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Access blocking order where Digital Services Regulation infringed
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38. Part 8B of the Principal Act is amended by the insertion of the following Chapter after Chapter 6:
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“CHAPTER 6A
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Access blocking order where Digital Services Regulation infringed
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Further notice to end infringement of Digital Services Regulation
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139ZZCA. (1) Where the Commission has given a notice under section 139ZZB to an intermediary service provider in respect of a contravention that is an infringement of the Digital Services Regulation, and it appears to the Commission that—
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(a) the provider has failed to comply with the notice within the period specified under section 139ZZB(2),
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(b) the contravention is continuing,
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(c) the other powers of the Commission pursuant to Article 51 to put an end to the contravention have been exhausted, and
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(d) the contravention is causing serious harm that cannot be avoided through the exercise of other powers,
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the Commission may, by notice in writing to the provider, request the management body of the provider to consider the steps required by the notice under section 139ZZB and to propose what steps the provider should now be required to take to put an end to the contravention, and within what period.
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(2) A notice under subsection (1) shall state the time within which the management body must comply with the request.
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(3) Where the management body of a provider makes a proposal in accordance with a notice under subsection (1), the Commission may give a further notice in writing to the provider directing the provider to put an end to the contravention referred to in subsection (1) and stating—
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(a) the steps which the Commission requires the provider to take to put an end to the contravention, and
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(b) the period within which those steps must be taken.
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(4) Section 139ZZB(4) to (7), and sections 139ZZBA and 139ZZBB, apply in relation to a notice under subsection (3) as they apply in relation to a notice under section 139ZZB.
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(5) The giving of a notice under subsection (3) does not affect the application of section 139ZZB(4) to (7), 139ZZBA or 139ZZBB in relation to the earlier notice under section 139ZZB.
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Access blocking order in case of infringement of Digital Services Regulation
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139ZZCB. (1) Where—
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(a) the management body of an intermediary service provider fails to make a proposal in accordance with a notice under section 139ZZCA(1),
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(b) the Commission gives an intermediary service provider a notice under subsection (3) of section 139ZZCA, and the period referred to in paragraph (b) of that subsection expires without the Commission being satisfied that the contravention has ended, or
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(c) the European Commission makes a request to the Commission pursuant to Article 82(1) in respect of the provider of a very large online platform or very large online search engine,
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the Commission may apply to the High Court for an order requiring a relevant intermediary service provider (referred to in this section as the provider of the ‘carrying service’) to block access in the State to an intermediary service (referred to in this section as the ‘subject service’) provided by the provider referred to in paragraph (a), (b) or (c).
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(2) An application under subsection (1) shall be made on notice to—
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(a) the provider of the carrying service,
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(b) the provider of the subject service, and
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(c) any other person appearing to the Commission to have a legitimate interest.
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(3) Where paragraph (a) of subsection (1) applies, the Commission shall, before making an application under that subsection, give notice in writing to the persons referred to in subsection (2)—
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(a) stating that it intends to make an application under subsection (1),
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(b) setting out the order it intends to apply for and the addressees of that order, and
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(c) stating that the persons to whom the notice is given may submit written observations to the Commission within a period specified in the notice of not less than 10 working days beginning with the day on which the notice is received.
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(4) Where the Commission gives notice under subsection (3), no application under subsection (1) may be made before the end of the period specified under subsection (3)(c).
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(5) On an application under subsection (1) the court may make an order requiring the blocking of access to the subject service if it is satisfied in relation to the relevant infringement—
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(a) that the infringement is continuing,
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(b) that the infringement entails a criminal offence involving a threat to the life or safety of persons,
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(c) where subsection (1)(a) or (b) applies, that all reasonable steps for the Commission to take to put an end to the infringement have been taken, and
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(d) that, having regard to the nature, gravity, recurrence and duration of the infringement, an order under this section is proportionate and will not unduly restrict access to lawful information by users of the subject service.
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(6) The High Court may provide in an order under this section that a requirement imposed by the order is subject to such conditions as it considers necessary.
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(7) Subject to subsection (8), an order under this section shall have effect for a period of not more than 28 days.
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(8) The High Court may provide that the Commission may with leave of the court extend the period for which an order under this section has effect for further periods of not more than 28 days, subject to the maximum number of extensions specified by the court.
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(9) The Commission may make an application, in accordance with subsection (8), for leave to extend the period for which an order under this section has effect only if, having regard to the rights and interests of all those affected by the order, it considers that—
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(a) the provider has failed to take the necessary measures to put an end to the relevant infringement, and
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(b) the extension will not unduly restrict access to lawful information by users of the subject service, having regard to the number of recipients affected and whether any adequate and readily accessible alternative exists.
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(10) Where in relation to an order under this section—
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(a) no application, or no further application, may be made in accordance with subsection (8) for leave to extend the period for which the order has effect, but
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(b) having regard to the rights and interests of all those affected by the order, the Commission considers that the conditions referred to in subsection (9)(a) and (b) are satisfied,
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the Commission may make a further application under subsection (1).
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(11) The provider of the carrying service or the subject service may apply to the High Court to vary or discharge an order under this section in the event that there is any material change in the circumstances which gave rise to the order.
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(12) In this section, references to the provider of the carrying service blocking access to the subject service, where the carrying service is an application store service, include references to the provider of the carrying service blocking the downloading of software used to provide the subject service or to access the subject service.
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(13) In this section—
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‘application store service’ means a service the main purpose of which is to facilitate the download of, or access to, application software at endpoints of the internet;
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‘relevant infringement’ means—
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(a) where subsection (1)(a) or (b) applies, the contravention referred to in section 139ZZCA(1), and
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(b) where subsection (1)(c) applies, the infringement to which the request by the European Commission relates.”.
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