Why the BAI is not the body to regulate the internet

The Sunday Independent had an eyecatching report this weekend.

Headlined “First social media controls revealed: Irish watchdog to police content across EU” it sets out the Broadcasting Authority of Ireland’s proposals to Government as to how the the AV Services Directive should be transposed into Irish law. If it stopped at those sensible and straightforward proposals, there would be nothing objectionable in the sensible idea of the BAI becoming the local implementing body of EU requirements for common age classification on Netflix, or an increase in EU produced material to protect Europe’s cultural identity.

But, in response to a specific set of queries from the Minister the BAI went further than the implementation of the EU law. They suggested that their role be hugely expanded to become a general regulator of all content (in any form, rather than just video) on the internet. And not just public content. They suggest that they, acting in a new role as an Online Service Regulator (OSR), should have the power to block or censor private communications between individuals.

“The OSR should be able to issue HOC Notices to both “open” online services (e.g. social media platforms) and “encrypted” online services (e.g. private messaging services).”

Taken simply on its own, this demonstrates why making a Broadcasting Regulator a regulator of individuals’ private communications is a bad idea. Institutionally, the instincts of regulating Broadcast (with all its panoply of editorial controls, licencing arrangements etc) should not be applied to private messages between citizens. After that comes the question of how the BAI would propose to access encrypted private messages- and whether it has made that suggestion unaware of its impracticality.

In addition, the BAI outlines its approach to how it would go about implementing EU Law:

Extract from BAI Proposal

To that extent, the key question in determining whether essential functionality applies from a constructive perspective is not to ask if the Directive applies, but rather should the Directive apply such services having regard to the need for protections to be put in place for audiences and the European Institutions’ intentions.

 

This commitment to implementing what the law should say over what it says is, to my knowledge, a novel approach to implementing EU Law.

The proposal also addresses one of the more difficult issues in regulating completely unalike media- Broadcast and Internet.

It does this by simply asserting they can both be treated the same. Problem. Solved.

The BAI welcomes the greater degree of regulatory consistency between on-demand and linear broadcasting services which is reflective of changing consumption patterns amongst audiences… As a general regulatory principle, the BAI takes the view that it is desirable for “like” services to be obliged to follow “like” rules. Given the significant convergence of the market for audiovisual media over the past decade, the BAI endorses the more level playing field envisioned by the Directive between television broadcasting services and on-demand services….

To the extent that an area of regulation is harmonised by the Directive, however, the BAI feels that it is entirely appropriate that television broadcasting services and on-demand services should be obliged to follow similar rules ensuring similar standards of protection for audiences. Taking measures to ensure greater equivalency in these areas is both a legal obligation and desirable from an audience perspective.

The BAI is a creature of the Broadcasting Act 2009. I have written previously about the inappropriateness of that Act to a modern society in the past.

Section 39 (1) (d) of that act says;

Every broadcaster shall ensure that “anything which may reasonably be regarded as causing harm or offence, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State, is not broadcast by the broadcaster,”

This section puts causing offence to be just as serious a breach as undermining the authority of the State. But no society can ever improve itself, can ever acknowledge what is wrong and address how to make things better, if we can only say things that cause nobody any offence.

By outlawing the giving of offence Section 39(1)(d) is a ban on open discussion on our airwaves, making the broadcasting complaints process a happy hunting ground for people who don’t want to be disturbed in their cosy beliefs.

If the BAI thinks that this is the appropriate standard to apply to online discussion- and they do say that they would seek to censor things which were not illegal- then that, by itself is a demonstration that it has all the wrong impulses to be left responsible for the most important communications and social medium in human history.

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