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Insertion of sections 139ZLA and 139ZLB in Principal Act
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21. The Principal Act is amended by the insertion of the following sections after section 139ZL:
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“Enforcement of investigatory powers by daily payment penalty
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139ZLA. (1) A penalty of a daily payment (in this section referred to as a ‘daily payment penalty’) may be imposed on a person in accordance with this section for the purpose of enforcing an obligation imposed on that person by an authorised officer in the exercise, in a Digital Services investigation, of any power conferred on the authorised officer by section 139ZK.
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(2) Where it appears to an authorised officer to be necessary to impose a daily payment penalty on a person, the authorised officer may give the person a notice in writing which—
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(a) specifies the obligation referred to in subsection (1) in respect of which the notice is given,
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(b) gives the person all relevant information relating to the obligation,
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(c) states the date by which the person must comply with the obligation,
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(d) states that, if the person fails to comply with the obligation by that date, the authorised officer intends to refer the matter to the Commission for a decision whether to impose a daily payment penalty on the person, for each day during which the failure continues, beginning with the day following that date,
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(e) states why it appears to the authorised officer to be necessary to impose the penalty,
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(f) states the maximum daily amount of the penalty that the Commission may impose, and
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(g) invites the person to make written submissions to the Commission regarding the matters to which the notice relates within the period specified in the notice or such further period as the Commission may allow.
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(3) The date specified under subsection (2)(c) may not be earlier than the date on which the notice under subsection (2) is given.
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(4) The amount of a penalty imposed under this section on a person for each day, during which the failure referred to in subsection (2)(d) continues, shall not exceed 5 per cent of the person’s average daily income or turnover in the preceding financial year.
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(5) Where it appears to an authorised officer that the person to whom a notice under subsection (2) has been given has failed to comply with the obligation specified in the notice by the date specified under subsection (2)(c), the authorised officer may refer the matter to the Commission.
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(6) Where a matter is referred to the Commission under subsection (5) and it appears to the Commission, after considering any written submissions made by the person to whom the notice under subsection (2) was given within the period specified in accordance with subsection (2)(g), that it is necessary to impose a daily payment penalty on the person for the purpose of enforcing the obligation specified in the notice, the Commission may—
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(a) determine the daily amount of the penalty to be imposed, and the date on which it is to commence, and
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(b) by notice in writing to the person, impose the penalty.
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(7) The functions of the Commission under this section (except this subsection) shall be exercised by a division of the Commission consisting of such uneven number of Commissioners, not being less than 3, as the Commission may determine.
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(8) If the person who gave the direction under section 139ZI for the investigation referred to in subsection (1) to be carried out is a Commissioner, the division exercising functions under this section shall not include that Commissioner.
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(9) A decision of the Commission to impose a daily payment penalty does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY, as those sections apply in accordance with section 139ZZAA.
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Power to require intermediary service provider to take interim measures
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139ZLB. (1) Where in the course of a Digital Services investigation it appears to the Commission from information provided by an authorised officer—
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(a) that there is prima facie evidence—
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(i) that the inquiry subject has committed a contravention which is an infringement of the Digital Services Regulation, and
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(ii) that the contravention is continuing,
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(b) that the suspected contravention gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention could be made under section 139ZS, and
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(c) that measures could be taken by the inquiry subject that would avoid or reduce that risk,
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the Commission may, by notice in writing to the inquiry subject, require the inquiry subject to take those measures by a date stated in the notice.
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(2) A notice under subsection (1) shall—
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(a) state the suspected contravention,
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(b) state the grounds on which it appears to the Commission that there is prima facie evidence that the suspected contravention has occurred and is continuing, and
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(c) state the grounds on which it appears to the Commission that the suspected contravention gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention could be made under section 139ZS.
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(3) A notice under subsection (1) ceases to have effect on the earliest of the following to occur:
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(a) the taking of a decision under section 139ZS in relation to the suspected contravention;
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(b) the discontinuance of the investigation referred to in subsection (1);
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(c) the revocation of the notice by the Commission.
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(4) The functions of the Commission under this section (except this subsection) shall be exercised by a division of the Commission consisting of such uneven number of Commissioners, not being less than 3, as the Commission may determine.
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(5) If the person who gave the direction under section 139ZI for the investigation referred to in subsection (1) to be carried out is a Commissioner, the division exercising functions under this section shall not include that Commissioner.
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(6) A person who, without reasonable excuse, fails to comply with a notice under subsection (1) shall be guilty of a category 1 offence.
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(7) Where an offence has been committed under subsection (6) by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either a director, manager, secretary or other officer of the body corporate, or a person purporting to act in such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the offence committed by the body corporate.
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(8) Where the affairs of a body corporate are managed by its members, subsection (7) applies in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
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(9) Any proceedings, including summary proceedings, under subsection (7) shall not be instituted except by or with the consent of the Director of Public Prosecutions.
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(10) Without prejudice to subsection (6), a person who fails to comply with a notice under subsection (1) may be liable to an administrative financial sanction in accordance with this Part.”.
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