(7)Media service rules under subsection (5) shall require media service providers to have regard to whether facilities such as those referred to in subsection (6) are provided— (a) in the case of an audiovisual broadcasting service— (i) daily, or at other regular intervals, (ii) at popular viewing times, as well as at other times, and (iii) for news and news related matters, as well as for other matters, or (b) in the case of an audiovisual on-demand media service, in an easily identifiable and easily accessible manner.
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(8)Media service rules under subsection (5) may require a broadcaster to ensure that a specified percentage of programmes broadcast on a broadcasting service in a specified period employs specified means by which the understanding and enjoyment by persons referred to in that subsection of that percentage of programmes may be promoted.
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(9)Media service rules shall provide for the matters required to be provided for by Articles 6(1), 6a(1), 7, 7b, 8, 9, 10, 11, Chapter VI and Articles 23(2), 24 and 25 of the Directive (except in so far as provision is made by media service codes).
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(10)The Commission may amend or revoke a media service rule.
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(11)A failure to comply with a media service rule shall be a contravention for the purposes of Part 8B.
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(12)The Commission shall prepare a report for the Minister on the operation of media service rules made under subsection (5), in such form and manner as the Minister may specify, not later than 3 years after the coming into operation of this subsection, and every 3 years thereafter.
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(13)Subject to subsection (14), the following broadcasting rules prepared under section 43 of this Act before the date of coming into operation of this section shall, if in force immediately before that date, continue in force as if made under this section: (a) Access rules (28 January 2019); (b) Rules on Adverts and Teleshopping (28 July 2010).
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(14)After the coming into operation of this section, the broadcasting rules referred to in subsection (13) shall continue to apply to broadcasters only, unless otherwise amended or revoked by the Commission.
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Chapter 4
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Retention of copies of programme material Retention of copies of programme material 46P. (1) A broadcaster shall retain a copy of all programme material— (a) broadcast by the broadcaster, or (b) supplied by the broadcaster under a broadcasting contract or a content provision contract.
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(2)A provider of an audiovisual on-demand media service shall retain a copy of all programme material made available in a catalogue of an audiovisual on-demand media service by the provider.
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(3)The Commission may determine the duration for which copies of programme material shall be retained in each of the cases referred to in subsections (1) and (2) and shall publish the duration on a website maintained by it.
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(4)The Commission may require the broadcaster or provider referred to in subsection (1) or (2) to provide a copy of any programme material to which that subsection applies within a specified period.
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(5)A failure to comply with subsection (1) or (2) shall be a contravention for the purposes of Part 8B.
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(6)A person who fails without reasonable excuse to comply with a requirement under subsection (4) shall be guilty of a category 2 offence.
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(7)The making or retention of a copy of programme material for the purposes of compliance with subsection (1) or (2) is not a contravention of the Copyright and Related Rights Act 2000 .
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Chapter 5
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Procedures in relation to media service codes and media service rules Consultation 46Q. (1) Before making a media service code or media service rule, the Commission shall make a draft of it available for inspection by any person.
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(2)A person may make submissions to the Commission in relation to the draft referred to in subsection (1), within such period as the Commission specifies for that purpose.
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(3)The Commission shall publish on a website maintained by it, and may publish in a newspaper circulating in the State, notice— (a) that a draft referred to in subsection (1) is available for inspection, (b) of the place at which, or the means by which, it may be inspected, and (c) of the period specified under subsection (2) for the making of submissions.
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(4)The Commission shall, in finalising a draft media service code or media service rule, have regard to any submissions made during the period specified under subsection (2).
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Laying of codes and rules 46R. (1) A copy of any media service code or media service rule made or amended, and notice in writing of the revocation of any code or rule, shall be given to the Minister as soon as practicable after the code or rule is made, amended or revoked.
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(2)A media service code or media service rule shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made or amended and, if a resolution annulling the code or rule is passed by either such House within the next 21 days on which that House sits after the code or rule is laid before it, the code or rule shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.
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(3)Subject to section 46O(12), the Commission shall, from time to time as it sees fit, or at the direction of the Minister, review the effect of a media service code or media service rule and shall prepare a report in relation to that review and give it to the Minister.
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(4)The Minister shall cause a copy of the report referred to in subsection (3) to be laid before each House of the Oireachtas as soon as practicable after receiving it.”.
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PART 6
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Amendment of Part 4 of Principal Act Amendment of section 47 of Principal Act 11. Section 47 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (1): “(1) A broadcaster or provider of an audiovisual on-demand media service shall give due and adequate consideration to a complaint made in writing to it that it has failed to comply with one or more of the matters referred to in section 48(1) where, in the opinion of the broadcaster or provider, the complaint is made in good faith and is not frivolous or vexatious.”, (b) in subsection (2)— (i) in paragraph (b), by the deletion of “or” in the last place it occurs, (ii) in paragraph (c), by the substitution of “those dates, or” for “those dates.”, and (iii) by the insertion of the following paragraph after paragraph (c): “(d) in the case the complaint relates to programme material made available on an audiovisual on-demand media service, the date the programme material ceased to be available on that service.”, (c) in subsection (3), by the substitution of “in accordance with subsection (1) of complaints made in accordance with subsection (2) or referred under section 48(3)” for “of complaints made under subsection (1)”, (d) in subsection (5), by the substitution of “broadcasters or providers of an audiovisual on-demand media service” for “broadcasters”, (e) in subsection (6), by the substitution of “the matters referred to in subsection (3)(a) and (b), and the address of the website referred to in subsection (4),” for “the information required under subsection (3)”, (f) in subsection (7), by the insertion of “or referred under section 48(3)” after “made under subsection (1)”, and (g) by the substitution of “broadcaster or provider of an audiovisual on-demand media service” for “broadcaster” in each place in which it occurs.
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Complaints to the Commission about broadcasts or programme material 12. The Principal Act is amended by the substitution of the following section for section 48: “48. (1) A person may make a complaint to the Commission that there has been 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) or section 127(6).
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(2)A complaint shall be made in writing to the Commission not more than 30 days after— (a) where the complaint relates to one broadcast, the date of the broadcast, (b) where the complaint relates to 2 or more unrelated broadcasts, the date of the earlier or earliest, as the case may be, of those broadcasts, (c) where the complaint relates to 2 or more related broadcasts, of which at least 2 are made on different dates, the later or latest of those dates, or (d) where the complaint relates to programme material made available on an audiovisual on-demand media service, the date the programme material ceased to be available on that service.
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(3)The Commission may, in the first instance, refer the complaint to the broadcaster or provider of an audiovisual on-demand media service concerned, for his or her consideration in accordance with a code of practice prepared under section 47(3).
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(4)If the Commission does not refer a complaint under subsection (3), it may, following consideration of the complaint, dismiss the complaint, if it is satisfied that— (a) the complaint is frivolous or vexatious or was not made in good faith, (b) the subject matter of the complaint is trivial, (c) the complaint has been resolved effectively under a code of practice prepared under section 47(3), or (d) the complaint was not made in accordance with subsection (2).
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(5)If the Commission does not refer a complaint under subsection (3) or dismiss it under subsection (4), it shall refer the complaint to a person authorised under section 139ZI(2) for his or her consideration.
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(6)Where the Commission refers a complaint under subsection (3) or (5) or dismisses a complaint under subsection (4), it shall notify the person who made the complaint of that reference or dismissal as soon as practicable after doing so, and no later than 30 days after the date of the reference or dismissal.
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(7)Where a complaint is dismissed under subsection (4), the notification referred to in subsection (6) shall include a statement of the reasons for the dismissal.
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(8)The Commission shall either refer a complaint under subsection (3) or (5) or dismiss a complaint under subsection (4) within 60 working days from the date on which the complaint is received and shall publish notice of the fact of the reference or dismissal on a website maintained by it.
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(9)A complaint made under subsection (1) of section 47 in accordance with subsection (2) of that section may, whether resolved under a code of practice prepared under subsection (3) of that section or not, be treated by the Commission as a complaint made to the Commission in accordance with subsection (2) of this section.”.
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Amendment of section 49 of Principal Act 13. Section 49 of the Principal Act is amended— (a) in subsection (3), by the deletion of “within 6 months of the establishment day,”, (b) in subsection (17)— (i) by the substitution of “on application to it” for “on application to them”, and (ii) by the substitution of “as it considers appropriate” for “as they consider appropriate”, (c) in subsection (19), by the substitution of “the Commission proposes” for “the Compliance Committee propose”, (d) in subsection (20)— (i) by the substitution of “it decides” for “they decide”, and (ii) by the substitution of “its decision” for “their decision”, in both places in which it occurs, (e) in subsection (21), in paragraph (q), by the substitution of “ section 31 of the Electoral Reform Act 2022 ” for “section 3 of the Act of 1998”, (f) in subsection (22), in paragraph (a), by the substitution of “the giving of the notification” for “issue of the notification”, (g) in subsection (23), by the substitution of “the Commission may, on notice to the broadcaster,” for “the Compliance Committee may recommend to the Authority, and the Authority shall follow such recommendation, that the Authority”, (h) by the insertion of the following subsection after subsection (25): “(25A) The Commission may amend a scheme prepared under subsection (3) and an amended scheme shall be considered to be a scheme prepared under subsection (3).”, and (i) by the insertion of the following subsection after subsection (28): “(29) A scheme prepared under subsection (3) before the date of coming into operation of section 13 of the Online Safety and Media Regulation Act 2022 shall, if in force immediately before that date, continue in force as if made under this section as amended by that section.”.
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PART 7
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Amendment of Part 5 of Principal Act Amendment of section 50 of Principal Act 14. Section 50 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (1): “(1) In this section— ‘contractor’ means a holder of a contract under Part 6 or 8; ‘investigator’ means a person appointed as an investigator under subsection (2).”, (b) by the substitution of the following subsection for subsection (2): “(2) If a person authorised by the Commission under subsection (2A) has reason to suspect that a contractor is not providing a service in accordance with the terms of the contractor’s contract, the person may appoint a member of the staff of the Commission, or such other person as he or she considers appropriate, as an investigator to carry out an investigation under this section into the operational, programming, financial, technical or other affairs of the contractor.”, (c) by the insertion of the following subsection after subsection (2): “(2A) The Commission may authorise any Commissioner or member of its staff to make an appointment referred to in subsection (2).”, (d) in subsection (3)— (i) by the substitution of “investigator” for “Compliance Committee”, and (ii) by the substitution of “investigator” for “Committee” in the second place it occurs, (e) in subsection (6), by the substitution of “Commission” for “Committee” in the second place it occurs, (f) in subsection (8), by the insertion of “the operation of an investigation under this section, and” before “the conduct”, (g) by the insertion of the following subsections after subsection (8): “(8A) The functions of the Commission under subsections (5), (6) and (7) 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. (8B) If the person appointing an investigator to carry out an investigation under subsection (2) is a Commissioner, the division exercising the functions referred to in subsection (8A) in relation to the investigation shall not include that Commissioner.”, and (h) by the deletion of subsection (9).
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Amendment of section 51 of Principal Act 15. Section 51 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (1): “(1) Without prejudice to any provision of this Act, or of a contract made under it, the Commission may terminate, or suspend for such period as it considers reasonable, a contract entered into under Part 6 or Part 8— (a) if any false or misleading information of a material nature was given to the Commission by or on behalf of the holder of the contract before it was entered into, or (b) if, following an investigation under section 50, the Commission has made a finding under subsection (7) of that section that the holder of the contract has failed on one or more occasions to comply with a term or condition of the contract, and the nature of that failure is of such seriousness as in the Commission’s opinion warrants the termination or suspension of the contract.”, (b) by the insertion of the following subsections after subsection (1): “(1A) The functions of the Commission under subsections (1) and (2), 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. (1B) In the case of functions under subsection (1)(b), and subsection (2) as it applies to a decision under subsection (1)(b), if the person who appointed the investigator to carry out the investigation referred to in subsection (1)(b) was a Commissioner, the division referred to in subsection (1A) shall not include that Commissioner.”, (c) by the substitution of the following subsection for subsection (2): “(2) Where the Commission proposes to make a decision under subsection (1) the Commission shall by notice in writing afford the holder of the contract concerned an opportunity to make submissions, in accordance with any rules made under subsection (3), at a hearing before the Commission in respect of the matter under consideration.”, (d) in subsection (3), by the insertion of “the operation of this section, including” before “the conduct”, (e) by the insertion of the following subsection after subsection (3): “(3A) The Commission may make guidelines in relation to the operation of section 50 and this section and shall publish any guidelines on a website maintained by it.”, and (f) by the deletion of subsection (5).
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Amendment of section 57 of Principal Act 16. Section 57 of the Principal Act is amended by the deletion of subsections (1) and (2).
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PART 8
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Amendment of Part 6 of Principal Act Amendment of section 58 of Principal Act 17. Section 58 of the Principal Act is amended in subsection (1) by the deletion of the definition of “television programme service contract”.
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Amendment of section 59 of Principal Act 18. Section 59 of the Principal Act is amended in subsection (4) by the deletion of “registered”.
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Amendment of section 60 of Principal Act 19. Section 60 of the Principal Act is amended by the deletion of subsections (4) and (5).
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Amendment of section 62 of Principal Act 20. Section 62 of the Principal Act is amended by the substitution of “The Commission shall not grant” for “The Contract Awards Committee shall not recommend to the Authority the grant of”.
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Amendment of section 63 of Principal Act 21. Section 63 of the Principal Act is amended by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”.
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Amendment of section 64 of Principal Act 22. Section 64 of the Principal Act is amended by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”.
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Amendment of section 65 of Principal Act 23. Section 65 of the Principal Act is amended— (a) in subsection (2)— (i) in paragraph (a), by the substitution of “invited.” for “invited, and”, and (ii) by the deletion of paragraph (b), (b) by the deletion of subsection (5), (c) in subsection (6), by the substitution of “The Commission may, by public notice, in such form and manner as it considers appropriate,” for “On receipt of a direction from the Authority under subsection (2) the Contract Awards Committee may, in accordance with the terms of any such direction, by public notice”, (d) by the substitution of the following subsection for subsection (8): “(8) Subject to this Part, the Commission shall invite applications for a sound broadcasting contract for the provision of a sound broadcasting service in each area specified by the Commission under subsection (2), and may enter into such a contract.”, (e) by the insertion of the following subsection after subsection (8): “(8A) For the purposes of subsection (8) the Commission may consider the results of any study conducted under subsection (3).”, (f) in subsection (10), by the substitution of “score to each of the criteria specified in section 66(2), either individually or in combination,” for “score to each, or a combination of, the criteria specified in section 66(2)”, and (g) by the deletion of subsection (12).
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Amendment of section 66 of Principal Act 24. Section 66 of the Principal Act is amended— (a) in subsection (2), in paragraph (l), by the deletion of “where directed by the Authority,”, (b) in subsection (4)— (i) in paragraph (a), by the substitution of “application.” for “application, and”, and (ii) by the deletion of paragraph (b), and (c) in subsection (5), by the substitution of “the Commission decides to refuse to award a broadcasting contract to an applicant, it shall” for “the Contract Awards Committee decides to refuse to recommend the award of a broadcasting contract to an applicant, the Contract Awards Committee shall”.
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Amendment of section 67 of Principal Act 25. Section 67 of the Principal Act is amended— (a) in subsection (1), by the deletion of the definition of “Committee”, (b) in subsection (2), by the substitution of “Commission” for “Committee” in both places in which it occurs, (c) in subsection (3), by the substitution of “Commission” for “Committee”, (d) in subsection (4)— (i) by the substitution of “Commission” for “Committee” in both places in which it occurs, (ii) in paragraph (i), by the substitution of “section 65(8).” for “section 65(8), or”, and (iii) by the deletion of paragraph (ii), (e) in subsection (5), by the substitution of “Commission” for “Committee”, (f) in subsection (6)— (i) by the substitution of “Commission” for “Committee” in the first place where it occurs, and (ii) by the substitution of the following paragraph for paragraph (a): “(a) assess the incumbent’s compliance with the terms of its sound broadcasting contract and Part 3B,”, (g) in subsection (7), in paragraph (b), by the substitution of “Commission” for “Committee”, and (h) in subsection (8)— (i) by the substitution of “Commission” for “Committee” in the first place where it occurs, (ii) in paragraph (a), by the substitution of “concerned, or” for “concerned,”, (iii) by the deletion of paragraph (b), and (iv) by the substitution of the following paragraph for paragraph (c): “(c) agree amended contract terms with the incumbent.”.
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Amendment of section 68 of Principal Act 26. Section 68 of the Principal Act is amended— (a) in subsection (1), by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”, (b) in subsection (2), by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”, and (c) in subsection (3), by the substitution of “Section 46L(5)” for “Section 39(1)(c)”.
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Amendment of section 69 of Principal Act 27. Section 69 of the Principal Act is amended— (a) in subsection (4), by the substitution of “the Commission” for “the Authority or the Compliance Committee”, and (b) in subsection (5), by the deletion of “registered”.
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Amendment of section 70 of Principal Act 28. Section 70 of the Principal Act is amended in subsection (1) by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”.
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Amendment of section 71 of Principal Act 29. Section 71 of the Principal Act is amended— (a) in subsection (2), in paragraph (b), by the deletion of “a MMD system,”, (b) in subsection (4), by the substitution of “The Commission” for “The Authority, on the recommendation of the Contract Awards Committee,”, (c) in subsection (5), in paragraph (a), by the substitution of “media service codes or media service rules” for “broadcasting codes or rules”, (d) in subsection (6)— (i) by the substitution of the following paragraph for paragraph (a): “(a) contains anything referred to in section 46J(1)(c) or (d),”, and (ii) by the insertion of the following paragraph after paragraph (a): “(aa) contains anything which may impair the physical, mental or moral development of children which is not presented in such a way that children will not normally hear or see it, or”, (e) by the insertion of the following subsections after subsection (8): “(8A) Where under a levy order under section 21 a levy becomes payable in respect of a levy period by a person who, in that period, paid a fee to the Commission under subsection (8), the Commission shall— (a) deduct the amount of the fee from the amount payable by that person under the levy order, and (b) if the fee paid is more than the amount payable under the levy order, refund to that person so much of the fee as exceeds that amount. (8B) Payment of a refund under subsection (8A)(b) shall be deferred for any period for which payment of the amount under the levy order referred to in that paragraph is deferred.”, and (f) by the insertion of the following subsection after subsection (10): “(11) In this section, ‘excepted person’ means a person who is under the jurisdiction of another Member State, and for the purposes of this subsection section 2A applies to a person providing a sound broadcasting service— (a) as if references to a media service provider were references to a provider of a sound broadcasting service, (b) as if references to audiovisual media service activity were references to activity relating to the sound broadcasting service concerned, and (c) as if references to relevant editorial decisions were references to editorial decisions about the sound broadcasting service concerned.”.
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Amendment of section 72 of Principal Act 30. Section 72 of the Principal Act is amended— (a) in subsection (1), by the deletion of “under and in accordance with a MMD system transmission licence or”, (b) in subsection (3), by the deletion of “76(4) or”, and (c) in subsection (7)— (i) by the deletion of “the holder of a MMD system transmission licence is required under section 76(4), or”, (ii) by the deletion of “holder or an”, and (iii) in paragraph (a), by the substitution of “Part 3B” for “Part 3”.
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Amendment of section 78 of Principal Act 31. Section 78 of the Principal Act is amended in subsection (1) by the deletion of “or 74(2)”.
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PART 9
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Amendment of Part 7 of Principal Act Amendment of section 86 of Principal Act 32. Section 86 of the Principal Act is amended in subsection (4) by the substitution of “a Commissioner” for “a member of the Authority, the Contract Awards Committee or the Compliance Committee”.
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Amendment of section 106 of Principal Act 33. Section 106 of the Principal Act is amended— (a) in subsection (3)— (i) by the substitution of “Subject to subsections (3A) and (3B)” for “Subject to the requirements of section 41(2)”, (ii) in paragraph (a), by the substitution of “advertisements,” for “advertisements, and”, (iii) in paragraph (b), by the substitution of “hour, and” for “hour.”, and (iv) by the insertion of the following paragraph after paragraph (b): “(c) for audiovisual broadcasting services, the time allowed for broadcasting advertisements in the period between 06. 00 and 18. 00 and in the period between 18. 00 and 24. 00 each day.”, (b) by the insertion of the following subsections after subsection (3): “(3A) For sound broadcasting services— (a) the time fixed under subsection (3)(a), shall not exceed 15 per cent of the total daily broadcasting time, and (b) the period fixed under subsection (3)(b), shall not exceed 10 minutes in any hour. (3B) The time fixed under subsection (3)(c) shall not exceed 20 per cent of the time in each period. (3C) A failure to comply with subsection (3) shall be a contravention for the purposes of Part 8B.”, and (c) by the deletion of subsection (7).
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Amendment of section 114 of Principal Act 34. Section 114 of the Principal Act is amended in subsection (1)— (a) in paragraph (b), by the deletion of “and teletext services”, and (b) in paragraph (h), by the substitution of “audiovisual on-demand media services” for “non-broadcast non-linear audio-visual media services”.
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Amendment of section 118 of Principal Act 35. Section 118 of the Principal Act is amended in subsection (1)— (a) in paragraph (b), by the deletion of “and teletext services”, and (b) in paragraph (h), by the substitution of “audiovisual on-demand media services” for “non-broadcast non-linear audio-visual media services”.
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Amendment of section 123 of Principal Act 36. (1) Subject to subsection (2), section 123 of the Principal Act is amended— (a) by the substitution of the following subsection for subsection (1): “(1) The Minister, with the approval of the Minister for Public Expenditure and Reform, may pay to RTÉ, TG4 and the Commission out of moneys provided by the Oireachtas, in respect of each financial year, an amount equal to the total of the receipts in that year in respect of television licence fees apportioned to RTÉ, TG4 and the Commission as the Minister determines in accordance with subsection (1A) less— (a) any expenses certified by the Minister as having been incurred by him or her in that year in relation to the collection of those fees, and (b) any amount paid under section 156(2).”, and (b) by the substitution of the following subsection for subsection (1A): “(1A)(a) The Minister shall, after consultation with the Minister for Public Expenditure and Reform, determine the portion of the amount referred to in subsection (1) to be paid to RTÉ, TG4 and the Commission respectively. (b) When making a determination for the purposes of paragraph (a), the Minister shall— (i) have regard to the ability of RTÉ and TG4 to fulfil their public service objects, and (ii) ensure that the amount, if any, to be paid to the Commission under subsection (1) shall not exceed 50 per cent of the estimate of the expenses of the Commission for the financial year concerned as set out in its estimates of income and expenditure submitted to the Minister under section 26(1) in the financial year immediately preceding the year in which an amount under subsection (1) is to be paid.”.
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(2)The amendment of section 123 of the Principal Act by subsection (1) shall have effect only in relation to financial years beginning on or after the date on which the Commission first makes a levy order under section 21 of that Act as inserted by section 8 .
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Amendment of section 124 of Principal Act 37. Section 124 of the Principal Act is amended in subsection (9) by the deletion of paragraph (h).
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Amendment of section 125 of Principal Act 38. Section 125 of the Principal Act is amended in subsection (7) by the deletion of “and material which, if transmitted, would constitute a direct offer to the public for the sale or supply to them of goods or other property (whether real or personal) or services”.
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Amendment of section 127 of Principal Act 39. Section 127 of the Principal Act is amended— (a) in subsection (6)— (i) in paragraph (a), by the substitution of “advertisements,” for “advertisements, and”, (ii) in paragraph (b), by the substitution of “period, and” for “period.”, and (iii) by the insertion of the following paragraph after paragraph (b): “(c) subject to subsection (6A), the time allowed for broadcasting advertisements in the period between 06.00 and 18.00 hours and in the period between 18.00 and 24.00 hours each day.”, (b) by the insertion of the following subsections after subsection (6): “(6A) The time fixed under subsection (6)(c) shall not exceed 20 per cent of the time in each period. (6B) A failure to comply with subsection (6) shall be a contravention for the purposes of Part 8B.”, and (c) by the deletion of subsection (11).
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Availability and prominence of public service programmes and services 40. Part 7 of the Principal Act is amended by the insertion of the following Chapter after Chapter 6: “Chapter 7 Availability and prominence of public service programmes and services Interpretation 128A. In this Chapter— ‘appropriate network’ has the same meaning as it has in section 77; ‘interactive guide’ means an interface, transmitted by means of an electronic communications network, by which a person can select a service or programme to view on a platform, appropriate network or satellite television service; ‘platform’ means a service, transmitted by means of an electronic communications network and accessed by the use of an interactive guide, which re-transmits or makes available more than one audiovisual media service, including at least one audiovisual on-demand media service; ‘platform provider’ means a person who provides a platform, whether or not the person is also the provider of an interactive guide to the platform; ‘public service audiovisual broadcasting service’ means an audiovisual broadcasting service which— (a) is provided by a corporation or a subsidiary of a corporation, (b) is provided by the holder of a television programme service contract, under that contract, or (c) is designated under section 128D; ‘public service audiovisual on-demand media service’ means an audiovisual on-demand media service which— (a) is provided by a corporation or a subsidiary of a corporation, (b) is provided by the holder of a television programme service contract, or (c) is designated under section 128D; ‘public service programme’ means an audiovisual programme broadcast on a public service audiovisual broadcasting service or made available in a catalogue of a public service audiovisual on-demand media service; ‘public service provider’ means the provider of a public service audiovisual broadcasting service or a public service audiovisual on‑demand media service; ‘satellite television service’ has the same meaning as it has in section 77.
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Must-carry and must-offer obligations for platforms 128B. (1) A platform provider shall comply with a request— (a) by a public service provider that a particular public service audiovisual broadcasting service provided by the public service provider be re-transmitted on the platform provider’s platform, and (b) by a public service provider that a particular public service audiovisual on-demand media service provided by the public service provider be made available on the platform provider’s platform.
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(2)A public service provider shall ensure that any public service audiovisual broadcasting service or public service audiovisual on‑demand media service it provides is at all times offered to platform providers in such a way that it may be re-transmitted or made available on their platforms.
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(3)The obligations in subsections (1) and (2) shall not preclude the conclusion of an agreement between the public service provider and the platform provider in relation to— (a) the remuneration of the public service provider by the platform provider, or (b) fair, reasonable and non-discriminatory terms of use of the public service audiovisual broadcasting service or public service audiovisual on-demand media service.
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(4)If a dispute arises between a platform provider and a public service provider in relation to the remuneration of the public service provider— (a) the dispute shall be notified to the Commission by the public service provider or the platform provider, (b) the Commission shall take whatever steps it considers appropriate to encourage the use of mediation to resolve the dispute, and (c) if the dispute is not resolved within a reasonable period of time the Commission shall, at the request of either the platform provider or the public service provider and following a reasonable opportunity for each of them to make submissions, make a determination in relation to the dispute.
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(5)The Commission may make rules prescribing: (a) the ways in which a platform provider may re-transmit or make available on its platform the services referred to in subsection (1) for the purposes of complying with a request; (b) the ways in which a public service audiovisual broadcasting service may be transmitted or a public service audiovisual on-demand media service may be made available by a public service provider in order to ensure compliance with subsection (2).
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(6)Where a platform is also an appropriate network or a satellite television service— (a) in respect of the re-transmission of broadcasting services, section 77 shall apply to the platform notwithstanding this section and any rules made under it, and (b) in respect of the making available of audiovisual on-demand media services, this section and any rules made under it, in so far as they relate to such services, shall apply to the platform.
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(7)A failure to comply with subsection (1) or (2) shall be a contravention for the purposes of Part 8B.
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(8)In this section, ‘re-transmission’ means the provision of near‑simultaneous, unaltered and unabridged transmission.
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Prominence on interactive guides 128C. (1) The Commission may, subject to subsection (3), make rules requiring providers of interactive guides to take steps to ensure the prominence on such guides of any of the following: (a) public service programmes, or categories of them; (b) public service audiovisual broadcasting services, or the schedules of such services; (c) public service audiovisual on-demand media services, or the catalogues of such services.
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(2)In preparing rules under subsection (1), the Commission shall have regard to the following matters: (a) the need to promote access by the widest possible audience to the programmes and services referred to in subsection (1); (b) the nature of providers of interactive guides, including the technical ability of providers and the number of users of guides; (c) the nature of public service providers, including the amount of public service programmes broadcast or made available by providers; (d) the rights of providers of interactive guides; (e) the rights of users of interactive guides, and their likely expectations as to the availability and prominence on such guides of the programmes and services referred to in subsection (1), with particular regard to their rights and likely expectations regarding Irish language programmes and services; (f) contractual arrangements which may exist between public service providers and providers of interactive guides; (g) technological developments; (h) the proportionality of any requirement under the rules, in light of the matters referred to in paragraphs (b), (c), (d) and (e).
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(3)The Commission may make rules under subsection (1)(a) only if it appears to the Commission that the programmes concerned— (a) relate to Irish culture, history, heritage, society, sport, language, or other matters of interest to the people of the island of Ireland, (b) contain impartial and independent journalism, (c) relate to an event or issue of major importance to the people of the island of Ireland, and to people of Irish ancestry living abroad, (d) relate to environmental sustainability and climate change, (e) relate to human rights, including equality, diversity and inclusion, or (f) relate to science or education.
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(4)Rules under subsection (1) may require that different steps be taken— (a) by different types of providers, or (b) in relation to different types of guides.
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(5)A failure to comply with any rules made under subsection (1) shall be a contravention for the purposes of Part 8B.
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Designation of public service audiovisual broadcasting or on-demand media services 128D. (1) Subject to subsection (2), if the Commission recommends to the Minister— (a) that a specified audiovisual broadcasting service provided by a media service provider under the jurisdiction of the State be designated as a public service audiovisual broadcasting service for the purposes of section 128B or 128C, or (b) that a specified audiovisual on-demand media service provided by a media service provider under the jurisdiction of the State be designated as a public service audiovisual on-demand media service for the purposes of section 128B or 128C, the Minister may make an order designating the service accordingly.
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(2)The Commission shall not make a recommendation under subsection (1), and the Minister shall not make an order under that subsection, unless satisfied that the service has the character of a public service.
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Consultation and laying 128E. (1) In making rules under section 128B(5) or 128C(1), or a recommendation under section 128D(1), the Commission may consult with such persons as it sees fit.
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(2)Any rule made under section 128B(5) or 128C(1) shall be laid by the Commission, and any order made under section 128D(1) shall be laid by the Minister, before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the rule or order is passed by either such House within the next 21 days on which that House sits after the rule or order is laid before it, the rule or order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.”.
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PART 10
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Amendment of Part 8 of Principal Act Amendment of section 129 of Principal Act 41. Section 129 of the Principal Act is amended in subsection (1)— (a) by the insertion of the following definition after the definition of “Acts of 1926 to 2009”: “‘listed simulcast service’ means a sound broadcasting service designated as a listed simulcast service under section 134(7)(b);”, (b) in the definition of “television multiplex licence”, by the substitution of “section 132.” for “section 132;”, and (c) by the deletion of the definition of “television programme service contract”.
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Amendment of section 134 of Principal Act 42. The Principal Act is amended by the substitution of the following subsections for subsections (1) to (6): “(1) Where the Commission invites applications for a sound broadcasting multiplex contract under section 136, it may— (a) identify as ‘relevant incumbents’ sound broadcasting contractors who, under sound broadcasting contracts have the right and duty to establish, maintain and operate sound broadcasting transmitters in part or all of the coverage area (specified under section 136(3)) to which the contract relates, and (b) offer to any relevant incumbents it considers appropriate an amendment to its relevant sound broadcasting contract (‘a simulcasting amendment’) for the purpose of ensuring simulcasts of sound broadcasting contract services on sound broadcasting multiplexes.
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(2)In identifying relevant incumbents the Commission may use whatever procedures it considers necessary, including consultation with the Communications Regulator.
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(3)A relevant incumbent shall have 60 days in which to accept in full or reject in full the offer of a simulcasting amendment.”.
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Amendment of section 136 of Principal Act 43. Section 136 of the Principal Act is amended— (a) in subsection (1)— (i) by the substitution of “the whole” for “a whole”, (ii) by the substitution of “shall invite” for “shall direct the Contract Awards Committee to invite”, and (iii) by the deletion of “and the Contract Awards Committee shall comply with the direction”, (b) by the substitution of the following subsection for subsection (2): “(2) Subject to this Part, the Commission may enter into a multiplex contract with a person who makes an application for such a contract in accordance with this section.”, and (c) in subsection (7), by the substitution of “Commission invites” for “Authority directs the Contract Awards Committee to invite”.
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Amendment of section 138 of Principal Act 44. Section 138 of the Principal Act is amended— (a) in subsection (4), in paragraph (b), by the substitution of “the Commission” for “the Authority or the Compliance Committee”, and (b) in subsection (5), by the deletion of “registered”.
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PART 11
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Online safety Online safety 45. The Principal Act is amended by the insertion of the following Part after Part 8: “PART 8A Online safety
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Chapter 1
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Interpretation: harmful online content and age-inappropriate online content Harmful online content 139A. (1) For the purposes of this Act, online content is ‘harmful online content’ if it is one of the following 2 kinds: (a) content that falls within one of the offence-specific categories of online content defined in subsection (2); (b) content that— (i) falls within one of the other categories of online content defined in subsection (3), and (ii) meets the risk test defined in subsection (4).
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(2)The offence-specific categories of online content are— (a) the categories listed in Schedule 3, and (b) any category specified for the purposes of this paragraph by order under section 139B.
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(3)The other categories of online content are: (a) online content by which a person bullies or humiliates another person; (b) online content by which a person promotes or encourages behaviour that characterises a feeding or eating disorder; (c) online content by which a person promotes or encourages self-harm or suicide; (d) online content by which a person makes available knowledge of methods of self-harm or suicide; (e) any category specified for the purposes of this paragraph by order under section 139B.
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(4)Online content meets the risk test for the purposes of subsection (1)(b)(ii) if it gives rise to— (a) any risk to a person’s life, or (b) a risk of significant harm to a person’s physical or mental health, where the harm is reasonably foreseeable.
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(5)For the purposes of this Act, any question whether particular online content falls within a category under this section shall be determined on the balance of probabilities.
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Power to specify other harmful online content 139B. (1) If the Commission makes a proposal to the Minister that a category of online content should be specified for the purposes of section 139A(2)(b) or (3)(e), the Minister may make an order giving effect to the proposal.
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(2)Section 139C sets out the procedure for proposals and orders under subsection (1).
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(3)A proposal under subsection (1) that a category of online content should be specified for the purposes of section 139A(2)(b), and an order giving effect to such a proposal, may be made only if— (a) it is a category of content by which a person does a thing contrary to an enactment specified in the proposal, and (b) the thing done is an offence under that enactment.
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(4)The Commission may make a proposal under subsection (1) only if satisfied— (a) that giving effect to the proposal will enable the Commission to take action against significant risks posed by the content within the proposed category, (b) that those risks are not sufficiently addressed by available means (including means available to other regulators, providers of relevant online services, or others), and (c) that, having regard to the protection of children, to the protection of the public generally, and to all other relevant considerations, it is in the public interest to give effect to the proposal.
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(5)In deciding whether to make a proposal under subsection (1), the Commission shall have regard in particular to— (a) levels of availability of any online content on relevant online services, (b) levels of risk of exposure to any online content when using relevant online services, (c) levels of risk of harm, and in particular harm to children, from the availability of content or exposure to it, (d) changes in the nature of online content and in levels of availability and risk referred to in paragraphs (a) to (c), (e) the impact of automated decision-making in relation to content delivery and content moderation by relevant online services, and (f) the rights of providers of designated online services and of users of those services.
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Procedure for proposals and orders under section 139B 139C. (1) The Commission may make a proposal under section 139B(1) only if— (a) the Commission has published a draft of the proposal in a way that it thinks appropriate to bring it to the attention of members of the public, (b) it has published with the draft a notice stating how members of the public may submit comments to it, and within what time, (c) it has consulted about the draft any advisory committee it has established for that purpose under section 19, (d) it has carried out any other consultation that it considers appropriate on the draft, and (e) it has considered any comments submitted to it in accordance with a notice under paragraph (b) or in consultation under this subsection.
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(2)On receiving a proposal the Minister shall— (a) consult the Joint Oireachtas Committee, (b) consider the proposal in the light of that consultation and any other consultation the Minister considers appropriate, and (c) respond to the Commission within a reasonable time.
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(3)The Minister’s response must be either— (a) to accept the proposal for consideration by the Government, or (b) to request the Commission to reconsider the proposal.
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(4)The Minister may make an order under section 139B(1) giving effect to a proposal only if— (a) the Minister has accepted the proposal for consideration by the Government, and (b) the Government has approved the proposal.
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(5)The Minister may accept a proposal for consideration, and the Government may approve a proposal, only if satisfied of the matters listed in section 139B(4).
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(6)In deciding whether to accept or approve a proposal, the Minister and the Government shall have regard in particular to the matters listed in section 139B(5).
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(7)Where an order is proposed to be made under section 139B(1), a draft of the order shall be laid by the Minister before each House of the Oireachtas and the order shall not be made unless a resolution approving the draft has been passed by each such House.
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Age-inappropriate online content 139D. In this Part, ‘age-inappropriate online content’ means online content that is likely to be unsuitable for children (either generally or below a particular age), having regard to their capabilities, their development, and their rights and interests, including in particular content consisting of— (a) pornography, or (b) realistic representations of, or of the effects of, gross or gratuitous violence or acts of cruelty.
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Chapter 2
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Designated online services Designation of online services 139E. (1) The Commission may designate a relevant online service as a service to which online safety codes may be applied under Chapter 3.
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(2)A designation under this section may be made in relation to a named service, or in relation to all services falling within a category of services described in the designation (and a service may be designated both as a named service and as falling within a category).
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(3)Subject to section 139G the Commission, in deciding whether to designate a named service or a category of services, shall have regard in particular to— (a) the nature and the scale of the service or of services within the category, (b) provision made or that may be made by online safety codes that may be applied to the service or to services within the category, (c) other provisions of or made under this Act that apply to designated online services, (d) levels of availability of harmful online content on the service, or on services within the category, (e) levels of risk of exposure to harmful online content when using the service, or services within the category, (f) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it on the service, or on services within the category, (g) the rights of the provider of the service, or providers of services within the category, and (h) the rights of users of the service, or users of services within the category.
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Power to require information relevant to designation 139F. (1) The Commission may by notice in writing require the provider of a relevant online service to provide the Commission with any information relating to the service that appears to the Commission to be— (a) relevant to a decision under section 139E as to whether to designate the service as a named service, (b) relevant to a decision under section 139E as to whether to designate a category of services including the service, or (c) required for inclusion in the register under section 139J.
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(2)A provider who fails, without reasonable excuse, to comply with a notice under subsection (1) shall be guilty of a category 1 offence.
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Requirement to designate video-sharing platform services 139G. (1) The Commission shall designate as a category of services under section 139E the video-sharing platform services the provider of which is under the jurisdiction of the State.
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(2)The Commission shall designate as a named service under section 139E any relevant online service that appears to the Commission to be a video-sharing platform service the provider of which is under the jurisdiction of the State.
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(3)Where the Commission has reason to believe that a relevant online service may be a video-sharing platform service the provider of which is under the jurisdiction of the State, the Commission shall issue a notice under section 139F requiring the provision of any information that appears to the Commission to be relevant for the purpose of complying with subsection (2).
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(4)For the purposes of subsections (2) and (3) the Commission shall have regard to any guidelines issued by the European Commission in respect of the practical application of the essential functionality criterion in the definition of a video-sharing platform service in Article 1(1)(aa) of the Directive.
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Procedure for designation of online services 139H. (1) Before designating a service under this Chapter, the Commission shall consult— (a) where the designation is of a named service, the provider of the service, (b) where the designation is of a category of services— (i) an organisation representative of providers of services falling within the category, if there is such an organisation, and (ii) the providers of those services, so far as the Commission is able to consult them, (c) any advisory committee the Commission has established for that purpose under section 19, and (d) any other person the Commission considers appropriate.
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(2)Subsections (1)(a) and (1)(b)(i) do not apply in the case of a provider or organisation if, after taking reasonable steps to consult it, the Commission is unable to do so.
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(3)A designation under this Chapter takes effect— (a) in the case of a named service, on the Commission giving the provider of the service notice in writing of the designation, and (b) in the case of a category of services, at the end of the period of 28 days after the date on which notice of the designation is published by the Commission on a website maintained by it.
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Revocation of designation 139I. (1) The Commission may, subject to section 139G(1) and (2), at any time revoke a designation under section 139E.
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(2)Sections 139E(3), 139F and 139H apply in relation to revocation of a designation of a named service or a category of services as they apply in relation to a designation.
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Register of designated online services 139J. (1) The Commission shall maintain and make available to the public a register of— (a) the services for the time being designated under this Chapter as named services, and (b) the categories of services for the time being designated under this Chapter.
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(2)The register shall state— (a) for each named service— (i) the provider of the service, (ii) the address of the provider and any other information the Commission considers appropriate about how the provider may be contacted by members of the public, and (iii) any designated category of services that the named service appears to the Commission to fall within, and (b) for each named service and each category of services, any online safety code under Chapter 3 that applies to that service or to the services within that category.
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Chapter 3
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Online safety codes Online safety codes 139K. (1) The Commission may make codes (‘online safety codes’), to be applied to designated online services in accordance with section 139L.
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(2)An online safety code may make provision with a view to ensuring— (a) that service providers take appropriate measures to minimise the availability of harmful online content and risks arising from the availability of and exposure to such content, (b) that service providers take any other measures that are appropriate to protect users of their services from harmful online content, (c) that service providers take any other measures that are appropriate to provide the protections set out in Article 28b(1)(a), (b) and (c) of the Directive, and (d) that service providers take any measures in relation to commercial communications on their services that are appropriate to protect the interests of users of their services, and in particular the interests of children.
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(3)In the case of video-sharing platform services, the Commission shall exercise its powers under this section with a view to ensuring (without prejudice to any other exercise of those powers in relation to video-sharing platform services) that service providers— (a) take appropriate measures to provide the protections referred to in subsection (2)(c), including appropriate measures referred to in Article 28b(3) of the Directive, (b) comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are marketed, sold or arranged by them, and (c) take appropriate measures to comply with the requirements set out in Article 9(1) of the Directive with respect to audiovisual commercial communications that are not marketed, sold or arranged by them, taking into account the limited control they exercise over those communications.
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(4)Without prejudice to subsection (2) an online safety code may provide for: (a) standards that services must meet, practices that service providers must follow, or measures that service providers must take; (b) in particular, standards, practices or measures relating to the moderation of content or to how content is delivered on services; (c) the assessment by service providers of the availability of harmful online content on services, of the risk of it being available, and of the risk posed to users by harmful online content; (d) the making of reports by service providers to the Commission; (e) the handling by service providers of communications from users raising complaints or other matters.
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(5)Without prejudice to subsection (2) or (4), an online safety code may prohibit or restrict, in accordance with law, the inclusion in programmes or user-generated content of commercial communications relating to foods or beverages considered by the Commission to be the subject of public concern in respect of the general public health interests of children, in particular infant formula, follow-on formula or foods or beverages which contain fat, trans-fatty acids, salts or sugars.
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(6)Without prejudice to subsection (4), the Commission shall make an online safety code, to be applied in accordance with section 139L to such designated online services as the Commission considers appropriate, requiring the service provider to report to the Commission at intervals, specified in the code, of not more than 3 months on the provider’s handling of communications from users raising complaints or other matters.
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(7)In this section, ‘service provider’ means the provider of a designated online service.
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Application of online safety codes 139L. (1) An online safety code applies to a designated online service if— (a) the Commission has determined that the code is to apply to the service, or to a designated category of services that includes the service, (b) the Commission has given notice of the determination, and the notice has taken effect, in accordance with subsection (2), and (c) the determination has not been revoked.
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(2)Notice under subsection (1)(b)— (a) in the case of a service designated as a named service, must be given to the provider of the service in writing, and takes effect when the notice is given to the provider, and (b) in the case of a designated category of services, must be given by publication of notice of the determination on a website maintained by the Commission, and takes effect at the end of the period of 28 days after the date on which the notice is published on the website.
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(3)Before making or revoking a determination under subsection (1) in relation to a named service or a category of services, the Commission shall have regard in particular to— (a) the nature and the scale of the service, or of services within the category, (b) levels of availability of harmful online content on the service, or on services within the category, (c) levels of risk of exposure to harmful online content when using the service, or services within the category, (d) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it on the service, or on services within the category, (e) the rights of the provider of the service, or providers of services within the category, and (f) the rights of users of the service, or users of services within the category.
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(4)Before making or revoking a determination under subsection (1), the Commission shall consult— (a) where the designation is of a named service, the provider of the service, (b) where the designation is of a category of services— (i) an organisation representative of providers of services falling within the category, if there is such an organisation, and (ii) the providers of those services, so far as the Commission is able to consult them, (c) any advisory committee the Commission has established for that purpose under section 19, and (d) any other person the Commission considers appropriate.
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(5)An online safety code applying to an interpersonal communications service or a private online storage service applies to that service only in so far as it relates to content that falls within one of the offence‑specific categories of online content defined in section 139A(2).
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(6)In this section— ‘interpersonal communications service’ means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information between a finite number of persons by means of electronic communications networks, where the persons initiating or participating in the communication determine its recipients, but it does not include services which enable interpersonal and interactive communication only as a minor ancillary feature that is intrinsically linked to another service; ‘private online storage service’ means any service providing online storage, other than— (a) local or temporary storage, or (b) storage provided for the purpose of enabling the provision of another service, or as a minor ancillary feature intrinsically linked to another service; ‘temporary storage’ means the automatic, intermediate and temporary storage of information for the sole purpose of making more efficient onward transmission of that information.
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Online safety codes: matters to be considered 139M. When preparing an online safety code the Commission shall have regard in particular to— (a) the desirability of services having transparent decision-making processes in relation to content delivery and content moderation, (b) the impact of automated decision-making on those processes, (c) the need for any provision to be proportionate having regard to the nature and the scale of the services to which a code applies, (d) levels of availability of harmful online content on designated online services, (e) levels of risk of exposure to harmful online content when using designated online services, (f) levels of risk of harm, and in particular harm to children, from the availability of harmful online content or exposure to it, (g) the rights of providers of designated online services and of users of those services, and (h) the e-Commerce compliance strategy prepared under section 139ZF.
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Online safety codes: procedure 139N. (1) Before making an online safety code, the Commission— (a) shall consult— (i) any advisory committee it has established for that purpose under section 19, and (ii) any other person the Commission thinks appropriate, and (b) may consult a public health authority about any provision of an online safety code referred to in section 139K(2)(d) which it proposes to make.
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(2)As soon as practicable after making an online safety code, the Commission shall give a copy of the code to the Minister.
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(3)As soon as practicable after receiving a copy of an online safety code under subsection (2), the Minister shall lay copies of the code before each House of the Oireachtas.
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(4)The Commission may at any time amend or revoke an online safety code, or any provision of an online safety code, and subsections (1) to (3) apply to an amendment or revocation of an online safety code as they apply to an online safety code.
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(5)The Commission shall from time to time review the operation of any online safety code it makes.
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(6)If the Minister makes a request in writing to the Commission to review the operation of an online safety code, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.
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(7)The Commission shall publish a report given to the Minister under subsection (6) on a website maintained by the Commission.
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Compliance with online safety codes: information notices 139O. (1) The Commission may by notice in writing require the provider of a designated online service to provide the Commission with information relating to the provider’s compliance with an online safety code over any period, and may require such information to be provided periodically for a succession of periods.
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(2)A notice must— (a) identify the information to be provided and the period or periods it must relate to, and (b) state when the information is to be provided.
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(3)A notice may not require information to be provided before the end of the period of 7 days beginning on the date on which the notice is received by the provider.
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(4)The Commission may at any time by notice in writing extend the time within which information is to be provided.
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(5)If within the period referred to in subsection (3) the provider requests the Commission to make an extension under subsection (4), the period beginning with the date on which the Commission receives the request and ending on the date notice of the Commission’s decision on the request is received by the provider does not count towards the time within which the information is to be provided.
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(6)The provider of a designated online service is guilty of a category 1 offence if— (a) the provider fails without reasonable excuse to comply with a notice under subsection (1), or (b) in purported compliance with a notice under subsection (1), the provider provides false information, knowing that it is false or being reckless as to whether it is false.
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(7)If the Commission is notified by a nominated body of a matter that appears to the Commission to be relevant to a provider’s compliance with an online safety code, the Commission shall consider that matter for the purpose of deciding whether to exercise its functions under this section.
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Audit of complaints and complaint handling 139P. (1) The Commission may appoint a person to carry out an audit under this section, and may by notice in writing require the provider of a designated online service to co-operate with any person appointed.
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(2)A notice under subsection (1) may relate to audits to be undertaken periodically, at intervals specified in the notice.
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(3)The purpose of an audit under this section is— (a) to enable the Commission to assess compliance by the provider with provisions of an online safety code that relate to the handling of communications by which users raise complaints or other matters relating to designated online services with the providers of those services, and (b) to provide the Commission with information to identify any trends in complaints or other matters raised by such communications that may be relevant to the Commission’s functions under this Part.
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(4)A person appointed to carry out an audit under this section— (a) must be independent of the provider, and (b) must not be a Commissioner, or a member of the staff of the Commission.
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(5)A notice under this section must— (a) identify the person appointed to carry out the audit, (b) identify the provisions of the online safety code that the audit is to assess compliance with, (c) state when the audit is to commence, (d) specify the co-operation that may be requested by the person appointed, and (e) require the provider to provide that co-operation, subject to reasonable notice being given by the person appointed.
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(6)The co-operation that may be specified under subsection (5)(d) may include the taking, on reasonable notice from the person carrying out the audit, of steps specified by that person that are reasonably required to assist the carrying out of an audit under this section.
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(7)A person who carries out an audit under this section shall provide the Commission with a report on the audit, setting out any information relevant to an assessment in accordance with subsection (3)(a), and any information relevant for the purposes of subsection (3)(b).
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(8)The Commission shall provide a copy of the report— (a) to the provider concerned, and (b) to the Minister, and shall give the provider an opportunity to make representations in writing to the Commission on the report within such period as the Commission specifies.
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(9)After considering any representations made under subsection (8), the Commission shall publish the report on a website maintained by it, with any redactions the Commission considers necessary on grounds of the personal, confidential or commercially sensitive nature of any part of the report.
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(10)If the Commission is notified by a nominated body of a matter that appears to the Commission to be relevant to compliance by a provider with a provision of the kind mentioned in subsection (3)(a), the Commission shall consider that matter for the purpose of deciding whether to exercise its functions under this section.
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(11)A provider who fails without reasonable excuse to comply with a notice under subsection (1) shall be guilty of a category 1 offence.
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Enforcement of online safety codes 139Q. A failure by a provider of a designated online service to comply with an online safety code that applies to the service shall be a contravention for the purposes of Part 8B.
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Chapter 4
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Complaints to Commission about harmful online content Complaints to Commission about harmful online content 139R. Where a scheme under section 139V provides for the making of a complaint to the Commission on the grounds that harmful online content is available on a designated online service, the Commission may deal with the complaint in accordance with this Chapter and the provisions of the scheme.
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Complaints which may be considered by Commission 139S. (1) Subject to subsection (2), the Commission may not consider a complaint under this Chapter unless it is satisfied that the following conditions are met: (a) the complainant has made a complaint to the provider of the designated online service concerned about the availability of the content on the service; (b) a period of more than 2 days has elapsed since the complainant made the complaint to the provider; (c) where the provider operates a process in accordance with an online safety code for handling such a complaint, the complainant has taken reasonable steps in that period to have the complaint resolved through that process.
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(2)Where the Commission is not satisfied that the conditions in subsection (1) are met, it may consider a complaint under this Chapter if it considers it appropriate to do so having regard to the principles referred to in section 139U.
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(3)Where a complaint relates to content which falls within one of the offence-specific categories of harmful online content defined in section 139A(2), the Commission may consider the complaint under this Chapter only if— (a) the Commission has brought the complaint to the attention of the Garda Síochána, or any other body the Commission considers appropriate, (b) the Commission has informed the complainant and the provider of the designated online service that it has done so, and (c) where the complaint was brought to the attention of the Garda Síochána, the Garda Síochána has informed the Commission that they do not intend to take any action, or any further action, in relation to the availability of the content on the service concerned.
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Resolution of complaints 139T. (1) The Commission may take any of the following actions for the purpose of resolving a complaint under this Chapter: (a) referring the complaint to the provider concerned with such advice, guidance or support as the Commission considers appropriate; (b) bringing the complaint to the attention of another body, where the Commission considers the complaint relates to the activities of that body; (c) giving the provider a notice under section 139ZZD(1); (d) dismissing the complaint where the Commission concludes that the content is not harmful online content, or is no longer available on the designated online service; (e) dismissing the complaint where the Commission finds that the complaint is frivolous or vexatious; (f) taking any other action provided for in a scheme under section 139V.
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(2)Where the Commission concludes its consideration of a complaint under this Chapter but does not consider any action within subsection (1) to be appropriate, it shall provide such advice, guidance or support to the complainant as it considers appropriate.
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Principles for resolution of complaints 139U. In dealing with complaints under this Chapter, the Commission shall have regard to— (a) the rights of— (i) the complainant, (ii) the person who uploaded the content to the designated online service, (iii) the provider of the designated online service, (iv) the users of the designated online service, and (v) any person to whom the content relates or at whom it is directed, (b) the interests of any child concerned as complainant, as the person who uploaded the content to the designated online service, or as a person to whom the content relates or at whom it is directed, (c) the levels of risk of harm, and in particular harm to children, from the availability of the content or exposure to it, and (d) the desirability of resolving the complaint efficiently.
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Complaint scheme: content 139V. (1) Subject to this Chapter the Commission may make a scheme providing for the making and resolution of complaints referred to in section 139R.
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(2)The Commission may make a scheme relating to complaints about the availability of a type of harmful online content on designated online services only if there is an online safety code that— (a) applies to the designated online services concerned, and (b) relates to the handling, by those providers, of communications from users raising complaints about harmful online content of that type.
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(3)A scheme shall provide, in particular, for— (a) the content of a complaint, (b) the procedures by which a complaint may be made, (c) the procedures the Commission shall follow in considering and resolving complaints, (d) the making of representations in relation to the complaint by the person who uploaded the content that the complaint is about to the designated online service, (e) the requirements the Commission may impose on providers of designated online services for the purpose of resolving complaints, and (f) the procedures by which the Commission shall inform the complainant of the Commission’s resolution of the complaint.
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(4)A complaint shall contain, in particular— (a) a description of the content that the complaint is about, (b) a description of the category of harmful online content into which the complainant considers the content falls, and the reasons for that consideration, (c) a description of the location of the content on the designated online service, and (d) evidence that the conditions in section 139S(1) are met.
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Complaint scheme: procedure 139W. (1) Before making a scheme under section 139V, the Commission shall consult— (a) any advisory committee it has established for that purpose under section 19, and (b) any other person the Commission thinks appropriate.
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(2)The Commission shall give the Minister a copy of any scheme made under section 139V as soon as practicable after it is made.
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(3)The Commission may amend or replace a scheme made under section 139V, and subsections (1) and (2) apply to the amendment of a scheme as they apply to the making of a scheme.
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(4)A scheme made under section 139V, and any amendment of it, shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made.
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Implementation of schemes 139X. (1) The Commission shall prepare a plan describing the period within which, and the manner in which, it proposes to make schemes under section 139V such that, in any case where there is an online safety code that relates to the handling, by providers of designated online services, of communications from users raising complaints about harmful online content of any type, the Commission is able to deal with complaints about the availability of that type of harmful online content on any designated online service to which the code is applied under section 139L.
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(2)The Commission’s proposals in the plan prepared under subsection (1) shall prioritise the making of schemes under section 139V relating to complaints about harmful online content relating to or directed at children.
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(3)A plan prepared under subsection (1) shall be given to the Minister and published on a website maintained by or on behalf of the Commission as soon as practicable after it is prepared.
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Review of operation of scheme 139Y. (1) The Commission shall review the operation of this Chapter at the end of the period of 5 years after the date of its coming into operation.
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(2)Without prejudice to subsection (1), the Commission shall review the operation of a scheme under section 139V where the Minister requests the Commission in writing to do so.
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(3)The Commission shall give a report of a review to the Minister as soon as practicable after completing the review.
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(4)The Commission shall publish the following annually on a website maintained by it: (a) the number of complaints it has received in the previous year under a scheme and how those complaints were resolved; (b) the categories of harmful online content to which the complaints related; (c) such case studies of complaints as it considers appropriate.
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Chapter 5
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Online safety guidance materials and advisory notices Guidance materials and advisory notices 139Z. (1) The Commission may issue guidance materials for providers of relevant online services— (a) on identifying harmful online content, and in particular on the application of subsection (4) of section 139A, (b) on any other matter relating to the operation of this Part or for which provision may be made by an online safety code, and (c) otherwise for the protection of minors and the general public from harmful online content and age-inappropriate online content.
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(2)Before issuing guidance materials under subsection (1), the Commission shall consult— (a) any advisory committee it has established for that purpose under section 19, and (b) any other person the Commission thinks appropriate.
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(3)Where the Commission considers there is an urgent need to bring to the attention of a provider or providers of relevant online services any matter on which guidance materials may be issued under this section, the Commission may issue an online safety advisory notice to the provider or providers on the matter.
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(4)Before issuing an advisory notice under subsection (3), or as soon after as is practicable, the Commission shall consult— (a) any advisory committee it has established for that purpose under section 19, and (b) any other person the Commission thinks appropriate.
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Guidance materials and advisory notices: matters to be considered 139ZA. In preparing guidance materials or advisory notices under section 139Z, the Commission shall have regard in particular to— (a) Article 28b of the Directive, (b) the desirability of services having transparent decision-making processes in relation to content delivery and content moderation, (c) the impact of automated decision-making on those processes, (d) the need for any provision to be proportionate having regard to the nature and the scale of the services concerned, (e) levels of availability of any online content, and of age‑inappropriate online content, on relevant online services, (f) levels of risk of exposure to harmful online content, or of exposure of children to age-inappropriate online content, when using relevant online services, (g) levels of risk of harm, and in particular harm to children, from the availability of such content or exposure to it, (h) the rights of providers of relevant online services and of users of those services, and (i) the e-Commerce compliance strategy prepared under section 139ZF.
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Guidance materials and advisory notices: procedure 139ZB. (1) This section applies to any guidance materials or advisory notices issued by the Commission under section 139Z.
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(2)The Commission shall— (a) publish any guidance materials or advisory notices in whatever way it thinks appropriate, and (b) take any other steps it considers appropriate to bring guidance materials or advisory notices to the attention of providers of services to which they are relevant.
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(3)As soon as practicable after issuing guidance materials or an advisory notice, the Commission shall give a copy to the Minister.
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(4)If the Minister makes a request in writing to the Commission to review guidance materials or an advisory notice, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.
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(5)The Commission may at any time withdraw guidance materials or an advisory notice.
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Chapter 6
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Ancillary matters Scheme for notifications by nominated bodies 139ZC. (1) The Commission shall make a scheme under which bodies are nominated by it for the purpose of notifying the Commission of matters relevant to its functions under this Part.
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(2)Where a nominated body notifies the Commission in accordance with a scheme, the Commission shall inform the nominated body of any action taken by the Commission as a result of the notification.
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(3)The matters that may be notified to the Commission under a scheme shall include, but need not be limited to, the following: (a) concerns arising from the manner in which a designated online service purports to comply with the online safety codes that apply to it; (b) concerns relating to the availability of harmful online content on a designated online service or a relevant online service; (c) concerns relating to the availability of age-inappropriate online content on a designated online service or a relevant online service; (d) measures taken by the provider of a designated online service, in purported compliance with an online safety code, which the nominated body considers excessive having regard to users’ freedom of expression or other rights, or for any other reason.
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(4)A scheme shall in particular provide for the following: (a) the procedure for applying for nomination, and the nomination process; (b) the criteria for nomination; (c) revocation of a nomination; (d) matters of which nominated bodies may notify the Commission; (e) the form and content of a notification; (f) the process by which notification is to be given by a nominated body and acknowledged by the Commission; (g) the process by which the Commission is to inform a nominated body of any action taken by the Commission as a result of a notification.
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(5)As soon as practicable after making a scheme under this section, the Commission shall give a copy to the Minister.
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(6)If the Minister makes a request in writing to the Commission to review a scheme under this section, the Commission shall carry out the review and give the Minister a report on the review in writing within a reasonable time.
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(7)The Commission may at any time amend or replace a scheme under this section.
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(8)Subsection (5) applies to the amendment or replacement of a scheme as it applies to the making of a scheme.
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(9)A scheme and any amendment of a scheme under this section shall be laid by the Commission before each House of the Oireachtas as soon as may be after it is made.
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(10)In this section, ‘scheme’ means a scheme made under this section.
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(11)In this section and sections 139O and 139P, ‘nominated body’ means a body nominated by the Commission under a scheme.
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Duty of Commission to encourage use of mediation 139ZD. The Commission shall take whatever steps it considers appropriate to encourage the use by users and providers of mediation by an independent mediator to resolve any dispute arising from users’ complaints about a provider taking or not taking any action— (a) in response to an online safety code, or (b) in response to guidance materials or an advisory notice issued under section 139Z.
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Voluntary arrangements with providers in third countries 139ZE. (1) This section applies if the Commission enters into a voluntary arrangement, within the meaning assigned to it by subsection (2), with the provider of a service, where— (a) the provider is not under the jurisdiction of the State or another Member State, but (b) the service would be a relevant online service if the provider were under the jurisdiction of the State.
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(2)In this section, a ‘voluntary arrangement’ means an arrangement under which the provider agrees, for the period during which the arrangement is in force— (a) that the provider will comply with any online safety code, and any guidance materials issued under section 139Z, that may be specified in the arrangement, to the extent specified in the arrangement, (b) that the provider will comply with any request made by the Commission under subsection (5), and (c) that the Commission may publish the information it is required to publish in accordance with subsections (4) and (6).
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(3)The Commission shall notify the Minister of any voluntary arrangement it enters into.
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(4)The Commission shall publish, on a website maintained by it, the following details of any voluntary arrangement it enters into with a provider: (a) the name of the provider and any other information necessary to identify the provider; (b) the matters specified in accordance with subsection (2)(a).
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(5)The Commission— (a) may request information from the provider regarding its compliance with any online safety code or guidance materials, to the extent that it has agreed to comply with them, and (b) may request the provider to provide such information on a periodic basis.
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(6)If it appears to the Commission that there has been a failure by a provider to comply with an online safety code, guidance materials, or a request under subsection (5), the Commission may publish, on a website maintained by it, a notice of the failure, and information about the nature of the failure.
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(7)The Commission shall keep any voluntary arrangement under review.
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(8)The Commission or the provider may at any time end a voluntary arrangement by notice in writing to the other. e-Commerce compliance strategy 139ZF. (1) The Commission shall prepare, and may revise, an e-Commerce compliance strategy setting out its approach to ensuring that— (a) no requirements that are inconsistent with the limitations placed on the liability of intermediary service providers by regulations 16 to 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 ( S. I. No. 68 of 2003 ), and (b) no general obligation on providers, when providing the services covered by regulations 16 to 18 of those Regulations, to monitor the information which they transmit or store, and no general obligation actively to seek facts or circumstances indicating illegal activity, contrary to Article 15 of the E-Commerce Directive, are imposed, by virtue of online safety codes or online safety guidance materials or advisory notices.
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(2)Before preparing an e-Commerce compliance strategy the Commission shall consult— (a) any advisory committee it has established for that purpose under section 19, and (b) any other person the Commission thinks appropriate.
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(3)The Commission shall publish an e-Commerce compliance strategy prepared or revised under this section on a website maintained by it.”.
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Harmful online content: offence-specific categories 46. The Principal Act is amended by the insertion of the following Schedule after Schedule 2: “SCHEDULE 3 Section 139A Harmful Online Content: Offence-Specific Categories Offences against the State Act 1939 1. Online content by which a person publishes or broadcasts information about an application under section 30
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(4)of the Offences against the State Act 1939 contrary to subsection (4BA)(d) of that section (application for further detention of a person arrested for certain offences).
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Criminal Law (Rape) Act 1981 2. Online content by which a person publishes or broadcasts matter likely to lead members of the public to identify a person as the complainant in relation to a charge of a sexual assault offence, contrary to section 7
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(1)of the Criminal Law (Rape) Act 1981 .
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3.Online content by which a person publishes or broadcasts matter likely to lead members of the public to identify a person as the person charged with a rape offence, contrary to section 8
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(1)of the Criminal Law (Rape) Act 1981 .
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Prohibition of Incitement to Hatred Act 1989 4. Online content by which a person publishes or distributes written material, or a recording of visual images or sounds, contrary to section 2
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(1)of the Prohibition of Incitement to Hatred Act 1989 (material, images or sounds which are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred).
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5.Online content by which a person broadcasts visual images or sounds, contrary to section 3
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(1)of the Prohibition of Incitement to Hatred Act 1989 (threatening, abusive or insulting images or sounds whose broadcast is intended or, having regard to all the circumstances, is likely to stir up hatred).
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Criminal Justice Act 1993 6. Online content by which a person publishes or broadcasts information relating to, or to part of, evidence given under section 5
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(3)of the Criminal Justice Act 1993 , contrary to an order under subsection (5)(a) of that section (sentencing: evidence of a person in respect of whom an offence is committed).
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Criminal Law (Suicide) Act 1993 7. Online content by which a person counsels the suicide of another, contrary to section 2
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(2)of the Criminal Law (Suicide) Act 1993 .
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Criminal Justice (Drug Trafficking) Act 1996 8. Online content by which a person publishes or broadcasts information about an application under section 2
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(2)of the Criminal Justice (Drug Trafficking) Act 1996 contrary to subsection (3A)(d) of that section (application for detention of a person arrested for a drug trafficking offence).
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Bail Act 1997 9. Online content by which a person publishes or broadcasts information relating to the criminal record of a person applying for bail, contrary to section 4
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(3)of the Bail Act 1997 .
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10.Online content by which a person publishes or broadcasts information relating to, or to part of, evidence given under section 9A(1) of the Bail Act 1997 contrary to an order under subsection (3) of that section (evidence, at application for bail, from a person in respect of whom an offence is alleged to have been committed).
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Non-Fatal Offences against the Person Act 1997 11. Online content by which a person applies force to the body of another, or causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to such force, contrary to section 2 of the Non-Fatal Offences against the Person Act 1997 .
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12.Online content by which a person makes a threat, contrary to section 5
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(1)of the Non-Fatal Offences against the Person Act 1997 (threat to kill or cause serious harm to a person).
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13.Online content by which a person harasses another, contrary to section 10
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(1)of the Non-Fatal Offences against the Person Act 1997 (harassment by persistently following, watching, pestering, besetting or communicating with or about another person).
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Child Trafficking and Pornography Act 1998 14. Online content by which a person distributes, transmits, disseminates or publishes child pornography, contrary to section 5
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(1)(b) of the Child Trafficking and Pornography Act 1998 .
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15.Online content by which a person publishes, distributes, transmits or disseminates an advertisement, contrary to section 5
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(1)(e) of the Child Trafficking and Pornography Act 1998 (advertisement of sale etc. of child pornography).
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Children Act 2001 16. Online content by which a person publishes or includes in a broadcast a report to which section 51
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(1)of the Children Act 2001 applies (report in relation to admission of a child to the Programme etc. or revealing information likely to lead to identification of the child).
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17.Online content by which a person publishes or includes in a broadcast any such report or picture as is referred to in section 93
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(1)of the Children Act 2001 , except so far as the requirements of that section have been dispensed with under subsection (2) of that section (proceedings before a court concerning a child: particulars likely to lead to identification etc.).
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18.Online content by which a person encourages unlawful activity involving a child, contrary to section 249 of the Children Act 2001 (person with custody, charge or care of a child encouraging sexual offences on the child etc.).
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19.Online content by which a person publishes or includes in a broadcast a report or picture to which section 252
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(1)of the Children Act 2001 applies, except so far as the requirements of subsection (1) of that section have been dispensed with under subsection (2) of that section (proceedings for an offence against a child or where a child is a witness: report or picture likely to lead to identification of the child etc.).
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Criminal Justice (Terrorist Offences) Act 2005 20. Online content by which a person engages in public provocation to commit a terrorist offence, contrary to section 6
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(1)(a)(i) of the Criminal Justice (Terrorist Offences) Act 2005 (where a ‘terrorist‑linked activity’ includes public provocation to commit a terrorist offence, as defined by section 4A of that Act).
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21.Online content by which a person makes a threat to engage in a terrorist activity, contrary to section 6
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(1)(a)(iii) of the Criminal Justice (Terrorist Offences) Act 2005 .
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Criminal Law (Insanity) Act 2006 22. Online content by which a person publishes, contrary to section 4
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(9)of the Criminal Law (Insanity) Act 2006 , a report of evidence adduced under subsection (8) of that section as to whether an accused person did the act alleged, or of the decision of the court under that subsection not to order the accused to be discharged.
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Criminal Justice Act 2006 23. Online content by which a person publishes any matter relating to criminal proceedings which would identify a person as having a particular medical condition, contrary to an order under section 181 of the Criminal Justice Act 2006 .
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Criminal Justice Act 2007 24. Online content by which a person publishes or broadcasts information about an application under section 50 of the Criminal Justice Act 2007 contrary to subsection (4A)(d) of that section (application for further detention for investigation of certain serious offences).
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Criminal Law (Human Trafficking) Act 2008 25. Online content by which a person publishes or broadcasts, contrary to section 11
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(1)of the Criminal Law (Human Trafficking) Act 2008 — (a) a photograph of, or that includes a depiction of, the alleged victim of an offence with which a person is charged under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Child Trafficking and Pornography Act 1998 , (b) any other representation of the physical likeness, or any representation that includes a depiction of the physical likeness, of the alleged victim of such an offence, or (c) any other information in relation to such an offence, that is likely to enable the identification of the alleged victim of the offence.
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Criminal Procedure Act 2010 26. Online content by which a person publishes or broadcasts, contrary to an order under section 12
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(3)of the Criminal Procedure Act 2010 — (a) evidence given or referred to at a hearing of an application for a re-trial order, or (b) matter identifying or having the effect of identifying a person who is the subject of an application for a re-trial order, or any other person connected with the re-trial for which an order is sought under section 8 or 9 of that Act.
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27.Online content by which a person publishes or broadcasts, contrary to an order under section 25
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(3)of the Criminal Procedure Act 2010 — (a) evidence given or referred to during a proceeding under section 23 of that Act, or (b) matter identifying or having the effect of identifying a person who is the subject of an appeal under section 23 of that Act, or any other person connected with a re-trial for which an order is sought under that section.
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Criminal Justice (Female Genital Mutilation) Act 2012 28. Online content by which a person publishes matter contrary to section 9
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(1)of the Criminal Justice (Female Genital Mutilation) Act 2012 (matter likely to lead to identification of a woman or girl as a person in relation to whom an offence is alleged to have been committed).
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29.Online content by which a person publishes matter contrary to section 10
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(1)of the Criminal Justice (Female Genital Mutilation) Act 2012 (matter likely to lead to identification of a person charged with an offence).
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Animal Health and Welfare Act 2013 30. Online content by which a person— (a) publicises or promotes a proposed animal fight or performance, (b) provides information about an animal fight or performance, or (c) supplies, displays, shows or publishes anything by which an animal fight or performance is recorded, contrary to section 15 of the Animal Health and Welfare Act 2013 .
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International Protection Act 2015 31. Online content by which a person publishes or broadcasts information, contrary to section 26
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(2)of the International Protection Act 2015 (publication or broadcast of information likely to lead to identification of an applicant for protection).
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Criminal Law (Sexual Offences) Act 2017 32. Online content by which a person communicates with another person for the purpose of facilitating the sexual exploitation of a child, contrary to section 8
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(1)of the Criminal Law (Sexual Offences) Act 2017 .
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33.Online content by which a person sends sexually explicit material to a child, contrary to section 8
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(2)of the Criminal Law (Sexual Offences) Act 2017 .
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34.Online content by which a person publishes matter contrary to section 30
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(1)of the Criminal Law (Sexual Offences) Act 2017 (matter likely to lead to identification of a person as a person charged with an offence under the Punishment of Incest Act 1908 or as a person in relation to whom an offence is alleged to have been committed).
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35.Online content by which a person exposes his or her genitals intending to cause fear, distress or alarm to another person contrary to section 45
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(1)of the Criminal Law (Sexual Offences) Act 2017 .
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36.Online content by which a person intentionally engages in offensive conduct of a sexual nature contrary to section 45
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(3)of the Criminal Law (Sexual Offences) Act 2017 .
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Domestic Violence Act 2018 37. Online content by which a person publishes or broadcasts information, or a photograph, depiction, or other representation, contrary to section 36
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(1)of the Domestic Violence Act 2018 (publication or broadcast of material likely to lead to the identification of persons concerned in proceedings).
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Harassment, Harmful Communications and Related Offences Act 2020 38. Online content by which a person distributes or publishes or threatens to distribute or publish an intimate image, contrary to section 2
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(1)of the Harassment, Harmful Communications and Related Offences Act 2020 (distribution etc. of image without consent and with intent to cause harm etc.).
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39.Online content by which a person distributes or publishes an intimate image, contrary to section 3
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(1)of the Harassment, Harmful Communications and Related Offences Act 2020 (distribution etc. of image without consent and so as seriously to interfere with peace and privacy or to cause alarm, distress or harm).
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40.Online content by which a person— (a) distributes or publishes a threatening or grossly offensive communication about another person, or (b) sends a threatening or grossly offensive communication to another person, contrary to section 4
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(1)of the Harassment, Harmful Communications and Related Offences Act 2020 (distribution etc. of communication with intent to cause harm).
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41.Online content by which a person publishes or broadcasts information, or a photograph or other representation, likely to enable the identification of the alleged victim of an offence under section 2 or 3 of the Harassment, Harmful Communications and Related Offences Act 2020 , contrary to section 5(1) of that Act.
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Criminal Procedure Act 2021 42. Online content by which a person publishes or broadcasts information about a preliminary trial hearing, or an appeal under section 7 of the Criminal Procedure Act 2021 , contrary to section 10(1) of that Act.”.
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PART 12
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Investigations and sanctions Investigations and sanctions 47. The Principal Act is amended by the insertion of the following Part before Part 9: “PART 8B Investigations and sanctions
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Chapter 1
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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.
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Chapter 2
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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.
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(2)The Commission shall provide an authorised officer appointed under subsection (1) with a certificate of his or her appointment.
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(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.
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(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.
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(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.
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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.
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(2)The Commission may authorise any Commissioner or member of its staff for the purposes of subsection (1).
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(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.
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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.
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(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.
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(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.
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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;
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(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.
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(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.
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(3)An authorised officer may conduct an oral hearing if he or she considers it necessary for the purposes of the investigation.
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(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).
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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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.
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(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.
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(3)A warrant issued under this section shall be valid for 28 days from its date of issue.
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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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(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.
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(10)A person who without reasonable excuse contravenes subsection (9) shall be guilty of a category 1 offence.
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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.
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(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.
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(3)The Commission shall publish rules made under subsection (1) on a website maintained by it.
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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.
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(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.
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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.
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(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.
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Chapter 3
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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.
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(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.
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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.
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(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.
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(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.
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(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.
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(5)As soon as practicable after making a request under subsection (4)(b), the Commission shall give the provider a copy of the request.
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(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.
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(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.
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(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.
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(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.