Online Safety and Media Regulation Act 2022
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PART 12 Investigations and sanctions | ||
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Investigations and sanctions | ||
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47. The Principal Act is amended by the insertion of the following Part before Part 9: | ||
“PART 8B | ||
Investigations and sanctions | ||
Chapter 1 | ||
Interpretation | ||
Interpretation | ||
139ZG. In this Part— | ||
(a)‘contravention’ means a failure to comply with section 46J, 46K, 46L, 46M(2) or (3), a media service code, a media service rule, section 46P(1) or (2), section 106(3), section 127(6), section 128B(1) or (2), any rules made under section 128C, an online safety code, section 159B(1) (or any rules made under section 159B(6)) or section 159C(1) (or any rules made under section 159C(3) or (6)); | ||
(b)‘investigation’ means an investigation pursuant to a direction under section 139ZI(1); | ||
(c) in relation to an investigation— | ||
‘the authorised officer’ means the authorised officer carrying out the investigation; | ||
‘the provider’ means the person whose suspected contravention is the subject of the investigation; | ||
‘relevant equipment’ means any electronic, photographic, magnetic, optical or other equipment, including a computer, which may be used for processing or holding relevant material; | ||
‘relevant material’ means any document, information, or content, however communicated, recorded or stored, which may be relevant to the investigation; | ||
(d)‘place’ includes— | ||
(i) a dwelling; | ||
(ii) a building; | ||
(iii) any other premises; | ||
(iv) a vehicle, vessel, aircraft, or other means of transport. | ||
Chapter 2 | ||
Authorised officers and investigations | ||
Appointment of authorised officers | ||
139ZH. (1) The Commission may appoint a person to be an authorised officer for the purposes of this Act. | ||
(2) The Commission shall provide an authorised officer appointed under subsection (1) with a certificate of his or her appointment. | ||
(3) An authorised officer exercising a power conferred by or under this Act shall, if requested by a person affected by the exercise of the power, produce for that person to inspect— | ||
(a) the certificate of his or her appointment, or a copy of it, and | ||
(b) a form of personal identification. | ||
(4) An authorised officer shall be appointed subject to such terms and conditions (including terms as to remuneration and allowances for expenses (if any)) as the Commission may, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform, determine. | ||
(5) A person’s appointment under subsection (1) ceases— | ||
(a) if it is revoked in writing by the Commission, | ||
(b) if it is for a fixed period and the period expires, or | ||
(c) if the person was when appointed, or has since become, a member of the staff of the Commission, and the person ceases to be a member of its staff. | ||
Commencement and terms of investigation | ||
139ZI. (1) If a person authorised by the Commission under subsection (2) believes there is reason to suspect that there has been a contravention, the person may direct an authorised officer to carry out an investigation of the suspected contravention. | ||
(2) The Commission may authorise any Commissioner or member of its staff for the purposes of subsection (1). | ||
(3) The person who directs the authorised officer to carry out an investigation under subsection (1) shall define the terms of the investigation in writing. | ||
Notice of commencement of investigation | ||
139ZJ. (1) An authorised officer directed to carry out an investigation under section 139ZI(1) shall give the provider a notice in writing of the commencement of the investigation. | ||
(2) The notice shall include— | ||
(a) a statement of the nature and particulars of the suspected contravention, | ||
(b) a copy of the terms of the investigation defined under section 139ZI(3), and | ||
(c) a copy of any material relied upon by the person referred to in section 139ZI(3) in defining those terms or notice of the place at which such material may be inspected and copied by the provider. | ||
(3) A notice under subsection (1) shall state that the provider may respond in writing to the contents of the notice within— | ||
(a) the period of 10 working days from the date on which the notice was received, or | ||
(b) any further period, of not more than 10 working days, that the authorised officer considers necessary to give the provider an opportunity to respond. | ||
Powers of authorised officer | ||
139ZK. (1) For the purposes of an investigation, an authorised officer may do any of the following: | ||
(a) subject to subsection (7), at any reasonable time, enter any place where the authorised officer has reasonable grounds for believing— | ||
(i) that an activity connected with a broadcasting service, audiovisual on-demand media service or designated online service takes place, or | ||
(ii) that relevant material or relevant equipment is kept; | ||
(b) search a place referred to in paragraph (a); | ||
(c) stop any vehicle, or detain any vessel, aircraft or other means of transport, for the purpose of exercising a power under paragraph (a) or (b) to enter, search or inspect the vehicle, vessel, aircraft or other means of transport; | ||
(d) require any person to produce to him or her any relevant material which is in that person’s power or control or which that person is able to procure, and to produce it, where necessary, in a form in which it can be taken away and in which it is, or can be made, legible and comprehensible; | ||
(e) require a person who is unable to produce relevant material within that person’s power, procurement or control to state, to the best of that person’s knowledge and belief, where the material is or from whom it may be obtained; | ||
(f) require any person to give the authorised officer such information as the officer may reasonably require relating to any relevant material which is in that person’s power or control or which that person is able to procure; | ||
(g) require any person to give the authorised officer any information that the officer may reasonably require relating to a broadcasting service, an audiovisual on-demand media service, or a designated online service; | ||
(h) require any person to attend before the authorised officer to give any information that the officer may require the person to give under this section; | ||
(i) operate any relevant equipment, or cause it to be operated by a person accompanying the authorised officer, for the purpose of accessing relevant material; | ||
(j) require any person to give the authorised officer all reasonable assistance in the operation of relevant equipment for the purpose of accessing relevant material, including— | ||
(i) making the material legible and comprehensible or providing any authentication necessary to do so, or | ||
(ii) enabling the material to be taken away in any form; | ||
(k) secure for later inspection, for such period as the authorised officer reasonably considers necessary, any place where the authorised officer has reasonable grounds for believing there is relevant material or relevant equipment; | ||
(l) inspect and take extracts from or copies of any relevant material; | ||
(m) remove from any place, and retain, any relevant material or relevant equipment, for such period as the authorised officer reasonably considers necessary; | ||
(n) require any person who has any relevant material or relevant equipment in his or her power or control to retain the material or maintain the equipment for such period as the authorised officer reasonably considers necessary. | ||
(2) An authorised officer may specify that a requirement under paragraph (d), (e), (f), (g), (h) or (j) be complied with within such reasonable period as he or she may determine. | ||
(3) An authorised officer may conduct an oral hearing if he or she considers it necessary for the purposes of the investigation. | ||
(4) Schedule 4, and any rules made by the Commission under section 139ZN, shall have effect for the purposes of an oral hearing referred to in subsection (3). | ||
(5) When performing a function under this Act, an authorised officer may, subject to the terms of any warrant issued under section 139ZL, be accompanied by such and so many other persons, including members of the Garda Síochána, as he or she considers appropriate. | ||
(6) An authorised officer may require a person to provide his or her name and address if the authorised officer has reasonable grounds for requiring the information in order to apply for a warrant under section 139ZL. | ||
(7) An authorised officer shall not enter a dwelling, other than— | ||
(a) with the consent of the occupier, or | ||
(b) in accordance with a warrant under section 139ZL. | ||
(8) A person shall be guilty of a category 2 offence if he or she— | ||
(a) without reasonable excuse, obstructs an authorised officer in the exercise of his or her powers under this section, | ||
(b) without reasonable excuse, fails or refuses to comply with a requirement of an authorised officer under this section, | ||
(c) with the intention of obstructing an authorised officer in the conduct of an investigation, alters, hides, or destroys, any relevant material or relevant equipment which is, or which could reasonably be, the subject of a requirement of an authorised officer under this section, | ||
(d) in purported compliance with a requirement under this section, gives to an authorised officer information which the person knows to be false or misleading in any material respect, or | ||
(e) falsely represents himself or herself to be an authorised officer. | ||
(9) Where an authorised officer has exercised his or her powers under this section in good faith, the Commission shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the exercise of those powers. | ||
(10) A statement or admission made by a person pursuant to a requirement of an authorised officer under subsection (1) shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under subsection (8), and this shall be explained to the person in ordinary language by the authorised officer. | ||
(11) A person the subject of a requirement under subsection (1) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court. | ||
Search warrant | ||
139ZL. (1) If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that relevant material required by an authorised officer for the purpose of performing his or her functions under this Act is held at any place, the judge may issue a warrant authorising an authorised officer, on production, if so required, of the warrant, to enter the place, if necessary by reasonable force, and to exercise all or any of the powers conferred on an authorised officer by section 139ZK. | ||
(2) A warrant under subsection (1) may permit an authorised officer to be accompanied by such and so many other persons, including members of the Garda Síochána, as the officer considers necessary. | ||
(3) A warrant issued under this section shall be valid for 28 days from its date of issue. | ||
Report of authorised officer | ||
139ZM. (1) As soon as is practicable after the completion of an investigation, the authorised officer shall prepare a draft report of the investigation. | ||
(2) In preparing the draft report referred to in subsection (1), the authorised officer shall consider, in so far as they are relevant to the investigation— | ||
(a) the terms of the investigation, | ||
(b) the notice under section 139ZJ(1), and any response made by the provider to that notice under section 139ZJ(3), | ||
(c) any relevant material or relevant equipment obtained in the course of the investigation in the exercise of powers under section 139ZK, | ||
(d) any statement or admission made by any person in the course of the investigation pursuant to a requirement, or during an oral hearing, under section 139ZK, and | ||
(e) any submissions made by any person during an oral hearing under section 139ZK. | ||
(3) The authorised officer shall, as soon as is practicable after preparing the draft report, give the provider— | ||
(a) a copy of the draft report, | ||
(b) a copy of any material relied upon by the authorised officer in preparing the draft report, | ||
(c) a copy of this section, and | ||
(d) a notice in writing stating that the provider may, not later than 28 days from the date on which it receives the notice, or such further period as the authorised officer considers necessary, make submissions in writing to the authorised officer on the draft report. | ||
(4) The authorised officer shall, as soon as is practicable after the expiration of the period referred to in subsection (3)(d), and having considered any submissions made under that subsection, make any revisions to the draft report which, in the opinion of the authorised officer are warranted, and finalise the report. | ||
(5) An authorised officer shall not make any recommendation, or express any opinion, in a draft report under subsection (1) or in a final report under subsection (4), as to whether an administrative financial sanction should be imposed under section 139ZS in the event that the Commission is satisfied that the provider has committed a contravention, or as to the amount of any such sanction imposed. | ||
(6) An authorised officer shall, as soon as is practicable after the draft report has been finalised under subsection (4), provide a copy of the final report to the provider. | ||
(7) An authorised officer shall, as soon as is practicable after the draft report has been finalised under subsection (4), provide a copy of the final report and any submissions made under subsection (3)(d), to the Commission. | ||
(8) An authorised officer may provide a copy of the final report, and any such submissions to such other persons as he or she considers appropriate. | ||
(9) A person who receives a final report or any submissions under subsection (8) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the report or of the submissions to any other person. | ||
(10) A person who without reasonable excuse contravenes subsection (9) shall be guilty of a category 1 offence. | ||
Rules | ||
139ZN. (1) Subject to the provisions of this Part and Schedule 4, the Commission may make rules providing for the conduct of investigations under this Chapter, and the conduct of its proceedings under Chapters 3 and 4. | ||
(2) In making rules under subsection (1), the Commission shall have regard to the need for fairness and efficiency in the conduct of such investigations and proceedings, in particular the need to address conflicts of interest which may arise in investigations or proceedings. | ||
(3) The Commission shall publish rules made under subsection (1) on a website maintained by it. | ||
Guidelines | ||
139ZO. (1) The Commission may make guidelines with respect to the operation of this Chapter, Chapters 3 and 4, Schedule 4 and any rules made under section 139ZN. | ||
(2) The Commission shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on a website maintained by it. | ||
Conduct of investigations | ||
139ZP. (1) Subject to the provisions of this Part and Schedule 4, any rules made under section 139ZN and any guidelines made under section 139ZO, an authorised officer may follow such procedures for the conduct of an investigation as he or she considers appropriate. | ||
(2) An authorised officer shall, in the conduct of an investigation, take reasonable steps to keep the provider informed as to the progress of the investigation. | ||
Chapter 3 | ||
Decision of Commission | ||
Division of Commission | ||
139ZQ. (1) The functions of the Commission under this Chapter (except this subsection), Chapter 4 (except sections 139ZY, 139ZZ and 139ZZA), and Schedule 4 shall, unless otherwise stated, 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. | ||
(2) If the person who directed an investigation be carried out under section 139ZI is a Commissioner, the division exercising functions in relation to the investigation shall not include that Commissioner. | ||
Action by Commission after receiving report | ||
139ZR. (1) After the authorised officer has complied with subsections (6) and (7) of section 139ZM the Commission shall, subject to subsection (2), give the provider— | ||
(a) a copy of this section, and | ||
(b) a notice in writing stating that the provider may make submissions in writing to the Commission on the final report within the period of 28 days from the date the provider receives the notice, or such further period as the Commission may allow. | ||
(2) The Commission need not comply with subsection (1) if it holds an oral hearing under subsection (3) at which the provider may make submissions to it on the final report. | ||
(3) The Commission shall at any time after the authorised officer has complied with subsections (6) and (7) of section 139ZM conduct an oral hearing if it considers it necessary to do so in order for the procedures under this Part to operate fairly. | ||
(4) The Commission may, at any time after the authorised officer has complied with subsections (6) and (7) of section 139ZM, do any of the following that it considers necessary to resolve an issue of fact or otherwise enable it to make a decision under section 139ZS: | ||
(a) request the provider to provide the Commission with further information within such period as the Commission specifies; | ||
(b) request any other person to provide the Commission with further information within such period as the Commission specifies; | ||
(c) for the purposes of a request under paragraph (b), provide a copy of the final report, or of part of the final report, with any redactions the Commission considers necessary, to the person the request is made to; | ||
(d) conduct an oral hearing. | ||
(5) As soon as practicable after making a request under subsection (4)(b), the Commission shall give the provider a copy of the request. | ||
(6) As soon as practicable after receiving any information pursuant to a request under subsection (4)(b), the Commission shall give the provider— | ||
(a) a copy of the information, and | ||
(b) a notice in writing stating that the provider may make submissions in writing to the Commission on the information within the period of 20 working days from the date the provider receives the notice, or such further period as the Commission may allow. | ||
(7) A person who receives a copy of a report, or of part of a report, under subsection (4)(c) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the report to any other person. | ||
(8) A person who without reasonable excuse— | ||
(a) fails to comply with a request for further information under subsection (4)(a) or (b), or | ||
(b) contravenes subsection (7), | ||
shall be guilty of a category 2 offence. | ||
(9) A person who, in purported compliance with a request for further information under subsection (4)(a) or (b), gives to the Commission information which the person knows to be false or misleading in any material respect shall be guilty of a category 2 offence. | ||
(10) A statement or admission made by a person pursuant to a request for further information under subsection (4)(a) or (b), shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under subsection (9), and this shall be explained to the person in ordinary language by the Commission. | ||
Decision by Commission | ||
139ZS. (1) The Commission shall decide, in respect of a provider who is the subject of a report under section 139ZM— | ||
(a) whether or not it is satisfied on the balance of probabilities that the provider has committed the contravention to which the investigation relates, and | ||
(b) if so, whether or not to impose an administrative financial sanction. | ||
(2) A decision under subsection (1) that a contravention has been committed, or that an administrative financial sanction shall be imposed, does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY. | ||
(3) For the purposes of making a decision under subsection (1), the Commission shall consider— | ||
(a) the final report provided under section 139ZM(7) and any submissions provided with the report, | ||
(b) any evidence adduced or submissions made during an oral hearing conducted under section 139ZR, | ||
(c) any information provided as a result of a request under section 139ZR(4), and | ||
(d) any submissions made pursuant to a notice under subsection (1) or (6) of section 139ZR. | ||
(4) In deciding under subsection (1)(b) whether or not to impose an administrative financial sanction on a provider, the Commission shall have regard to the matters referred to in paragraphs (a), (b), (c), (d), (e), (g), (h), (i), (j) and (k) of section 139ZW(3). | ||
Notice and publication of decision of Commission | ||
139ZT. (1) The Commission shall, as soon as is practicable after making a decision under section 139ZS give notice in writing of the decision to the provider the subject of the decision. | ||
(2) The notice under subsection (1) shall set out the decision made and the reasons for it. | ||
(3) If the Commission decides that a contravention has occurred, the notice shall also— | ||
(a) state that the decision does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY, and | ||
(b) state that, if the provider does not appeal under section 139ZX, the Commission will, as soon as is practicable after the expiration of the period for the making of an appeal referred to in section 139ZX(1), make an application in a summary manner for confirmation of the decision under section 139ZY. | ||
(4) If the Commission decides to impose an administrative financial sanction, the notice shall also— | ||
(a) state that the provider may make submissions in relation to the application of section 139ZW to the determination of the amount of the sanction, | ||
(b) state either that— | ||
(i) those submissions may be made at an oral hearing, under section 139ZU(2)(a), on a date specified in the notice, or | ||
(ii) that those submissions may be made in writing, under section 139ZU(2)(b), within a period specified in the notice in accordance with that section, | ||
and | ||
(c) state that the Commission may request further information under section 139ZU(3). | ||
(5) The Commission shall publish the decision made under section 139ZS on a website maintained by it and that publication shall include the following matters: | ||
(a) the name of the provider; | ||
(b) the nature of the suspected contravention to which the investigation related; | ||
(c) the reasons for the decision; | ||
(d) such other particulars, reports or material as the Commission considers appropriate. | ||
(6) The Commission may provide a copy of a notice referred to in subsection (1) to a person other than the provider where it considers it appropriate to do so. | ||
(7) A person who receives a copy of a notice under subsection (6) prior to the publication of the decision under subsection (5) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the notice, including any content redacted in accordance with subsection (9) from a notice published under subsection (5), to any other person. | ||
(8) A person who without reasonable excuse contravenes subsection (7) shall be guilty of a category 2 offence. | ||
(9) The Commission may, for the purposes of publication under subsection (5), redact any particulars which appear to the Commission— | ||
(a) to be commercially sensitive, or | ||
(b) to relate to the commission of an offence. | ||
Chapter 4 | ||
Administrative financial sanctions | ||
Submissions and requests for information | ||
139ZU. (1) Subsections (2) and (3) apply where the Commission has made a decision under section 139ZS to impose an administrative financial sanction on a provider. | ||
(2) The provider may make submissions to the Commission in relation to the application of section 139ZW to the determination of the amount of the sanction— | ||
(a) at an oral hearing, where the Commission considers it necessary, or | ||
(b) otherwise, in writing, within the period of 10 working days from the date the provider receives the notice under section 139ZT, or such longer period as the Commission may specify in the notice. | ||
(3) Where the provider makes submissions to the Commission under subsection (2)(b), the Commission may by notice in writing request the provider to provide, within a specified period, such further information as the Commission considers appropriate for the purposes of determining the amount of the sanction. | ||
(4) A person who without reasonable excuse fails to comply with a request under subsection (3) shall be guilty of a category 2 offence. | ||
Determination of amount of administrative financial sanction | ||
139ZV. (1) Where a decision has been made under section 139ZS to impose an administrative financial sanction, the Commission shall determine the amount of the sanction in accordance with section 139ZW. | ||
(2) The Commission shall make the determination as soon as practicable after— | ||
(a) where section 139ZU(2)(a) applies, the date of the oral hearing referred to in that paragraph, or | ||
(b) where section 139ZU(2)(b) applies, the expiry of the period or further period referred to in that paragraph, or if applicable the period specified in any notice under section 139ZU(3), | ||
whether or not any submissions have been made or information provided. | ||
(3) As soon as practicable after making the determination, the Commission shall give the provider a notice in writing of the determination and the reasons for it. | ||
(4) As soon as practicable after giving the notice under subsection (3), the Commission shall publish the notice on a website maintained by it. | ||
(5) The Commission may, for the purposes of publication under subsection (4), redact any particulars from the notice which appear to the Commission— | ||
(a) to be commercially sensitive, or | ||
(b) to relate to the commission of an offence. | ||
Limitations on amount of administrative financial sanction | ||
139ZW. (1) The amount of an administrative financial sanction imposed under section 139ZS shall not exceed— | ||
(a) in the case of an individual, €20,000,000, or | ||
(b) in the case of a provider that is not an individual, €20,000,000 or, if greater, 10 per cent of the relevant turnover of the provider in the financial year preceding the date of the decision under section 139ZS to impose the sanction. | ||
(2) In subsection (1)(b), ‘relevant turnover’ means turnover of the provider attributable to the service which gave rise to the contravention. | ||
(3) The Commission shall have regard to the following matters in determining the amount of the administrative financial sanction imposed under section 139ZS: | ||
(a) the nature, gravity and duration of the contravention; | ||
(b) the degree of harm to particular people or to the public caused as a result of the contravention; | ||
(c) the extent of any failure by the provider to co-operate with an investigation, provided that acknowledgement of a contravention shall not in itself constitute grounds for reduction of a sanction; | ||
(d) any explanation accepted by the Commission for the contravention or the failure to co-operate with an investigation; | ||
(e) any gain (financial or otherwise) made, or any loss (financial or otherwise) avoided, by the provider or by any person in which that provider has a pecuniary interest or beneficial interest, as a consequence of the contravention; | ||
(f) whether a previous decision under section 139ZS in respect of the provider has been confirmed or made by the appropriate court (within the meaning of section 139ZX) under section 139ZX or confirmed by the Circuit Court under section 139ZY; | ||
(g) the nature and timeliness of any steps taken by the provider to bring the contravention to an end, and any steps taken by the provider to remedy the consequences of the contravention; | ||
(h) the absence or ineffectiveness of internal mechanisms or procedures intended to prevent such a contravention; | ||
(i) the extent to which the contravention was contributed to by the act or omission of a third party, and the extent to which the provider took steps to identify, and mitigate the effect of, the act or omission; | ||
(j) the extent to which the contravention was contributed to by circumstances beyond the control of the provider, and the extent to which the provider took steps to identify, and mitigate the effect of, those circumstances; | ||
(k) the extent to which the management of the provider knew, or ought to have known, that the contravention was occurring or would occur; | ||
(l) the turnover of the provider in the financial years during which the contravention occurred and the ability of the provider to pay a sanction; | ||
(m) any submissions made by the provider under section 139ZU(2) in relation to the determination of the amount of the sanction; | ||
(n) any further information given to the Commission by the provider in response to a request under section 139ZU(3); | ||
(o) previous determinations under this section which have been confirmed or made by the appropriate court (within the meaning of section 139ZX) under section 139ZX or confirmed by the Circuit Court under section 139ZY. | ||
(4) The amount of an administrative financial sanction imposed under section 139ZS shall— | ||
(a) be proportionate to the nature of the contravention, and | ||
(b) be set with a view to deterring the provider, and other providers of broadcasting services, audiovisual on-demand media services or designated online services, from committing a contravention. | ||
(5) The amount of an administrative financial sanction imposed under section 139ZS shall not— | ||
(a) in the case of an individual, be such as would be likely to cause the individual to be adjudicated bankrupt, or | ||
(b) in the case of a provider that is not an individual, be such as would be likely to cause the provider to cease trading. | ||
Appeal against decision | ||
139ZX. (1) The provider to whom a decision under section 139ZS relates may, within 28 days from the date on which the notice referred to in section 139ZT is received, or where section 139ZV applies, within 28 days from the date on which the notice referred to in section 139ZV(3) is received, appeal to the appropriate court against the decision. | ||
(2) An appeal may only be made on— | ||
(a) any ground that could, but for section 38(1), be relied upon by the provider in an application seeking judicial review of the Commission’s decision, | ||
(b) in so far as it is not within the grounds referred to in paragraph (a), the ground that any sanction imposed is not proportionate, or | ||
(c) more than one of the grounds referred to at paragraph (a) and (b). | ||
(3) The appropriate court may, on the application of a provider to whom a decision under section 139ZS relates, extend the period for the making of an appeal under subsection (1), where it is satisfied that— | ||
(a) there is good and sufficient reason for doing so, | ||
(b) the circumstances that resulted in the failure to bring an appeal within the period referred to in subsection (1) were outside the control of the provider, and | ||
(c) an application for confirmation has not been determined under section 139ZY. | ||
(4) In considering an appeal, the appropriate court— | ||
(a) shall have regard to the record of the decision the subject of the appeal, and | ||
(b) may, where it considers it necessary for the fair and proper determination of the appeal, consider any evidence adduced or submission made by the provider concerned, whether or not already adduced or made to the authorised officer or the Commission. | ||
(5) Subject to subsection (7), the appropriate court may, on the hearing of an appeal under subsection (1)— | ||
(a) confirm the decision, or | ||
(b) subject to subsection (6)— | ||
(i) set aside the decision, | ||
(ii) set aside the decision and replace it with such other decision as the court considers it just and appropriate to make, including a decision not to impose an administrative financial sanction, or a decision to impose an administrative financial sanction of a different amount, or | ||
(iii) remit the decision for reconsideration by the Commission, subject to such directions as the court considers appropriate. | ||
(6) A decision of the Commission may not be set aside or remitted by the appropriate court under subsection (5)(b) for error of law or fact unless the appropriate court is satisfied that the Commission committed a serious and significant error in making the decision, or that the Commission committed a series of minor errors which, when taken together, amount to a serious and significant error. | ||
(7) For the purposes of subsection (5), sections 139ZS(4) and 139ZW shall apply to the appropriate court and references to the Commission in those sections shall be construed as references to the appropriate court. | ||
(8) Where the appropriate court is the Circuit Court it may make such interim or interlocutory orders in any proceedings under subsection (1) or (3) as it considers appropriate. | ||
(9) The appropriate court may direct how the costs of an appeal under this section are to be borne. | ||
(10) In this section, ‘appropriate court’ means— | ||
(a) where no administrative financial sanction is imposed under section 139ZS or where the amount of any administrative financial sanction imposed does not exceed €75,000, or such other sum as stands specified in law as that court’s jurisdiction in tort, the Circuit Court, or | ||
(b) in any other case, the High Court. | ||
Circuit Court confirmation of decision | ||
139ZY. (1) Where the provider to whom a decision under section 139ZS relates does not appeal against the decision in accordance with section 139ZX(1), the Commission shall, as soon as is practicable after the expiration of the period referred to in section 139ZX(1), and on notice to the provider, make an application in a summary manner to the Circuit Court for confirmation of the decision. | ||
(2) On the hearing of an application under subsection (1), the Circuit Court shall confirm the decision unless it is satisfied, on the basis of the evidence that was before the Commission when making the decision— | ||
(a) that the Commission made an error of law which is— | ||
(i) manifest from the record of the decision, and | ||
(ii) fundamental so as to deprive the decision of its basis, | ||
or | ||
(b) that any administrative financial sanction imposed is manifestly disproportionate. | ||
(3) If under subsection (2) the Circuit Court does not confirm the decision it may— | ||
(a) annul the decision, or | ||
(b) remit it for reconsideration by the Commission, subject to such directions as it considers appropriate. | ||
(4) A provider may, as soon as practicable after receiving notice of the application under subsection (1), inform the Commission in writing that it does not intend to appear at, or make submissions at, the hearing of the application. | ||
(5) If an application to extend the period for the making of an appeal against a decision is made under section 139ZX(3) to the High Court, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision under section 139ZX(3). | ||
(6) If the High Court makes an order under section 139ZX(3) extending the period for the making of an appeal under section 139ZX(1) against a decision, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision on the appeal under section 139ZX(5). | ||
(7) The Circuit Court may make such interim or interlocutory orders as it considers appropriate in any proceedings under subsection (1). | ||
(8) The Circuit Court may direct how the costs of an application under subsection (1) are to be borne. | ||
Treatment of amounts paid in respect of administrative financial sanctions | ||
139ZZ. A payment received by the Commission of any amount due to it pursuant to a decision confirmed or made under section 139ZX or confirmed under section 139ZY shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct. | ||
Reference on point of law to High Court | ||
139ZZA. (1) Where a division of the Commission decides, before the making of a decision under section 139ZS, or where a decision is made under that section to impose an administrative financial sanction, before the making of a determination under section 139ZV(1), to refer any question of law arising under Chapter 3 or 4 to the High Court, the Commission shall refer the question. | ||
(2) Subject to subsection (3), no appeal shall lie to the Court of Appeal from a decision of the High Court on a reference under subsection (1). | ||
(3) The High Court may grant leave to appeal, where it certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. | ||
Chapter 5 | ||
Notice to end contravention | ||
Notice to end contravention | ||
139ZZB. (1) Where— | ||
(a) the Commission has decided under section 139ZS that it is satisfied that a contravention has occurred, and | ||
(b) the Commission’s decision in so far as it relates to the occurrence of the contravention is confirmed under section 139ZX or 139ZY or is replaced under section 139ZX with a decision to the same effect, | ||
the Commission may, if it is of the view that the contravention is continuing, give notice in writing to the provider the subject of the decision directing him or her to put an end to the contravention. | ||
(2) A notice under subsection (1) shall state— | ||
(a) the steps which the Commission requires the provider to take to put an end to the contravention, and | ||
(b) the period within which those steps must be taken. | ||
(3) A notice under subsection (1) shall be given as soon as practicable after the date on which the decision is confirmed under section 139ZX or 139ZY or is replaced under section 139ZX with a decision to the same effect. | ||
(4) A provider who without reasonable excuse fails to comply with a notice under subsection (1) shall be guilty of a category 1 offence. | ||
(5) Where an offence has been committed under subsection (4) by a provider of a designated online service that is 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. | ||
(6) Where the affairs of a body corporate are managed by its members, subsection (5) 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. | ||
(7) Any proceedings, including summary proceedings, under subsection (5) shall not be instituted except by or with the consent of the Director of Public Prosecutions. | ||
Chapter 6 | ||
Access blocking order | ||
Access blocking order | ||
139ZZC. (1) The Commission may apply to the High Court for an order requiring an internet service provider or a provider of an application store service to block access in the State to a relevant online service or an audiovisual on-demand media service. | ||
(2) An application to the High Court under subsection (1) shall be made on notice— | ||
(a) to the internet service provider or the provider of an application store service concerned, and | ||
(b) to the provider of the relevant online service or audiovisual on‑demand media service concerned. | ||
(3) The court may make an order requiring the blocking of access to a relevant online service if it is satisfied that the provider of the service has actual knowledge that it is making available content that falls within one of the offence-specific categories of harmful online content defined in section 139A(2) and either— | ||
(a) where the service is a designated online service— | ||
(i) the content is made available in contravention of an online safety code which applies to the service, and | ||
(ii) the provider has been convicted of an offence under section 139ZZB(4) for failure to comply with a notice to end the contravention, | ||
or | ||
(b) where the Commission has designated the service but the designation has not taken effect as notice of the designation has not been served on the provider in accordance with section 139H(3)(a)— | ||
(i) making available the content would be a contravention of an online safety code which the Commission intends to apply to the service, and | ||
(ii) the failure to serve notice of the designation on the provider is due to the fault of the provider. | ||
(4) The court may make an order requiring the blocking of access to an audiovisual on-demand media service if it is satisfied that— | ||
(a) the provider of the service has actual knowledge that it is making anything referred to in paragraph (b), (c) or (d) of section 46J(1) available in a catalogue of the service, and | ||
(b) the provider has been convicted of an offence under section 139ZZB(4), for failure to comply with a notice to end the contravention referred to in paragraph (a). | ||
(5) An order may be made under this section if— | ||
(a) the application under subsection (1) was made as soon as practicable after the provider concerned was convicted of the offence referred to in subsection (3)(a)(ii), or (4)(b), or as soon as practicable after the failure referred to in subsection (3)(b)(ii) occurred, as the case may be, and | ||
(b) the order would not be disproportionate. | ||
(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. | ||
(7) The following persons 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: | ||
(a) the internet service provider or provider of an application store service the subject of the order; | ||
(b) the provider of a service access to which is required to be blocked under the order. | ||
(8) Without prejudice to subsection (7), the High Court may, on an application under that subsection or of its own motion, discharge an order under this section if it is satisfied that— | ||
(a) where the order was made on grounds falling within subsection (3)(a)(ii) or (4)(b), the provider of the service has complied with the notice to end the contravention concerned, or | ||
(b) where the order was made on grounds falling within subsection (3)(b), the relevant online service, access to which is required to be blocked under the order, has been designated as a designated online service. | ||
(9) In this section, references to a provider of an application store service blocking access to a service include references to the provider blocking the downloading of software used to provide the service or to access the service. | ||
(10) For the purposes of this section: | ||
‘internet service provider’ means a person who provides access to the internet at endpoints of the internet (including, for example, on a smartphone); | ||
‘provider of an application store service’ means a person who provides a service the main purpose of which is to facilitate the download of, or access to, application software at endpoints of the internet. | ||
Chapter 7 | ||
Content limitation notice | ||
Content limitation notice | ||
139ZZD. (1) Subject to subsection (2), where it appears to the Commission, either in the course of an investigation under this Part or otherwise, that content available on a designated online service is harmful online content, the Commission may give a notice in writing to the provider of the designated online service— | ||
(a) where the content appears to the Commission to fall within the offence-specific category of harmful online content defined in section 139A(2), requiring the provider to remove it or to disable access to it, or | ||
(b) in any other case, requiring the provider to remove the content, to disable access to it, or to limit the availability of it. | ||
(2) Where subsection (1) applies in the course of the investigation of a suspected contravention that relates to the content concerned, the Commission— | ||
(a) shall not issue a notice under subsection (1) before it has made a decision under section 139ZS, and | ||
(b) if the decision under that section is that the contravention has occurred, shall not issue a notice under subsection (1) before the decision, in so far as it relates to the occurrence of the contravention, is confirmed under section 139ZX or 139ZY or is replaced under section 139ZX with a decision to the same effect. | ||
(3) In issuing a notice under subsection (1), the Commission shall have regard to the following matters: | ||
(a) the nature and the scale of the service or services provided by the provider; | ||
(b) the technical capacity of the provider; | ||
(c) levels of risk of harm, and in particular harm to children, from the availability of the content or exposure to it; | ||
(d) the rights of the provider and users of the designated online service, and of the uploader of the content; | ||
(e) the rights of persons to whom the content may pertain; | ||
(f) the proportionality of any requirement contained in the notice, in light of the matters referred to in paragraphs (a) to (e). | ||
(4) Where a notice under subsection (1) requires that the availability of an item of content be limited, the notice may also, without prejudice to the generality of subsection (1), require one or more of the following: | ||
(a) that the provider restrict access to the content to persons who have attained the age of 18 years, or such other age less than 18 years as the Commission may specify; | ||
(b) that a warning or specified information be placed by the provider with the content in a way specified in the notice; | ||
(c) that the provider limit the ability of users of the designated online service to interact with the content; | ||
(d) that the provider ensure that prominence is not given to the content, or the content is not recommended to users of the designated online service, or to users below a specified age, including by automated means. | ||
(5) A notice under subsection (1) shall not impose an obligation on a provider contrary to Article 15 of the E-Commerce Directive. | ||
Procedure in relation to content limitation notice | ||
139ZZE. (1) A notice under section 139ZZD(1) shall— | ||
(a) identify the content the subject of the notice, | ||
(b) state the particular category of harmful online content under section 139A into which the Commission considers that the content falls, and the reasons for that consideration, | ||
(c) provide sufficient information to allow the provider to locate the content on the designated online service, | ||
(d) specify the action required by the Commission under section 139ZZD(1) and the reasons for that action, | ||
(e) where the action required by the Commission under section 139ZZD(1) is that the availability of the content be limited, specify the nature of the limitation, | ||
(f) identify the geographical area within which the action required by the Commission under section 139ZZD(1) must be taken, and | ||
(g) state that the provider, and the uploader where relevant, may make submissions in relation to the notice within such period as may be specified in the notice, which shall not be less than 28 days after the date on which the notice is issued. | ||
(2) A provider who receives a notice under section 139ZZD(1) shall, where the content is user-generated content, take all reasonable steps to provide a copy of that notice and a copy of this section to the uploader of the content within 2 days of receiving it. | ||
(3) The provider shall inform the Commission of all steps taken by the provider in order to comply with subsection (2) and the Commission may direct— | ||
(a) that such further steps as the Commission considers necessary for the purposes of complying with subsection (2) be taken by the provider, within such period as the Commission considers appropriate, or | ||
(b) that no further steps are necessary. | ||
(4) Where a provider receives a notice under section 139ZZD(1), the provider may make submissions to the Commission in relation to the notice within the period specified in the notice, or within such further period as the Commission may allow. | ||
(5) Where an uploader receives a copy of the notice under subsection (2), the uploader may make submissions to the Commission in relation to the notice within the period specified in the notice, or within such further period as the Commission may allow. | ||
(6) Submissions may be made under subsection (4) or (5) in relation to— | ||
(a) whether or not the content the subject of the notice is harmful online content (provided that issue has not been determined by the Commission in a decision under section 139ZS, or by the court under section 139ZX or 139ZY), and | ||
(b) the requirements set out in the notice. | ||
(7) The Commission, after considering any submissions made under subsections (4) and (5) and, having regard to the matters referred to in section 139ZZD(3), shall— | ||
(a) confirm the notice after making such amendments, if any, as it considers necessary, and specify the period within which the provider must comply with the notice, or | ||
(b) revoke the notice. | ||
(8) If the Commission confirms the notice under subsection (7)(a), it shall provide to the provider and (if applicable) the uploader a copy of the notice, or of the notice as amended, and a statement in writing— | ||
(a) of the confirmation and the reasons for it, | ||
(b) of the reasons for any amendment made to the notice, | ||
(c) of the period determined under subsection (7)(a) within which the provider must comply with the notice, and | ||
(d) of the right of the provider or (if applicable) the uploader to appeal the notice in accordance with section 139ZZF. | ||
(9) A provider who without reasonable excuse fails to comply with a notice confirmed under subsection (7)(a) within the period specified under that paragraph, shall be guilty of a category 3 offence. | ||
Appeal | ||
139ZZF. (1) The provider of a designated online service or the uploader of user‑generated content concerned may within 28 days of receipt of a notice confirmed under section 139ZZE(7)(a), appeal to the Circuit Court against the notice. | ||
(2) The Circuit Court, where it considers that the Commission was irrational or erroneous in its reasoning, or committed a failure to comply with fair procedures, or any other clear error of law, in the issuing of the notice referred to in subsection (1), may— | ||
(a) set aside the notice, | ||
(b) replace the notice with such other notice as it considers appropriate, or | ||
(c) remit the notice for reconsideration by the Commission, with such directions as the court considers appropriate. | ||
Publication of content limitation notice | ||
139ZZG. (1) The Commission shall publish the following on a website maintained by it: | ||
(a) a notice which has been confirmed under section 139ZZE(7)(a); | ||
(b) a notice of a decision by the Circuit Court under section 139ZZF(2) to affirm, set aside, replace or remit a notice confirmed under section 139ZZE(7)(a). | ||
(2) The Commission shall publish a list of the notices referred to in subsection (1), in such form as it considers appropriate, on a website maintained by it. | ||
(3) The Commission may redact information from a notice to be published under subsection (1) if it appears to the Commission that— | ||
(a) the publication of the information may prejudice an ongoing investigation under this Part by the Commission, the Garda Síochána or any other public body, or | ||
(b) the information is personal data. | ||
(4) Where the redaction of information under subsection (3) would prevent the remainder of the notice, or a portion of the notice, being understood, the Commission may publish a summary in place of the notice or the portion of the notice. | ||
Chapter 8 | ||
Offences | ||
Categories of offences | ||
139ZZH. (1) A person guilty of an offence under this Act that is stated to be a category 1 offence shall be liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 10 years or both. | ||
(2) A person guilty of an offence under this Act that is stated to be a category 2 offence shall be liable— | ||
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or | ||
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both. | ||
(3) A person guilty of an offence under this Act that is stated to be a category 3 offence shall be liable, on summary conviction, to a class A fine. | ||
Summary prosecution and costs | ||
139ZZI. (1) Summary proceedings for an offence under this Act may be brought and prosecuted by the Commission. | ||
(2) Notwithstanding (in the case of a category 3 offence) section 10 (4) of the Petty Sessions (Ireland) Act 1851 , summary proceedings for an offence under this Act may be instituted— | ||
(a) at any time within 2 years from the date on which the offence was alleged to have been committed, or | ||
(b) if, at the expiry of that period, the person against whom the proceedings are to be brought is outside the State, within 6 months of the date on which he or she next enters the State, | ||
provided that no such proceedings shall be commenced later than 5 years from the date on which the offence concerned was alleged to have been committed. | ||
(3) Where a person is convicted of an offence under this Act, the court may, where it is satisfied that there are good reasons for so doing, order the person to pay the costs and expenses, measured by the court, incurred by the Commission in relation to the investigation, detection and prosecution of the offence, including the costs and expenses of and incidental to an examination of any information provided to the Commission or an authorised officer.”. |