcasting rules prepared under section 43 of this Act before the date of coming into operation of this section shall, if in force immediately before that date, continue in force as if made under this section: | ||
(a) Access rules (28 January 2019); | ||
(b) Rules on Adverts and Teleshopping (28 July 2010). | ||
(14) After the coming into operation of this section, the broadcasting rules referred to in subsection (13) shall continue to apply to broadcasters only, unless otherwise amended or revoked by the Commission. | ||
Chapter 4 | ||
Retention of copies of programme material | ||
Retention of copies of programme material | ||
46P. (1) A broadcaster shall retain a copy of all programme material— | ||
(a) broadcast by the broadcaster, or | ||
(b) supplied by the broadcaster under a broadcasting contract or a content provision contract. | ||
(2) A provider of an audiovisual on-demand media service shall retain a copy of all programme material made available in a catalogue of an audiovisual on-demand media service by the provider. | ||
(3) The Commission may determine the duration for which copies of programme material shall be retained in each of the cases referred to in subsections (1) and (2) and shall publish the duration on a website maintained by it. | ||
(4) The Commission may require the broadcaster or provider referred to in subsection (1) or (2) to provide a copy of any programme material to which that subsection applies within a specified period. | ||
(5) A failure to comply with subsection (1) or (2) shall be a contravention for the purposes of Part 8B. | ||
(6) A person who fails without reasonable excuse to comply with a requirement under subsection (4) shall be guilty of a category 2 offence. | ||
(7) The making or retention of a copy of programme material for the purposes of compliance with subsection (1) or (2) is not a contravention of the Copyright and Related Rights Act 2000 . | ||
Chapter 5 | ||
Procedures in relation to media service codes and media service rules | ||
Consultation | ||
46Q. (1) Before making a media service code or media service rule, the Commission shall make a draft of it available for inspection by any person. | ||
(2) A person may make submissions to the Commission in relation to the draft referred to in subsection (1), within such period as the Commission specifies for that purpose. | ||
(3) The Commission shall publish on a website maintained by it, and may publish in a newspaper circulating in the State, notice— | ||
(a) that a draft referred to in subsection (1) is available for inspection, | ||
(b) of the place at which, or the means by which, it may be inspected, and | ||
(c) of the period specified under subsection (2) for the making of submissions. | ||
(4) The Commission shall, in finalising a draft media service code or media service rule, have regard to any submissions made during the period specified under subsection (2). | ||
Laying of codes and rules | ||
46R. (1) A copy of any media service code or media service rule made or amended, and notice in writing of the revocation of any code or rule, shall be given to the Minister as soon as practicable after the code or rule is made, amended or revoked. | ||
(2) A media service code or media service rule shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made or amended and, if a resolution annulling the code or rule is passed by either such House within the next 21 days on which that House sits after the code or rule is laid before it, the code or rule shall be annulled accordingly, but without prejudice to the validity of anything previously done under it. | ||
(3) Subject to section 46O(12), the Commission shall, from time to time as it sees fit, or at the direction of the Minister, review the effect of a media service code or media service rule and shall prepare a report in relation to that review and give it to the Minister. | ||
(4) The Minister shall cause a copy of the report referred to in subsection (3) to be laid before each House of the Oireachtas as soon as practicable after receiving it.”. | ||