Online Safety and Media Regulation Act 2022

• Permanent Page URL

PART 11

Online safety

Online safety

45. The Principal Act is amended by the insertion of the following Part after Part 8:

“PART 8A

Online safety

Chapter 1

Interpretation: harmful online content and age-inappropriate online content

Harmful online content

139A. (1) For the purposes of this Act, online content is ‘harmful online content’ if it is one of the following 2 kinds:

(a) content that falls within one of the offence-specific categories of online content defined in subsection (2);

(b) content that—

(i) falls within one of the other categories of online content defined in subsection (3), and

(ii) meets the risk test defined in subsection (4).

(2) The offence-specific categories of online content are—

(a) the categories listed in Schedule 3, and

(b) any category specified for the purposes of this paragraph by order under section 139B.

(3) The other categories of online content are:

(a) online content by which a person bullies or humiliates another person;

(b) online content by which a person promotes or encourages behaviour that characterises a feeding or eating disorder;

(c) online content by which a person promotes or encourages self-harm or suicide;

(d) online content by which a person makes available knowledge of methods of self-harm or suicide;

(e) any category specified for the purposes of this paragraph by order under section 139B.

(4) Online content meets the risk test for the purposes of subsection (1)(b)(ii) 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.

(5) For the purposes of this Act, any question whether particular online content falls within a category under this section shall be determined on the balance of probabilities.

Power to specify other harmful online content

139B. (1) If the Commission makes a proposal to the Minister that a category of online content should be specified for the purposes of section 139A(2)(b) or (3)(e), the Minister may make an order giving effect to the proposal.

(2) Section 139C sets out the procedure for proposals and orders under subsection (1).

(3) A proposal under subsection (1) that a category of online content should be specified for the purposes of section 139A(2)(b), and an order giving effect to such a proposal, may be made only if—

(a) it is a category of content by which a person does a thing contrary to an enactment specified in the proposal, and

(b) the thing done is an offence under that enactment.

(4) The Commission may make a proposal under subsection (1) only if satisfied—

(a) that giving effect to the proposal will enable the Commission to take action against significant risks posed by the content within the proposed category,

(b) that those risks are not sufficiently addressed by available means (including means available to other regulators, providers of relevant online services, or others), and

(c) that, having regard to the protection of children, to the protection of the public generally, and to all other relevant considerations, it is in the public interest to give effect to the proposal.

(5) In deciding whether to make a proposal under subsection (1), the Commission shall have regard in particular to—

(a) levels of availability of any online content on relevant online services,

(b) levels of risk of exposure to any online content when using relevant online services,

(c) levels of risk of harm, and in particular harm to children, from the availability of content or exposure to it,

(d) changes in the nature of online content and in levels of availability and risk referred to in paragraphs (a) to (c),

(e) the impact of automated decision-making in relation to content delivery and content moderation by relevant online services, and

(f) the rights of providers of designated online services and of users of those services.

Procedure for proposals and orders under section 139B

139C. (1) The Commission may make a proposal under section 139B(1) only if—

(a) the Commission has published a draft of the proposal in a way that it thinks appropriate to bring it to the attention of members of the public,

(b) it has published with the draft a notice stating how members of the public may submit comments to it, and within what time,

(c) it has consulted about the draft any advisory committee it has established for that purpose under section 19,

(d) it has carried out any other consultation that it considers appropriate on the draft, and

(e) it has considered any comments submitted to it in accordance with a notice under paragraph (b) or in consultation under this subsection.

(2) On receiving a proposal the Minister shall—

(a) consult the Joint Oireachtas Committee,

(b) consider the proposal in the light of that consultation and any other consultation the Minister considers appropriate, and

(c) respond to the Commission within a reasonable time.

(3) The Minister’s response must be either—

(a) to accept the proposal for consideration by the Government, or

(b) to request the Commission to reconsider the proposal.

(4) The Minister may make an order under section 139B(1) giving effect to a proposal only if—

(a) the Minister has accepted the proposal for consideration by the Government, and

(b) the Government has approved the proposal.

(5) The Minister may accept a proposal for consideration, and the Government may approve a proposal, only if satisfied of the matters listed in section 139B(4).

(6) In deciding whether to accept or approve a proposal, the Minister and the Government shall have regard in particular to the matters listed in section 139B(5).

(7) Where an order is proposed to be made under section 139B(1), a draft of the order shall be laid by the Minister before each House of the Oireachtas and the order shall not be made unless a resolution approving the draft has been passed by each such House.

Age-inappropriate online content

139D. In this Part, ‘age-inappropriate online content’ means online content that is likely to be unsuitable for children (either generally or below a particular age), having regard to their capabilities, their development, and their rights and interests, including in particular content consisting of—

(a) pornography, or

(b) realistic representations of, or of the effects of, gross or gratuitous violence or acts of cruelty.

Chapter 2

Designated online services

Designation of online services

139E. (1) The Commission may designate a relevant online service as a service to which online safety codes may be applied under Chapter 3.

(2) A designation under this section may be made in relation to a named service, or in relation to all services falling within a category of services described in the designation (and a service may be designated both as a named service and as falling within a category).

(3) Subject to section 139G the Commission, in deciding whether to designate a named service or a category of services, shall have regard in particular to—

(a) the nature and the scale of the service or of services within the category,

(b) provision made or that may be made by online safety codes that may be applied to the service or to services within the category,

(c) other provisions of or made under this Act that apply to designated online services,

(d) levels of availability of harmful online content on the service, or on services within the category,

(e) levels of risk of exposure to harmful online content when using the service, or services within the category,

(f) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it on the service, or on services within the category,

(g) the rights of the provider of the service, or providers of services within the category, and

(h) the rights of users of the service, or users of services within the category.

Power to require information relevant to designation

139F. (1) The Commission may by notice in writing require the provider of a relevant online service to provide the Commission with any information relating to the service that appears to the Commission to be—

(a) relevant to a decision under section 139E as to whether to designate the service as a named service,

(b) relevant to a decision under section 139E as to whether to designate a category of services including the service, or

(c) required for inclusion in the register under section 139J.

(2) A provider who fails, without reasonable excuse, to comply with a notice under subsection (1) shall be guilty of a category 1 offence.

Requirement to designate video-sharing platform services

139G. (1) The Commission shall designate as a category of services under section 139E the video-sharing platform services the provider of which is under the jurisdiction of the State.

(2) The Commission shall designate as a named service under section 139E any relevant online service that appears to the Commission to be a video-sharing platform service the provider of which is under the jurisdiction of the State.

(3) Where the Commission has reason to believe that a relevant online service may be a video-sharing platform service the provider of which is under the jurisdiction of the State, the Commission shall issue a notice under section 139F requiring the provision of any information that appears to the Commission to be relevant for the purpose of complying with subsection (2).

(4) For the purposes of subsections (2) and (3) the Commission shall have regard to any guidelines issued by the European Commission in respect of the practical application of the essential functionality criterion in the definition of a video-sharing platform service in Article 1(1)(aa) of the Directive.

Procedure for designation of online services

139H. (1) Before designating a service under this Chapter, the Commission shall consult—

(a) where the designation is of a named service, the provider of the service,

(b) where the designation is of a category of services—

(i) an organisation representative of providers of services falling within the category, if there is such an organisation, and

(ii) the providers of those services, so far as the Commission is able to consult them,

(c) any advisory committee the Commission has established for that purpose under section 19, and

(d) any other person the Commission considers appropriate.

(2) Subsections (1)(a) and (1)(b)(i) do not apply in the case of a provider or organisation if, after taking reasonable steps to consult it, the Commission is unable to do so.

(3) A designation under this Chapter takes effect—

(a) in the case of a named service, on the Commission giving the provider of the service notice in writing of the designation, and

(b) in the case of a category of services, at the end of the period of 28 days after the date on which notice of the designation is published by the Commission on a website maintained by it.

Revocation of designation

139I. (1) The Commission may, subject to section 139G(1) and (2), at any time revoke a designation under section 139E.

(2) Sections 139E(3), 139F and 139H apply in relation to revocation of a designation of a named service or a category of services as they apply in relation to a designation.

Register of designated online services

139J. (1) The Commission shall maintain and make available to the public a register of—

(a) the services for the time being designated under this Chapter as named services, and

(b) the categories of services for the time being designated under this Chapter.

(2) The register shall state—

(a) for each named service—

(i) the provider of the service,

(ii) the address of the provider and any other information the Commission considers appropriate about how the provider may be contacted by members of the public, and

(iii) any designated category of services that the named service appears to the Commission to fall within,

and

(b) for each named service and each category of services, any online safety code under Chapter 3 that applies to that service or to the services within that category.

Chapter 3

Online safety codes

Online safety codes

139K. (1) The Commission may make codes (‘online safety codes’), to be applied to designated online services in accordance with section 139L.

(2) An online safety code may make provision with a view to ensuring—

(a) that service providers take appropriate measures to minimise the availability of harmful online content and risks arising from the availability of and exposure to such content,

(b) that service providers take any other measures that are appropriate to protect users of their services from harmful online content,

(c) that service providers take any other measures that are appropriate to provide the protections set out in Article 28b(1)(a), (b) and (c) of the Directive, and

(d) that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children.

(3) In the case of video-sharing platform services, the Commission shall exercise its powers under this section with a view to ensuring (without prejudice to any other exercise of those powers in relation to video-sharing platform services) that service providers—

(a) take appropriate measures to provide the protections referred to in subsection (2)(c), including appropriate measures referred to in Article 28b(3) of the Directive,

(b) comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are marketed, sold or arranged by them, and

(c) take appropriate measures to comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are not marketed, sold or arranged by them, taking into account the limited control they exercise over those communications.

(4) Without prejudice to subsection (2) an online safety code may provide for:

(a) standards that services must meet, practices that service providers must follow, or measures that service providers must take;

(b) in particular, standards, practices or measures relating to the moderation of content or to how content is delivered on services;

(c) 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;

(d) the making of reports by service providers to the Commission;

(e) the handling by service providers of communications from users raising complaints or other matters.

(5) Without prejudice to subsection (2) or (4), an online safety code may prohibit or restrict, in accordance with law, the inclusion in programmes or user-generated content 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 foods or beverages which contain fat, trans-fatty acids, salts or sugars.

(6) Without prejudice to subsection (4), the Commission shall make an online safety code, to be applied in accordance with section 139L to such designated online services as the Commission considers appropriate, requiring the service provider to report to the Commission at intervals, specified in the code, of not more than 3 months on the provider’s handling of communications from users raising complaints or other matters.

(7) In this section, ‘service provider’ means the provider of a designated online service.

Application of online safety codes

139L. (1) An online safety code applies to a designated online service if—

(a) the Commission has determined that the code is to apply to the service, or to a designated category of services that includes the service,

(b) the Commission has given notice of the determination, and the notice has taken effect, in accordance with subsection (2), and

(c) the determination has not been revoked.

(2) Notice under subsection (1)(b)—

(a) in the case of a service designated as a named service, must be given to the provider of the service in writing, and takes effect when the notice is given to the provider, and

(b) in the case of a designated category of services, must be given by publication of notice of the determination on a website maintained by the Commission, and takes effect at the end of the period of 28 days after the date on which the notice is published on the website.

(3) Before making or revoking a determination under subsection (1) in relation to a named service or a category of services, the Commission shall have regard in particular to—

(a) the nature and the scale of the service, or of services within the category,

(b) levels of availability of harmful online content on the service, or on services within the category,

(c) levels of risk of exposure to harmful online content when using the service, or services within the category,

(d) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it on the service, or on services within the category,

(e) the rights of the provider of the service, or providers of services within the category, and

(f) the rights of users of the service, or users of services within the category.

(4) Before making or revoking a determination under subsection (1), the Commission shall consult—

(a) where the designation is of a named service, the provider of the service,

(b) where the designation is of a category of services—

(i) an organisation representative of providers of services falling within the category, if there is such an organisation, and

(ii) the providers of those services, so far as the Commission is able to consult them,

(c) any advisory committee the Commission has established for that purpose under section 19, and

(d) any other person the Commission considers appropriate.

(5) An online safety code applying to an interpersonal communications service or a private online storage service applies to that service only in so far as it relates to content that falls within one of the offence‑specific categories of online content defined in section 139A(2).

(6) In this section—

‘interpersonal communications service’ means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information between a finite number of persons by means of electronic communications networks, where the persons initiating or participating in the communication determine its recipients, but it does not include services which enable interpersonal and interactive communication only as a minor ancillary feature that is intrinsically linked to another service;

‘private online storage service’ means any service providing online storage, other than—

(a) local or temporary storage, or

(b) storage provided for the purpose of enabling the provision of another service, or as a minor ancillary feature intrinsically linked to another service;

‘temporary storage’ means the automatic, intermediate and temporary storage of information for the sole purpose of making more efficient onward transmission of that information.

Online safety codes: matters to be considered

139M. When preparing an online safety code the Commission shall have regard in particular to—

(a) the desirability of services having transparent decision-making processes in relation to content delivery and content moderation,

(b) the impact of automated decision-making on those processes,

(c) the need for any provision to be proportionate having regard to the nature and the scale of the services to which a code applies,

(d) levels of availability of harmful online content on designated online services,

(e) levels of risk of exposure to harmful online content when using designated online services,

(f) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it,

(g) the rights of providers of designated online services and of users of those services, and

(h) the e-Commerce compliance strategy prepared under section 139ZF.

Online safety codes: procedure

139N. (1) Before making an online safety code, the Commission—

(a) shall consult—

(i) any advisory committee it has established for that purpose under section 19, and

(ii) any other person the Commission thinks appropriate,

and

(b) may consult a public health authority about any provision of an online safety code referred to in section 139K(2)(d) which it proposes to make.

(2) As soon as practicable after making an online safety code, the Commission shall give a copy of the code to the Minister.

(3) As soon as practicable after receiving a copy of an online safety code under subsection (2), the Minister shall lay copies of the code before each House of the Oireachtas.

(4) The Commission may at any time amend or revoke an online safety code, or any provision of an online safety code, and subsections (1) to (3) apply to an amendment or revocation of an online safety code as they apply to an online safety code.

(5) The Commission shall from time to time review the operation of any online safety code it makes.

(6) If the Minister makes a request in writing to the Commission to review the operation of an online safety code, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.

(7) The Commission shall publish a report given to the Minister under subsection (6) on a website maintained by the Commission.

Compliance with online safety codes: information notices

139O. (1) The Commission may by notice in writing require the provider of a designated online service to provide the Commission with information relating to the provider’s compliance with an online safety code over any period, and may require such information to be provided periodically for a succession of periods.

(2) A notice must—

(a) identify the information to be provided and the period or periods it must relate to, and

(b) state when the information is to be provided.

(3) A notice may not require information to be provided before the end of the period of 7 days beginning on the date on which the notice is received by the provider.

(4) The Commission may at any time by notice in writing extend the time within which information is to be provided.

(5) If within the period referred to in subsection (3) the provider requests the Commission to make an extension under subsection (4), the period beginning with the date on which the Commission receives the request and ending on the date notice of the Commission’s decision on the request is received by the provider does not count towards the time within which the information is to be provided.

(6) The provider of a designated online service is guilty of a category 1 offence if—

(a) the provider fails without reasonable excuse to comply with a notice under subsection (1), or

(b) in purported compliance with a notice under subsection (1), the provider provides false information, knowing that it is false or being reckless as to whether it is false.

(7) If the Commission is notified by a nominated body of a matter that appears to the Commission to be relevant to a provider’s compliance with an online safety code, the Commission shall consider that matter for the purpose of deciding whether to exercise its functions under this section.

Audit of complaints and complaint handling

139P. (1) The Commission may appoint a person to carry out an audit under this section, and may by notice in writing require the provider of a designated online service to co-operate with any person appointed.

(2) A notice under subsection (1) may relate to audits to be undertaken periodically, at intervals specified in the notice.

(3) The purpose of an audit under this section is—

(a) to enable the Commission to assess compliance by the provider with provisions of an online safety code that relate to the handling of communications by which users raise complaints or other matters relating to designated online services with the providers of those services, and

(b) to provide the Commission with information to identify any trends in complaints or other matters raised by such communications that may be relevant to the Commission’s functions under this Part.

(4) A person appointed to carry out an audit under this section—

(a) must be independent of the provider, and

(b) must not be a Commissioner, or a member of the staff of the Commission.

(5) A notice under this section must—

(a) identify the person appointed to carry out the audit,

(b) identify the provisions of the online safety code that the audit is to assess compliance with,

(c) state when the audit is to commence,

(d) specify the co-operation that may be requested by the person appointed, and

(e) require the provider to provide that co-operation, subject to reasonable notice being given by the person appointed.

(6) The co-operation that may be specified under subsection (5)(d) may include the taking, on reasonable notice from the person carrying out the audit, of steps specified by that person that are reasonably required to assist the carrying out of an audit under this section.

(7) A person who carries out an audit under this section shall provide the Commission with a report on the audit, setting out any information relevant to an assessment in accordance with subsection (3)(a), and any information relevant for the purposes of subsection (3)(b).

(8) The Commission shall provide a copy of the report—

(a) to the provider concerned, and

(b) to the Minister,

and shall give the provider an opportunity to make representations in writing to the Commission on the report within such period as the Commission specifies.

(9) After considering any representations made under subsection (8), the Commission shall publish the report on a website maintained by it, with any redactions the Commission considers necessary on grounds of the personal, confidential or commercially sensitive nature of any part of the report.

(10) If the Commission is notified by a nominated body of a matter that appears to the Commission to be relevant to compliance by a provider with a provision of the kind mentioned in subsection (3)(a), the Commission shall consider that matter for the purpose of deciding whether to exercise its functions under this section.

(11) A provider who fails without reasonable excuse to comply with a notice under subsection (1) shall be guilty of a category 1 offence.

Enforcement of online safety codes

139Q. A failure by a provider of a designated online service to comply with an online safety code that applies to the service shall be a contravention for the purposes of Part 8B.

Chapter 4

Complaints to Commission about harmful online content

Complaints to Commission about harmful online content

139R. Where a scheme under section 139V provides for the making of a complaint to the Commission on the grounds that harmful online content is available on a designated online service, the Commission may deal with the complaint in accordance with this Chapter and the provisions of the scheme.

Complaints which may be considered by Commission

139S. (1) Subject to subsection (2), the Commission may not consider a complaint under this Chapter unless it is satisfied that the following conditions are met:

(a) the complainant has made a complaint to the provider of the designated online service concerned about the availability of the content on the service;

(b) a period of more than 2 days has elapsed since the complainant made the complaint to the provider;

(c) where the provider operates a process in accordance with an online safety code for handling such a complaint, the complainant has taken reasonable steps in that period to have the complaint resolved through that process.

(2) Where the Commission is not satisfied that the conditions in subsection (1) are met, it may consider a complaint under this Chapter if it considers it appropriate to do so having regard to the principles referred to in section 139U.

(3) Where a complaint relates to content which falls within one of the offence-specific categories of harmful online content defined in section 139A(2), the Commission may consider the complaint under this Chapter only if—

(a) the Commission has brought the complaint to the attention of the Garda Síochána, or any other body the Commission considers appropriate,

(b) the Commission has informed the complainant and the provider of the designated online service that it has done so, and

(c) where the complaint was brought to the attention of the Garda Síochána, the Garda Síochána has informed the Commission that they do not intend to take any action, or any further action, in relation to the availability of the content on the service concerned.

Resolution of complaints

139T. (1) The Commission may take any of the following actions for the purpose of resolving a complaint under this Chapter:

(a) referring the complaint to the provider concerned with such advice, guidance or support as the Commission considers appropriate;

(b) bringing the complaint to the attention of another body, where the Commission considers the complaint relates to the activities of that body;

(c) giving the provider a notice under section 139ZZD(1);

(d) dismissing the complaint where the Commission concludes that the content is not harmful online content, or is no longer available on the designated online service;

(e) dismissing the complaint where the Commission finds that the complaint is frivolous or vexatious;

(f) taking any other action provided for in a scheme under section 139V.

(2) Where the Commission concludes its consideration of a complaint under this Chapter but does not consider any action within subsection (1) to be appropriate, it shall provide such advice, guidance or support to the complainant as it considers appropriate.

Principles for resolution of complaints

139U. In dealing with complaints under this Chapter, the Commission shall have regard to—

(a) the rights of—

(i) the complainant,

(ii) the person who uploaded the content to the designated online service,

(iii) the provider of the designated online service,

(iv) the users of the designated online service, and

(v) any person to whom the content relates or at whom it is directed,

(b) the interests of any child concerned as complainant, as the person who uploaded the content to the designated online service, or as a person to whom the content relates or at whom it is directed,

(c) the levels of risk of harm, and in particular harm to children, from the availability of the content or exposure to it, and

(d) the desirability of resolving the complaint efficiently.

Complaint scheme: content

139V. (1) Subject to this Chapter the Commission may make a scheme providing for the making and resolution of complaints referred to in section 139R.

(2) The Commission may make a scheme relating to complaints about the availability of a type of harmful online content on designated online services only if there is an online safety code that—

(a) applies to the designated online services concerned, and

(b) relates to the handling, by those providers, of communications from users raising complaints about harmful online content of that type.

(3) A scheme shall provide, in particular, for—

(a) the content of a complaint,

(b) the procedures by which a complaint may be made,

(c) the procedures the Commission shall follow in considering and resolving complaints,

(d) the making of representations in relation to the complaint by the person who uploaded the content that the complaint is about to the designated online service,

(e) the requirements the Commission may impose on providers of designated online services for the purpose of resolving complaints, and

(f) the procedures by which the Commission shall inform the complainant of the Commission’s resolution of the complaint.

(4) A complaint shall contain, in particular—

(a) a description of the content that the complaint is about,

(b) a description of the category of harmful online content into which the complainant considers the content falls, and the reasons for that consideration,

(c) a description of the location of the content on the designated online service, and

(d) evidence that the conditions in section 139S(1) are met.

Complaint scheme: procedure

139W. (1) Before making a scheme under section 139V, the Commission shall consult—

(a) any advisory committee it has established for that purpose under section 19, and

(b) any other person the Commission thinks appropriate.

(2) The Commission shall give the Minister a copy of any scheme made under section 139V as soon as practicable after it is made.

(3) The Commission may amend or replace a scheme made under section 139V, and subsections (1) and (2) apply to the amendment of a scheme as they apply to the making of a scheme.

(4) A scheme made under section 139V, and any amendment of it, shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made.

Implementation of schemes

139X. (1) The Commission shall prepare a plan describing the period within which, and the manner in which, it proposes to make schemes under section 139V such that, in any case where there is an online safety code that relates to the handling, by providers of designated online services, of communications from users raising complaints about harmful online content of any type, the Commission is able to deal with complaints about the availability of that type of harmful online content on any designated online service to which the code is applied under section 139L.

(2) The Commission’s proposals in the plan prepared under subsection (1) shall prioritise the making of schemes under section 139V relating to complaints about harmful online content relating to or directed at children.

(3) A plan prepared under subsection (1) shall be given to the Minister and published on a website maintained by or on behalf of the Commission as soon as practicable after it is prepared.

Review of operation of scheme

139Y. (1) The Commission shall review the operation of this Chapter at the end of the period of 5 years after the date of its coming into operation.

(2) Without prejudice to subsection (1), the Commission shall review the operation of a scheme under section 139V where the Minister requests the Commission in writing to do so.

(3) The Commission shall give a report of a review to the Minister as soon as practicable after completing the review.

(4) The Commission shall publish the following annually on a website maintained by it:

(a) the number of complaints it has received in the previous year under a scheme and how those complaints were resolved;

(b) the categories of harmful online content to which the complaints related;

(c) such case studies of complaints as it considers appropriate.

Chapter 5

Online safety guidance materials and advisory notices

Guidance materials and advisory notices

139Z. (1) The Commission may issue guidance materials for providers of relevant online services—

(a) on identifying harmful online content, and in particular on the application of subsection (4) of section 139A,

(b) on any other matter relating to the operation of this Part or for which provision may be made by an online safety code, and

(c) otherwise for the protection of minors and the general public from harmful online content and age-inappropriate online content.

(2) Before issuing guidance materials under subsection (1), the Commission shall consult—

(a) any advisory committee it has established for that purpose under section 19, and

(b) any other person the Commission thinks appropriate.

(3) Where the Commission considers there is an urgent need to bring to the attention of a provider or providers of relevant online services any matter on which guidance materials may be issued under this section, the Commission may issue an online safety advisory notice to the provider or providers on the matter.

(4) Before issuing an advisory notice under subsection (3), or as soon after as is practicable, the Commission shall consult—

(a) any advisory committee it has established for that purpose under section 19, and

(b) any other person the Commission thinks appropriate.

Guidance materials and advisory notices: matters to be considered

139ZA. In preparing guidance materials or advisory notices under section 139Z, the Commission shall have regard in particular to—

(a) Article 28b of the Directive,

(b) the desirability of services having transparent decision-making processes in relation to content delivery and content moderation,

(c) the impact of automated decision-making on those processes,

(d) the need for any provision to be proportionate having regard to the nature and the scale of the services concerned,

(e) levels of availability of any online content, and of age‑inappropriate online content, on relevant online services,

(f) levels of risk of exposure to harmful online content, or of exposure of children to age-inappropriate online content, when using relevant online services,

(g) levels of risk of harm, and in particular harm to children, from the availability of such content or exposure to it,

(h) the rights of providers of relevant online services and of users of those services, and

(i) the e-Commerce compliance strategy prepared under section 139ZF.

Guidance materials and advisory notices: procedure

139ZB. (1) This section applies to any guidance materials or advisory notices issued by the Commission under section 139Z.

(2) The Commission shall—

(a) publish any guidance materials or advisory notices in whatever way it thinks appropriate, and

(b) take any other steps it considers appropriate to bring guidance materials or advisory notices to the attention of providers of services to which they are relevant.

(3) As soon as practicable after issuing guidance materials or an advisory notice, the Commission shall give a copy to the Minister.

(4) If the Minister makes a request in writing to the Commission to review guidance materials or an advisory notice, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.

(5) The Commission may at any time withdraw guidance materials or an advisory notice.

Chapter 6

Ancillary matters

Scheme for notifications by nominated bodies

139ZC. (1) The Commission shall make a scheme under which bodies are nominated by it for the purpose of notifying the Commission of matters relevant to its functions under this Part.

(2) Where a nominated body notifies the Commission in accordance with a scheme, the Commission shall inform the nominated body of any action taken by the Commission as a result of the notification.

(3) The matters that may be notified to the Commission under a scheme shall include, but need not be limited to, the following:

(a) concerns arising from the manner in which a designated online service purports to comply with the online safety codes that apply to it;

(b) concerns relating to the availability of harmful online content on a designated online service or a relevant online service;

(c) concerns relating to the availability of age-inappropriate online content on a designated online service or a relevant online service;

(d) measures taken by the provider of a designated online service, in purported compliance with an online safety code, which the nominated body considers excessive having regard to users’ freedom of expression or other rights, or for any other reason.

(4) A scheme shall in particular provide for the following:

(a) the procedure for applying for nomination, and the nomination process;

(b) the criteria for nomination;

(c) revocation of a nomination;

(d) matters of which nominated bodies may notify the Commission;

(e) the form and content of a notification;

(f) the process by which notification is to be given by a nominated body and acknowledged by the Commission;

(g) the process by which the Commission is to inform a nominated body of any action taken by the Commission as a result of a notification.

(5) As soon as practicable after making a scheme under this section, the Commission shall give a copy to the Minister.

(6) If the Minister makes a request in writing to the Commission to review a scheme under this section, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.

(7) The Commission may at any time amend or replace a scheme under this section.

(8) Subsection (5) applies to the amendment or replacement of a scheme as it applies to the making of a scheme.

(9) A scheme and any amendment of a scheme under this section shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made.

(10) In this section, ‘scheme’ means a scheme made under this section.

(11) In this section and sections 139O and 139P, ‘nominated body’ means a body nominated by the Commission under a scheme.

Duty of Commission to encourage use of mediation

139ZD. The Commission shall take whatever steps it considers appropriate to encourage the use by users and providers of mediation by an independent mediator to resolve any dispute arising from users’ complaints about a provider taking or not taking any action—

(a) in response to an online safety code, or

(b) in response to guidance materials or an advisory notice issued under section 139Z.

Voluntary arrangements with providers in third countries

139ZE. (1) This section applies if the Commission enters into a voluntary arrangement, within the meaning assigned to it by subsection (2), with the provider of a service, where—

(a) the provider is not under the jurisdiction of the State or another Member State, but

(b) the service would be a relevant online service if the provider were under the jurisdiction of the State.

(2) In this section, a ‘voluntary arrangement’ means an arrangement under which the provider agrees, for the period during which the arrangement is in force—

(a) that the provider will comply with any online safety code, and any guidance materials issued under section 139Z, that may be specified in the arrangement, to the extent specified in the arrangement,

(b) that the provider will comply with any request made by the Commission under subsection (5), and

(c) that the Commission may publish the information it is required to publish in accordance with subsections (4) and (6).

(3) The Commission shall notify the Minister of any voluntary arrangement it enters into.

(4) The Commission shall publish, on a website maintained by it, the following details of any voluntary arrangement it enters into with a provider:

(a) the name of the provider and any other information necessary to identify the provider;

(b) the matters specified in accordance with subsection (2)(a).

(5) The Commission—

(a) may request information from the provider regarding its compliance with any online safety code or guidance materials, to the extent that it has agreed to comply with them, and

(b) may request the provider to provide such information on a periodic basis.

(6) If it appears to the Commission that there has been a failure by a provider to comply with an online safety code, guidance materials, or a request under subsection (5), the Commission may publish, on a website maintained by it, a notice of the failure, and information about the nature of the failure.

(7) The Commission shall keep any voluntary arrangement under review.

(8) The Commission or the provider may at any time end a voluntary arrangement by notice in writing to the other.

e-Commerce compliance strategy

139ZF. (1) The Commission shall prepare, and may revise, an e-Commerce compliance strategy setting out its approach to ensuring that—

(a) no requirements that are inconsistent with the limitations placed on the liability of intermediary service providers by regulations 16 to 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S. I. No. 68 of 2003 ), and

(b) no general obligation on providers, when providing the services covered by regulations 16 to 18 of those Regulations, to monitor the information which they transmit or store, and no general obligation actively to seek facts or circumstances indicating illegal activity, contrary to Article 15 of the E-Commerce Directive,

are imposed, by virtue of online safety codes or online safety guidance materials or advisory notices.

(2) Before preparing an e-Commerce compliance strategy the Commission shall consult—

(a) any advisory committee it has established for that purpose under section 19, and

(b) any other person the Commission thinks appropriate.

(3) The Commission shall publish an e-Commerce compliance strategy prepared or revised under this section on a website maintained by it.”.