Following the consultation, the Coimisiún na Meán (CnaM) has today, 14 August 2023, published notice of the designation of video-sharing platform services (VSPSs) as a category of relevant online services the providers of which are under the jurisdiction of Ireland. This designation becomes effective on 11 September 2023.

Continue Reading Coimisiún na Meán publishes notice of the designation of video-sharing platform services under the OSMR

On 19 July 2023, the Irish Government announced their intention to appoint John Evans as the Digital Services Commissioner in Coimisiún na Meán (CnaM). His appointment will take effect from 24 July 2023.

As per Head 6 of the General Scheme of the Digital Services Bill which was published by the Irish government earlier this year, it is intended that Mr Evans will be responsible for coordinating the supervision and enforcement of the Digital Services Act (DSA) in Ireland as the Digital Services Commissioner. He will also be responsible for liaising and cooperating with the European Commission and Digital Services Coordinators of other Member States, to allow for the effective and consistent supervision and enforcement of the DSA throughout the EU.

The DSA is a landmark set of rules that will regulate the way digital platforms deal with harmful and illegal content. The DSA will begin to apply to designated very large online platforms (VLOPs) and very large online search engines (VLOSEs) from the end of August 2023, with the DSA becoming fully applicable to all other in-scope online intermediary services from February 2024.

Mr Evans will join the Executive Chair and the three other Commissioners who were appointed to CnaM upon its establishment earlier this year:

  • Jeremy Godfrey as Executive Chairperson – with responsibility for coordinating the functions of CnaM;
  • Niamh Hodnett as Online Safety Commissioner – with responsibility for overseeing the regulatory framework for online safety under the Online Safety and Media Regulation Act 2022;
  • Rónán Ó Domhnaill as Media Development Commissioner – with overall responsibility for the funding and development of the wider media sector and for the implementation of a number of the key recommendations of the Report of the Future of Media Commission; and
  • Celene Craig as Broadcasting Commissioner – with responsibility for overseeing current functions of the Broadcasting Authority of Ireland. 

CnaM has also recently launched a recruitment campaign for 120 senior staff members to assist with its regulatory functions, such as enhancing online safety, the supervision and enforcement of the DSA and regulation of the media sector.

For more information on this topic, please contact Andrea Lawler (Partner), Caitríona Lavelle (Solicitor), Sean Dwyer (Solicitor) or any member of A&L Goodbody’s Commercial & Technology team.

On 28 June 2023, Coimisiún na Meán (CnaM) launched a consultation on the designation of video-sharing platform services (VSPSs) under the Online Safety and Media Regulation Act 2022 (the OSMR), amending the Broadcasting Act 2009. The OSMR transposes the revised Audio-Visual Media Services Directive into Irish law, which requires Member States to ensure that VSPSs take appropriate measures to protect young people from harmful content and protect the general public from illegal content. It also requires Member States to ensure that VSPSs comply with advertising standards.

A VSPS is a service where:

  • the principal purpose of the service;
  • the principal purpose of a dissociable section of the service; or
  • an essential functionality of the service

is devoted to providing audio-visual programmes or user-generated videos or both, by electronic communications networks, to the general public, in order to inform, entertain or educate. Further, in order to qualify as a VSPS, the service provider must not have editorial control over the selection of programmes and videos on the service.

Under Section 139G of the Broadcasting Act 2009 as amended, CnaM must designate VSPSs as a category of relevant online services. This is a necessary first step in ensuring that VSPSs comply with online safety codes which will be developed and enforced by CnaM.

In this consultation, CnaM is inviting submissions on the following:

  1. CnaM’s proposal to discharge its obligation to designate VSPSs as a category of relevant online services, the providers of which are under the jurisdiction of the State; and
  2. The draft notice of VSPS category designation, contained at Appendix 2 of the CnaM consultation document.

CnaM invites submissions from:

  • Interested members of the public
  • Technology Ireland, the representative group of VSPSs
  • The VSPSs established in Ireland
  • Any other interested parties

Any submissions made will be taken account of in the decision regarding the category designation of VSPSs. Note that this consultation relates to the designation of VSPSs as a category of relevant online services, not the designation of individual VSPSs.

All responses to the consultation must be submitted to CnaM by 12 noon on 26 July 2023. Submissions must be made in writing via email or by post to VSPSdesignation@cnam.ie or Caroline Keville, VSPS Category Designation, Coimisiún na Meán, 2-5 Warrington Place, Dublin 2.

If you would like further information on this topic, please contact A&L Goodbody’s Commercial & Technology team.

Also contributed to by Gavin Dowd.

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Introduction

Following its establishment earlier this year, Coimisiún na Meán (the CNM) released its first work programme on 20 June 2023. This work programme (the 2023 Programme) sets out the primary objectives of the CNM for 2023 up to February 2024.

The objectives in the 2023 Programme include the following:

  • Implementing new regulatory regimes for how online service providers deal with harmful and illegal content;
  • Regulating broadcasting and on-demand services;
  • Supporting the development of the wider media sector with funding schemes, together with initiatives to promote the Irish language, media literacy, as well as equality, diversity and inclusion in the media sector; and
  • Building the CNM’s organisation.

The CNM has elaborated on how it will pursue these in the following ways.

Online Safety

The CNM’s aim for this area, specifically, is to reduce the risk of harmful and illegal online content. To achieve this, the CNM will focus on two areas: i) adopting online safety codes and ii) assisting with enforcing the EU’s Digital Services Act (the DSA).

Regarding the online safety codes, the CNM envisages that these will be legally binding sets of rules for video sharing platforms. These will set out the measures platforms must take to comply and will encompass areas such as the protection of minors from harmful online content, prevention of criminal offences, and the occurrence of hate speech against minority groups. The codes will be distinct from the DSA and will carry fines of up to 10% of global turnover. The CNM will issue a call for inputs on these codes in the second quarter of 2023.  They will also designate the video sharing platforms that fall under the codes at the same time. These designations will be made according to the EU’s Audiovisual Media Services Directive.

For the DSA, the CNM plans to place greater emphasis on this legislation at an Irish level. The CNM will be Ireland’s “digital services coordinator” under the DSA. The CNM will expect platforms to follow the rules in the DSA such as the prohibition on manipulative user interfaces, and the requirements for greater protection of children. The CNM will engage with Irish stakeholders regarding DSA procedure and policies in the third quarter of 2023.

The EU Commission will still hold primary responsibility for enforcing the DSA for very large online platforms (VLOPs). The CNM may still have some room to enforce the DSA against those VLOPs based in Ireland (provided there is no EU investigation already open). The CNM itself notes this role in the 2023 Programme due to the large number of VLOPs with European headquarters in Ireland.

Broadcasting and Video On-Demand

The CNM will establish a scheme for determining broadcasting and video-on-demand (VOD) complaints while also implementing new media service codes. The CNM will also publish a register of VOD services established in Ireland. A 5 year review of funding for public broadcasting will also take place. Finally, the 2023 Programme also mentions that the CNM will examine the potential for a new national radio station.

Media Development

The CNM will focus on various funding schemes to support Irish media, including journalism, archiving, and broadcasters. The CNM will also continue funding schemes previously operated by the BAI.

A new Gender, Equality, Inclusion and Diversity strategy will be published by the year end which will outline the standards to be adopted in media. Finally, the CNM will begin a review of the provision of Irish language services for this year.

Building the Organisation

The CNM wishes to grow its staff numbers considerably. Currently they have 50 staff members with approval to increase that to 160. The CNM hopes to also diversify its staff roles, setting up teams in the organisation with specific functions. These will include the supervision of platforms, formal investigations, broadcasting regulation, and media development, among other roles. The CNM will implement an industry levy to fund this expansion.

Conclusion

The 2023 Programme specifies targets and end dates for the various objectives. The latest of these is in the first quarter of 2024. As the CNM chairman notes in the 2023 Programme, this is an ambitious set of objectives but the organisation looks forward to pursuing these and to engaging with stakeholders in Ireland and the EU.

On 6 June 2023, the European Commission (the Commission) launched a consultation on the template for the compliance report that designated “gatekeepers” will be required to submit annually under the Digital Markets Act (DMA).

Compliance Report for Gatekeepers

A “core platform service” for the purposes of the DMA (for example, online search engines, web browsers and social networks) will qualify as a gatekeeper if it has:

  • an annual turnover of at least €7.5 billion in the EU in the past three years or a market valuation of at least €75 billion;
  • at least 45 million monthly end users and 10,000 business users in the EU; and
  • control of one or more core platform services in at least three EU Member States.

Article 11 of the DMA requires gatekeeper platforms designated by the Commission to provide the Commission with an annual report describing the measures it has implemented to ensure compliance with their obligations under DMA Articles 5-7. Articles 5-7 impose positive obligations on gatekeeper platforms such as:

  • allowing end users to easily change default settings;
  • effective interoperability; and
  • fair, reasonable and non-discriminatory general conditions of access for business users.

Gatekeepers will be required to provide their first compliance report within six months once designated by the Commission. These reports will then have to be updated annually.

Commission Consultation

The Commission notes that contributions are particularly sought from undertakings which are potential gatekeepers under the DMA, together with business users and end users (and their representative bodies) of those potential gatekeepers.

The Commission’s objective is to gather feedback on the draft template specifying the minimum information to be included in reports for the purposes of Article 11.

In particular, the Commission welcomes feedback on the following two items:

  1. Precise indicators that the Commission may use to assess whether the measures implemented by the gatekeepers to ensure compliance are effective in achieving the objectives of the DMA and the relevant obligations under Article 8 DMA (which requires gatekeepers to demonstrate compliance with their obligations); and
  2. Content and presentation of the non-confidential summary of the compliance report, which must be provided pursuant to Article 11 (2) of the DMA, in order to ensure that this allows third parties to provide “meaningful input” to the Commission on gatekeepers’ compliance.

All interested parties have until 4 July 2023 to submit their views on the draft.

The stakeholder’s feedback will allow the Commission to produce a finalised version of the template. This finalised version may be regularly updated by the Commission to request further information.

On 31 May, Minister for Justice Simon Harris signed the European Union (Online Dissemination of Terrorist Content) (Designation of the Commissioner of the Garda Síochána as a Competent Authority) Regulations 2023 (the Regulations) into law. The Regulations designate An Garda Síochána as:

  1. the Irish competent authority for issuing removal orders in accordance with Article 3 of the EU Terrorist Content Online Regulation 2021/784 (the TCO); and
  2. the Irish contact point for clarification and feedback in relation to the removal orders that it issues.

Article 3 TCO provides that a competent authority of each EU Member State has the power to issue a removal order that requires hosting service providers (HSPs) to either remove or disable access to terrorist content in all Member States (Removal Order). On receipt of a Removal Order, the HSP must act as soon as possible to comply with it, but no later than within one hour of receipt of the Removal Order. On actioning a Removal Order, the HSP is required to inform An Garda Síochána (as the relevant competent authority) that the terrorist content has been removed or that access to it has been disabled. 

When signing the Regulations, Minister Harris said that “as Ireland’s policing and security service, An Garda Síochána has the necessary expertise, international contacts and experience to carry out this function in an effective manner.“

Under Article 12(1) TCO, Member States can designate multiple competent authorities for oversight and enforcement of the TCO. An Garda Síochána is the competent authority responsible for Removal Orders under Article 3 TCO only. Therefore, the Regulations require that An Garda Síochána must also notify the authority that is competent for imposing penalties for infringements of the TCO (i.e. Coimisiún na Meán), if it believes that a HSP has infringed the TCO by:

  • not acting expeditiously to remove terrorist content within one hour of receipt of a Removal Order; or
  • failing to inform the Gardaí of the removal or disabling of the terrorist content and the details relating to such removal/disabling without due delay.

As reported in an earlier blog post, the Irish Government plans to designate Coimisiún na Meán as the competent authority for enforcement under the TCO. It was previously announced that the Irish government intends to introduce amending legislation to the Online Safety and Media Regulation Act 2022 to allow for Coimisiún na Meán’s powers to be used for the enforcement of the TCO. However, there remains no indication as of yet on when this amending legislation will be put forward before the Oireachtas.

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1 June 2023 marks a significant step forward for patent protection and enforcement in Europe with the commencement of a new unified European patent system comprising:

  1. A Unitary Patent, providing uniform protection and equal effect across all participating Member States on a one-stop-shop basis.
  1. A Unified Patent Court (UPC), offering a single, specialised patent court common to all participating Member States.

We previously reported (in 2021 and 2022) on the steps taken towards the establishment of the Unitary Patent and UPC, and the legislative hurdles that needed to be overcome for their operation to commence.

Overview of the Unitary Patent 

The Unitary Patent system entered into force on 1 June 2023. It does not replace the existing patent system in Europe, but builds on the European Patent Convention (EPC) to form a new centralised path to grant and protect European patents across the (now) 17 EU Member States that have ratified the UPC Agreement (the participating Member States). 

The Unitary Patent gives uniform protection and equal effect (unitary effect) to patents issued by the European Patents Office (EPO) in participating Member States.

Under the existing European patent system, ‘classic’ European patents granted centrally by the EPO under the EPC are validated in selected countries of interest, as a bundle of national patent rights. 

The pre-grant phase for a European patent is unchanged by the new Unitary Patent system, which is still administered by the EPO. However the post grant procedure has evolved. Now, within one month of the grant publication, an applicant can choose the form of European patent protections as being a ‘Unitary Patent’ with ‘unitary effect’. The European patent is then elevated to a Unitary Patent with uniform protection and equal effect in participating Member States. The new system is more efficient, insofar as it eliminates the need to apply for and renew a series of national validations in different EU countries. Instead, a single procedure, subject to a single renewal fee in a single currency, is all that is required for a Unitary Patent, which can then be enforced in a single, centralised, litigation system before the UPC.

Overview of the Unified Patent Court 

The UPC is a new specialised court common to participating Member States. It comprises a Court of First Instance – divided into local, regional, and central divisions – and a Court of Appeal. The CJEU will hear requests from the UPC for preliminary rulings on questions of EU law. 

The UPC has exclusive jurisdiction to hear disputes relating to Unitary Patents. During a transitional period, the UPC will share jurisdiction for disputes concerning patent infringement and validity of classic European patents that have been validated in participating Member States, and any special protection certificate (SPC) issued for a product covered by such a patent, unless those patents have been “opted-out” of the UPC’s jurisdiction.

Before 1 June 2023 classic European patents were enforced on a country-by-country basis. Proceedings were issued in parallel across multiple jurisdictions. This has sometimes led to irreconcilable judgments on validity and infringement. The UPC, as a single Court, is expected reduce the likelihood of conflicting judgments from different national courts as enforcement is effective across all participating Member States.

Proprietors of classic European patents in participating Member States may apply to opt-out of the UPC’s jurisdiction at any time during a “transitional period”. The transitional period, which commenced on 1 June 2023, will last for seven years but may be prolonged with a further seven years subject to review of the Administrative Committee. The opt-out will last for the lifetime of the European patent and any associated SPC unless it is withdrawn. If an opt-out is withdrawn, it is not possible to opt-out again. By opting-out, proprietors of classic European patents eliminate the risk of centralised revocation and the uncertainty surrounding the untested UPC. It is worth noting that Unitary Patents and classic European patents already forming part of an action before the UPC cannot be opted-out.

During the Transitional Period the UPC will share jurisdiction with the National Courts for classic European patents. A competitor or third party has discretion whether to initiate a legal action before the UPC or National Court. After the Transitional Period ends, the UPC will have exclusive jurisdiction for classic European patents.

The UPC has no jurisdiction over patents which have opted out during the transitional period, European countries that have not yet ratified the UPC Agreement, and countries that are not participating in the Unitary Patent system, i.e. non-European members of the EPC. Decisions of the UPC will have effect in participating Member States where the patent has effect.

The UPC has the power to centrally revoke a patent and grant a range of remedies, including preliminary injunctions and final injunctions, that will apply across participating Member States. 

Participating Member States

To participate in the new unified patent system, Member States must ratify the UPC Agreement. It is not sufficient to be a signatory state. Only Member States that have deposited their instrument of ratification can benefit from the new system.

To date, a total of 17 EU Member States have ratified the UPC Agreement, This includes: Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Portugal, Slovenia and Sweden.

Seven Signatory States have not yet ratified the UPC Agreement. This includes Cyprus, Czech Republic, Greece, Hungary, Romania, Slovakia and Ireland, which are expected to deposit their instrument of ratification in the coming years. Despite its harmonising objective, the territorial scope of a Unitary Patent is not automatically extended for countries that ratify the UPC Agreement at a later date. Consequently, there will be different generations of Unitary Patents.

Ireland: the Current Position

Ireland has been a signatory to the UPC Agreement since 2013, however it has not been ratified. A referendum is required because the setting up of the court would require Ireland to agree to the transfer of the forum for relevant patent litigation from the Irish Courts to the UPC. On 23 July 2014 the Irish Government approved the heads of the Amendment of the Constitution (Unified Patent Court) Bill. However, there has been no meaningful progress to date. Last month, Simon Coveney, the Minister for Enterprise, Trade and Employment, suggested the referendum would take place in late Autumn or in Spring 2024 to coincide with the local and European elections. While the latter was stated to be “more likely” lobbying groups are calling for expedited action with some suggesting the Government hold the referendum in November 2023, to coincide with the recently announced referendum on gender equality.

As the only English speaking and common law participating state within the UPC system with a Commercial Court that already plays an active role in the management of life sciences disputes, usually being simultaneously litigated in numerous European jurisdictions, Ireland was in a strong  position to host the Life Sciences section of the Central Division of the UPC. Recently, however, the Italian Foreign Office published a press release announcing an agreement with France and Germany to set up the Central Division in Milan. This agreement will be considered by the other UPC signatory states during the next meeting of the Administrative Committee in June 2023. 

We will keep readers of our blog updated with the timing of the referendum to ratify the UPC Agreement when there is greater clarity from the Irish Government on timing.

For more information on this topic, please contact John Whelan, Partner, or Sean Dwyer, Solicitor, or any member of the Patent Group in A&L Goodbody’s Commercial & Technology team.

The Commission has published a draft delegated act on audits to be performed very large online platforms (“VLOPs“) and very large online search engines (“VLOSEs“) pursuant to Article 37 of Digital Services Act Regulation (“DSA“) for public feedback.

Continue Reading Commission publishes Draft Delegated Act in respect of Audits conducted under DSA

Following the first designation of Very Large Online Platforms (“VLOPS“) and Very Large Online Search Engines (“VLOSEs”) under the Digital Services Act Regulation (“DSA“) on 25 April 2023, the European Commission has now announced a call for evidence from stakeholders to inform proposed delegated acts on data access mechanisms.

Continue Reading Commission Calls for Stakeholder Views on Data Access Mechanism under DSA

Last week, the European Commission (the Commission) adopted the first designation decisions under the Digital Services Act (DSA) which designated certain services as Very Large Online Platforms (VLOPs) and / or Very Large Online Search Engines (VLOSEs) in accordance with Article 33(4) of the DSA. 

17 VLOPs and 2 VLOSEs were designated under the decisions adopted by the Commission:

  • VLOPs: Alibaba AliExpress; Amazon Store; Apple AppStore; Booking.com; Facebook; Google Play; Google Maps; Google Shopping; Instagram; LinkedIn; Pinterest; Snapchat; TikTok; Twitter; Wikipedia; YouTube; Zalando.
  • VLOSEs: Bing; Google Search.

It has been reported that a second wave of VLOP/VLOSE designations by the Commission may follow. The Commission is currently investigating the user data of services such as Spotify, Telegram, Pornhub and AirBnB who have claimed that they have less than 45 million monthly active users (MAU) in the EU. These services may also be designated if their MAU numbers are revised.

When do VLOP/VLOSEs’ DSA obligations begin to apply?

The providers of the services that have been designated as VLOP/VLOSEs must comply with relevant obligations under the DSA from four months after the Commission’s notification of designation i.e. 25 August 2023. The obligations aim to empower and protect users online (including minors) by requiring the VLOP/VLOSEs to assess and mitigate their systemic risks and to provide robust content moderation tools. Some of the key obligations for VLOP/VLOSEs that will come into effect from 25 August 2023 include:

  • the obligations to perform risk assessments to assess the “significant systemic risks” that stem from the provision of their services. This would include risks in relation to the dissemination of illegal and other harmful content through their services. VLOP/VLOSEs will be required to put in place reasonable, proportionate and effective mitigation measures, tailored to the specific systemic risks identified in their risk assessment, with particular consideration for the impacts of such measures on fundamental rights;
  • the obligation to establish an independent compliance function that reports directly to the management body of the provider and can raise concerns and warn the management body of non-compliance risks;
  • the obligation to conduct independent audits which assess the provider’s compliance with certain obligations arising under DSA, as well as any commitments to the codes of conduct; 
  • the obligation to comply with detailed transparency reporting requirements including the requirement to make publicly available reports, setting out the main findings of the external audit and the results of the risk assessment;
  • The requirement to create, maintain and make available a publicly accessible repository of all ads that have been presented on their platform. The repository must include information on the period during which the advertisement was/is being presented to recipients of the service, and for one year after the ad’s final exposure. The repository must also contain additional information relating to ads, including the parameters used to specifically display the ad to one or more particular groups of recipients and the total number of service recipients reached (with aggregate numbers broken down by Member State, if applicable).

If you would like further information on this topic, please contact A&L Goodbody’s Commercial & Technology team.