The much-anticipated Online Safety and Media Regulation Bill 2022, and the lesser-known Digital Services Act, look set to shift the regulatory focus from one of industry protection to one of industry obligation.
However, the arrival of both sets of regulatory proposals, so closely together and targeting the same sectors, has led to accusations of possible ‘rule duplication’.
Protective directive
Recital 8 of the eCommerce Directive indicates that its purpose was to create a legal environment that facilitated the free movement of online services throughout the EU.
To move freely, social-media companies needed a consistent European regulatory structure – preferably, one where they were protected from liability in respect of any harmful content that users placed on their platforms. Without these protections, the free movement of such enterprises would not be feasible.
It is within this context that the eCommerce Directive emerged. For social-media companies, articles 12, 13 and 14 of the directive meant that member states were obliged to create rules where social-media companies, subject to some restrictions, would be immune from platform-content liability.
Though change is on the horizon, this regulatory framework still applies today.
Regulatory refocus
Two pieces of proposed legislation will now compel a European wide regulatory refocus. Both the Online Safety and Media Regulation Bill 2022 (being the Irish State’s transposition of the Audio-Visual Media Services Directive 2018) and the Digital Services Act (a European Commission proposal the final text of which is scheduled for formal adoption by the European Council in September 2022) will compel member states to create a suite of new rules that will be applied to social-media companies.
While the protections afforded by the eCommerce Directive will remain, it is the double source of these new regulations that has caused industry consternation.
In May, Ronan Costello (senior policy manager at Twitter) advised the Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht that Ireland should consider delaying the enactment of some of the provisions of the Online Safety and Media Regulation Bill if those provisions “overlap with proposals currently under development in the context of the Digital Services Act”.
Costello’s suggestion clearly denotes concern that both sets of proposals contain some similar provisions. Similar provisions, directed at the same sectors but from two different sources, may lead to uncertainty, confusion, and regulatory overlap.
Inevitable crossover
In the circumstances, it is inevitable that regulatory crossover will occur. Both sets of proposals are replete with many iterations of this. For example, article 38 of the Digital Services Act and section 6 of the Online Safety and Media Regulation Bill 2022 both require member states to create competent authorities to implement and oversee the operation of each new regulation.
Additionally, once established, article 6 of the Digital Services Act and section 139K(4) of theOnline Safety and Media Regulation Bill will oblige each new competent authority to create new rules that will oblige social-media companies to detect and assess the availability of illegal content on their platforms.
However, despite these similarities, some very significant differences exist also.
Similarities and differences
The similarities between the two provisions are heavily outweighed by the significance of their respective differences. For example, the Digital Services Act will undoubtably apply to the same social-media companies that are protected by the eCommerce Directive. Article 2(f) effectively ensures this by explicitly duplicating the same definitions for targeted services as are defined in the eCommerce Directive.
However, the Online Safety and Media Regulation Bill is less certain when it comes to targeting social-media companies.
Sections 139K(1) and 139K(3) permit member states to create new rules for social-media companies only if their platforms are (a) used to post harmful content (content that is a risk to a person), or (b) the service provided by the social-media company is essentially an online television-like service.
A member state must be satisfied that at least one of these thresholds is reached before designating a social-media company as a service to which the new rules apply. If a service does not reach this threshold, then the new rules may not apply.
Meanwhile, article 47 of theDigital Services Act will require the creation of a supranational European Board for Digital Services Coordinators. This board will consist of the digital services coordinators from each member state and will serve to advise the European Commission on matters relating to the Digital Services Act.
This concept is not reciprocated within the Online Safety and Media Regulation Bill 2022.
Additionally, for the Digital Services Act, size is a factor – articles 26 and 27 will require social-media companies with over 45 million monthly users to determine if their services are used to disseminate illegal content. If so, steps are to be taken to prevent or restrict this. Again, the Online Safety and Media Regulation Bill 2022 makes no such reciprocal size distinction.
Legitimate observation
Arriving so close together and targeting the same sectors, both provisions will justifiably attract accusations of duplication. Therefore, Mr Costello makes a legitimate observation.
For the practitioner, however, it is best to view both the Online Safety and Media Regulation Bill 2022 and the Digital Services Act collectively. They represent a limited first step towards online safety regulation.
Combined, they enter a space where, for two decades, the only regulation of significance served to protect, not users, but social-media companies. In that context, new rules, even if duplicated, would seem to be better than no rules at all.
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