Media industry waits for more than just online takedown notices

Regulation of the broadcasting sector has struggled to keep up with its realities

A more eventful 10 years for the media could hardly be imagined than the 10 years since the Broadcasting Act 2009 was signed into law. What was preoccupying regulators in the run-up to its enactment could scarcely be more irrelevant now.

Take, for example, the mini-saga of Denis O'Brien's commercial digital terrestrial television (DTT) venture that never was, which all but a handful of corporate interests and broadcasting nerds have long forgotten about. This saw Boxer DTT, a consortium half-owned by O'Brien's radio group Communicorp, "win" a licence to operate a commercial DTT, a service that would run alongside the RTÉ-operated Saorview.

In a parallel world where commercially run DTT became a thing, Boxer DTT would soon be approaching the end of its first 12-year licence to bring Ireland to "a new dimension in television viewing" through its tenancy of the RTÉ-owned DTT transmission network. Instead, it pulled the plug before launch, citing negotiation hurdles with RTÉ and the fact the economy had just plunged into darkness. Nobody, not even the losing bidders, cared to step in.

At the time, satellite merchants Sky and Virgin Media's cable forerunner UPC Ireland were on an upswing, adding subscribers and carving out the pay-TV market between them. Within years, the idea of trying to make money from a new television platform without an accompanying high-speed broadband product to flog would seem mad.

You would have to be a Californian tech company with a global footprint, functional recommendation algorithm and access to debt markets to even attempt it.

As it was, the Broadcasting Act 2009 almost immediately came to be seen as an analogue piece of legislation in an online world. The mistaken forecasts for the prospects for commercial DTT were a minor, if symbolic, plotline. The bigger picture was that the internet was taking over.

Vanishing amendments

Now “broadcasting” increasingly seems like old-school concept. There’s barely a peep about it from the Department of Communications, Climate Action and Environment. In the past few years, proposed amendments to the Broadcasting Act have been alluded to, then half-announced, before slipping quietly off the schedule.

Communicorp, for its part, has moved on from its television ambitions, though its official interactions with the regulator the Act created – the Broadcasting Authority of Ireland (BAI) – have grown increasingly blunt.

The basic theme of its testy submission to the regulator's ownership and control policy review consultation, published last week, was that as the policy doesn't address "the impact and material change" of technology, the "deeply disappointed" Communicorp shouldn't have to abide by "time-warp" regulation. It concluded with the advice that "the BAI should push to regulate other media businesses such as Google and Facebook".

Okay then, the regulator went. It has since published its own submission to the department's consultation on the – deep breath – regulation of harmful online content and implementation of the revised Audiovisual Media Services Directive (AVMSD), which was launched in March by current Minister for Communications Richard Bruton on a visit to a primary school.

The BAI, fair play to it, actually fancies being "at the nucleus" of a new regulatory body responsible for ordering Facebook, Google-owned YouTube, Twitter and other social media companies to remove video content deemed "harmful".

It quite likes the idea of implementing codes of practices and age verification checks for media shared online, then operating a “robust and transparent complaints system” with an independent appeal mechanism. And because these companies have their European headquarters here, this new BAI could wind up assuming a Data Protection Commissioner-esque authority for all of the EU.

To say this “would definitely change the nature of the organisation” and would have “resource implications”, as chief executive Michael O’Keeffe told The Irish Times, feels like an understatement.

The department's consultation, to which there was a whopping 84 responses, was really a two-for-one. It combines the Government's desire to introduce an Online Safety Act with the requirement of the State to transpose by September 2020 the provisions of the EU's AVMSD, which has new rules for on-demand platforms from Netflix to YouTube.

Alignment desire

For the BAI, this is all about “alignment”. As the aims of the directive and the proposed safety legislation are aligned, the Irish approach to them should be too.

But when Communicorp complains about Google and Facebook, its concern is less the mismatch in content regulation as it is the glaring disparity in advertising restrictions and rules on market share. Online media have captured more than half of the total Irish advertising market. Their ad revenues are estimated to be six times what they were in 2009. O’Brien’s group says it is “staggering” that the big two remain unregulated in this context. It has a point.

Not everyone agrees that there should be a single regulator anyway. Virgin Media, in its submission to the department, argued that the BAI should stick to "traditional" broadcasting services, including broadcasters' online players, and there should be a new body for video-sharing platforms (for which broadcasters shouldn't have to pay).

Attention now feels bound to swing to the mooted Online Safety Act, already a strong headline generator. But the dusty old Broadcasting Act still needs to be “opened up” and updated in myriad debatable ways. The EU has done its bit on the AVMSD directive, so there is no good reason to delay this less exciting homework.

A grand plan, if there is one, to send the BAI on some incredible leap into the world of online takedown notices – good luck with that – should wait its turn.