Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

Commission may apply to High Court for order to restrain certain repeated or apprehended contraventions

128. The Principal Act is amended by the substitution of the following section for section 46:

“46.(1) If it appears to the Commission that a person is contravening or has contravened or, having contravened, may in the future contravene—

(a) section 45(1) or (2),

(b) Regulation 89 or 90 of the European Union (Electronic Communications Code) Regulations 2022, or

(c) section 13 (1) of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010 ,

the Commission may apply to the High Court, by motion, for an order under subsection (7) restraining such contravention.

(2) The Commission may conduct an audit of—

(a) the billing system, switching system or contract change system of an undertaking, or

(b) the billing system of a premium rate service provider,

prior to making an application to the High Court referred to in subsection (1).

(3) The High Court may hear the application under subsection (1) only if it is satisfied that a copy of the application has been served on the undertaking or premium rate service provider concerned. On being served with such a copy, that undertaking or provider becomes the respondent to the application.

(4) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1).

(5) The High Court may not require the Commission to give an undertaking as to damages as a condition for the granting of an order under subsection (4).

(6) The Court may not refuse interim or interlocutory relief under subsection (4) merely because the Commission might not suffer damage if relief were not granted pending determination of the application.

(7) On the hearing of an application made under subsection (1), the High Court may make a restraining order requiring the undertaking or premium rate service provider to cease the contravention concerned and not to repeat it, or, if it is of the opinion that the application is not substantiated, refuse the application.

(8) An application for a restraining order under subsection (1) may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention.

(9) On hearing the further application, the High Court may if it is satisfied, having previously been satisfied that the respondent has contravened the provision concerned, and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount may be more or less than the amount proposed by the Commission.

(10) The circumstances surrounding the contravention referred to in subsection (9) include (but are not limited to) the following:

(a) the duration of the contravention;

(b) the effect of the contravention on other parties to the relevant decision, and on end-users and on end-users of premium rate services;

(c) the submission of the Commission with respect to what it considers to be the appropriate amount;

(d) any excuse or explanation for the contravention provided by the respondent.

(11) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.”.