Coimisiún na Meán has published an online safety code setting binding rules for video-sharing platforms with EU headquarters in Ireland, including Facebook, Instagram, LinkedIn, TikTok and others.
The code implements the 2018 EU Audiovisual Media Services Directive and aims to mitigate the potential harms caused by content hosted on these platforms.
The main obligations imposed on the platforms are to prohibit the uploading of harmful content and prevent children from accessing such content, including having age verification measures. Parental controls must also be provided for children under 16.
The code contains a set of general obligations that will come into effect next month and also a more detailed set of prescriptive obligations that the platforms have nine months to meet. There will be no formal review of compliance, but the commission says it will actively supervise the platforms.
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The commission will not dictate how the various platforms should meet their obligations under the code, and it acknowledges that some platforms have already put in place measures to mitigate harm in this area.
The code is best seen as setting a standard that platforms must meet whichever way they choose. But if they are found to have failed to fulfil their obligations, they can face fines of up to €20 million or 10 per cent of their annual turnover.
The majority of the bigger video-sharing platforms have their EU headquarters here, which means Ireland once again finds itself the lead regulator at the European level. Our performance in this regard when it came to data protection was a source of friction with other European states and responsibility for regulating the larger entities in this area has now been subsumed by Brussels.
For all these reasons it is vital that the commission has the resources, ambition and political backing to fulfil its mandate.
The self-regulatory approach adopted by the commission has obvious flaws but it reflects the near impossibility of imposing a one-size-fits-all approach given the different business models and technologies adopted by video-sharing platforms.
The main drawback of this approach is that adjudicating whether a platform has complied with the code will always be subjective. The platforms can and will be able to argue that their approach is compliant with the code.
It is not too hard to imagine disputes of this nature progressing the whole way to the European Court Justice and taking years to be resolved. The deep pockets of the organisations involved and the cultural antipathy of at least some of them to European public interest regulation makes this almost inevitable.