(b) that the suspected contravention gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention could be made under section 62 , and (c) that measures could be taken by the inquiry subject that would avoid or reduce that risk, the Commission may, by notice in writing to the inquiry subject, require the inquiry subject to take those measures by a date stated in the notice.
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(2)A notice under subsection (1) shall— (a) state the suspected contravention, (b) state the grounds on which it appears to the Commission that there is prima facie evidence that the suspected contravention has occurred and is continuing, and (c) state the grounds on which it appears to the Commission that the suspected contravention gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention could be made under section 62 .
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(3)A notice under subsection (1) ceases to have effect on the earliest of the following to occur: (a) the taking of a decision under section 62 in relation to the suspected contravention; (b) the discontinuance of the investigation referred to in subsection (1); (c) the revocation of the notice by the Commission.
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(4)The functions of the Commission under this section (except this subsection) shall be exercised by a division of the Commission consisting of such uneven number of members of the Commission, not being less than 3, as the Commission may determine.
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(5)If the person who gave the direction under section 49 for the investigation referred to in subsection (1) to be carried out is a member of the Commission, the division exercising functions under this section shall not include that member.
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(6)A person who without reasonable excuse fails to comply with a notice under subsection (1) shall be guilty of a category 1 offence.
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(7)Where an offence has been committed under subsection (6) by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either a director, manager, secretary or other officer of the body corporate, or a person purporting to act in such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the offence committed by the body corporate.
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(8)Where the affairs of a body corporate are managed by its members, subsection (7) applies in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
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(9)Without prejudice to subsection (6), a person who fails to comply with a notice under subsection (1) may be liable to an administrative financial sanction in accordance with this Part.
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Report of authorised officer 55. (1) As soon as is practicable after the completion of an investigation pursuant to a direction under section 49
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(1), an 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) any document, information or content obtained in the course of the investigation, (c) any statement or admission made by any person in the course of the investigation, (d) any submissions made by any person for the purposes of the investigation, (e) where the investigation under section 49
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(1)is part of a joint investigation under Article 60 led by Coimisiún na Meán, anything of a similar nature to what is referred to in paragraphs (b) to (d), obtained by any participating Member State Digital Services Coordinator or other Member State competent authority, and (f) any views communicated by the European Commission under Article 59(3).
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(3)The authorised officer shall, as soon as is practicable after preparing the draft report, give the inquiry subject— (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 inquiry subject 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 62 in the event that the Commission is satisfied that the inquiry subject 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 and any views to which subsection (8) applies to the inquiry subject.
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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, any submissions made in accordance with a notice under subsection (3)(d), and any views to which subsection (8) applies, to the Commission.
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(8)This subsection applies, in the case of a report under this section, to— (a) any views communicated by the European Commission under Article 59(3) in relation to the matter to which the report relates, and (b) any views of Member State Digital Services Coordinators that Article 60(2) requires to be taken into account in relation to that matter.
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(9)An authorised officer may provide a copy of the final report, any submissions made in accordance with a notice under subsection (3)(d), and any views to which subsection (8) applies to such other persons as he or she considers appropriate.
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(10)A person who receives a final report or any submissions or views under subsection (9) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the report or those submissions or views to any other person.
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(11)A person who, without reasonable excuse, contravenes subsection (10) shall be guilty of a category 1 offence.
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Information about decision process following joint investigation to which Article 60 applies 56. In the case of an investigation pursuant to a direction under section 49
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(1)which is a joint investigation to which Article 60 applies, the authorised officer shall, not later than the time when he or she provides a final report in compliance with section 55
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(6), inform the inquiry subject of the effect of section 63 .
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Rules 57. (1) Subject to the provisions of this Part and the Schedule , the Commission may make rules providing for the conduct of investigations under this Chapter, the exercise of powers under section 51 , and the conduct of its proceedings under Chapters 4 and 5.
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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 and the exercise of powers under section 51 , in particular the need to address conflicts of interest which may arise in investigations or proceedings or the exercise of powers.
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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 58. (1) The Commission may make guidelines with respect to the operation of this Chapter, Chapters 4 and 5, the Schedule and any rules made under section 57 .
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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 59. (1) Subject to the provisions of this Part and the Schedule , any rules made under section 57 and any guidelines made under section 58 , an authorised officer may follow such procedures for the conduct of an investigation, or the exercise of powers under section 51 , 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 inquiry subject informed as to the progress of the investigation.
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Chapter 4
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Decision of Commission Division of Commission 60. (1) The functions of the Commission under this Chapter (except this subsection), Chapter 5 (except sections 69 , 70 and 71 ) and the Schedule shall, unless otherwise stated, be exercised by a division of the Commission consisting of such uneven number of members of the Commission, not being less than 3, as the Commission may determine.
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(2)If the person who directed that an investigation be carried out under section 49 is a member of the Commission, the division exercising functions in relation to the investigation shall not include that member.
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Action by Commission after receiving report 61. (1) After the authorised officer has complied with subsections (6) and (7) of section 55 the Commission shall, subject to subsection (2), give the inquiry subject— (a) a copy of this section, and (b) a notice in writing stating that the inquiry subject may make submissions in writing to the Commission on the final report and any views to which section 55
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(8)applies within the period of 28 days from the date the inquiry subject receives the notice or views, 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 inquiry subject may make submissions to it on the final report and any views to which section 55
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(8)applies.
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(3)The Commission shall at any time after the authorised officer has complied with subsections (6) and (7) of section 55 conduct an oral hearing in accordance with the Schedule 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 55 , 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 62 : (a) request the inquiry subject 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) or in an oral hearing under paragraph (d), 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 in accordance with the Schedule .
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(5)As soon as is practicable after making a request under subsection (4)(b), the Commission shall give the inquiry subject a copy of the request.
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(6)As soon as is practicable after receiving any information pursuant to a request under subsection (4)(b), the Commission shall give the inquiry subject— (a) a copy of the information, and (b) a notice in writing stating that the inquiry subject may make submissions in writing to the Commission on the information within the period of 20 working days from the date the inquiry subject receives the notice, or such further period as the Commission may allow.
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(7)Where, after the authorised officer has complied with subsections (6) and (7) of section 55 , the European Commission under Article 59(3) communicates its views and requests the matter to be reviewed, the Commission— (a) shall give the inquiry subject notice in writing of those views and the request, and (b) may, following the review, take any action that appears to it to be necessary to ensure compliance with the Digital Services Regulation, which may include referring the matter back to the authorised officer to reopen the investigation.
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(8)Where an investigation is reopened in accordance with subsection (7)(b), this Part applies as if references to the final report on the investigation were references to the final report on the reopened investigation, but that does not affect anything done before the reopening of the investigation.
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(9)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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(10)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 (9), shall be guilty of a category 2 offence.
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(11)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.
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(12)Without prejudice to subsections (10) and (11), a person may be liable to an administrative financial sanction in accordance with this Part if, in a case where the report referred to in subsection (1)(b) relates to a Digital Services investigation, the person— (a) fails to comply with a request for further information under subsection (4)(a) or (b), (b) 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, or (c) fails to rectify— (i) any failure on his or her part to comply with a request for further information under subsection (4)(a) or (b), or (ii) any information which he or she has given to the Commission in purported compliance with a requirement under subsection (4)(a) or (b) and which is false or misleading in a material respect.
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(13)A statement or admission made by a person pursuant to a request for further information under subsection (4)(a) or (b), shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under subsection (11), and this shall be explained to the person in ordinary language by the Commission.
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Decision by Commission 62. (1) The Commission shall decide, in respect of a person who is the subject of a report under section 55 — (a) whether or not it is satisfied on the balance of probabilities that the person has committed the contravention to which the investigation relates, and (b) if so, whether or not to impose an administrative financial sanction.
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(2)A decision under subsection (1) that a contravention has been committed, or that an administrative financial sanction shall be imposed, does not take effect unless it is confirmed on appeal under section 68 or on summary application under section 69 .
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(3)For the purposes of making a decision under subsection (1), the Commission shall consider— (a) the final report provided under subsection (7) of section 55 and any submissions or views provided with the report in accordance with that subsection, (b) any evidence adduced or submissions made during an oral hearing conducted under section 61 , (c) any information provided as a result of a request under section 61
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(4), and (d) any submissions made pursuant to a notice under subsection (1) or (6) of section 61 .
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(4)In deciding under subsection (1)(b) whether or not to impose an administrative financial sanction, the Commission shall have regard to the matters referred to in paragraphs (a), (b), (c), (d), (e), (g), (h), (i), (j) and (k) of subsection (3) of section 67 .
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Decision following joint investigation to which Article 60 applies 63. (1) A decision under section 62 , where the report referred to in subsection (1) of that section relates to a joint investigation to which Article 60 applies, constitutes the preliminary position referred to in that Article, and (subject to subsections (5) to (7)) sections 65 , 66 and 67 do not apply in relation to the decision.
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(2)As soon as is practicable after making a decision to which subsection (1) applies, the Commission shall give notice in writing of the decision to the inquiry subject.
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(3)A notice under subsection (2) shall— (a) set out the decision and the reasons for it, and (b) state the effect of subsections (1) and (5) to (7).
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(4)Where Coimisiún na Meán makes a communication under Article 60(2) in relation to a decision to which subsection (1) applies, the Commission shall as soon as is practicable give the inquiry subject notice in writing that the communication has been made.
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(5)If in relation to a decision to which subsection (1) applies— (a) no referral is made under Article 60(3), or (b) following a referral, the European Commission does not make a request under Article 59(3) for the matter to be reviewed, the Commission shall adopt the decision as its final decision.
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(6)If, in relation to a decision to which subsection (1) applies, the European Commission makes a request under Article 59(3) for the matter to be reviewed, the Commission may, following the review and subject to Article 59(3), do any of the following: (a) adopt the decision as its final decision; (b) request a person authorised under section 49
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(2)to give a direction under subsection (1) of that section for a new investigation; (c) take any other action that appears to the Commission to be necessary to ensure compliance with the Digital Services Regulation.
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(7)Where the Commission adopts a decision to which subsection (1) applies as its final decision, sections 65 , 66 and 67 shall apply in relation to the decision.
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Notice and publication of decision of Commission 64. (1) The Commission shall, as soon as is practicable after making a decision under section 62 , give notice in writing of the decision to the inquiry subject.
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(2)The notice under subsection (1) shall set out the decision made and the reasons for it.
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(3)If the Commission decides that a contravention has occurred, the notice shall also— (a) state that the decision does not take effect unless it is confirmed on appeal under section 68 or on summary application under section 69 , and (b) state that, if the inquiry subject does not appeal under section 68 , the Commission will, as soon as is practicable after the expiration of the period for the making of an appeal referred to in section 68
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(1), make an application in a summary manner for confirmation of the decision under section 69 .
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(4)If the Commission decides to impose an administrative financial sanction, the notice shall also— (a) state that the inquiry subject may make submissions in relation to the application of section 67 to the determination of the amount of the sanction, (b) state either that— (i) those submissions may be made at an oral hearing, under section 65
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(2)(a), on a date specified in the notice, or (ii) those submissions may be made in writing, under section 65
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(2)(b), within a period specified in the notice in accordance with that section, and (c) state that the Commission may request further information under section 65
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(3).
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(5)Where the decision made under section 62 relates to a contravention falling within paragraph (a) or (c) of the definition of “contravention” in section 43 , the Commission shall publish the decision on a website maintained by it and that publication shall include the following matters: (a) the name of the inquiry subject; (b) the nature of the suspected contravention to which the investigation related; (c) the reasons for the decision; (d) such other particulars, reports or material as the Commission considers appropriate.
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(6)Where a notice under subsection (1) relates to a contravention referred to in paragraph (a) or (c) of the definition of “contravention” in section 43 , a copy of the notice— (a) shall be provided by the Commission to Coimisiún na Meán, and (b) shall be provided by Coimisiún na Meán to— (i) the European Commission, (ii) the European Board for Digital Services, and (iii) each Member State Digital Services Coordinator.
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(7)The Commission may provide a copy of a notice referred to in subsection (1) to any other person where it considers it appropriate to do so.
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(8)A person who receives a copy of a notice under subsection (7) prior to the publication of the decision under subsection (5) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the notice, including any content redacted in accordance with subsection (10) from a notice published under subsection (5), to any other person.
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(9)A person who, without reasonable excuse, contravenes subsection (8) shall be guilty of a category 2 offence.
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(10)The Commission may, for the purposes of publication under subsection (5), redact any particulars which appear to the Commission— (a) to be commercially sensitive, or (b) to relate to the commission of an offence.
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Chapter 5
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Administrative financial sanctions Submissions and requests for information 65. (1) Subsections (2) and (3) apply where the Commission has made a decision under section 62 to impose an administrative financial sanction on a person.
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(2)The person may make submissions to the Commission in relation to the application of section 67 to the determination of the amount of the sanction— (a) at an oral hearing held in accordance with the Schedule , where the Commission considers it necessary, or (b) otherwise, in writing, within the period of 10 working days from the date the person receives the notice under section 64 , or such longer period as the Commission may specify in the notice.
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(3)Where a person makes submissions to the Commission under subsection (2)(b), the Commission may by notice in writing request the person to provide, within a specified period, such further information as the Commission considers appropriate for the purposes of determining the amount of the sanction.
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(4)A person who— (a) without reasonable excuse fails to comply with a request under subsection (3), or (b) in purported compliance with a request under subsection (3), 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.
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Determination of amount of administrative financial sanction 66. (1) Where a decision has been made under section 62 to impose an administrative financial sanction, the Commission shall determine the amount of the sanction in accordance with section 67 .
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(2)The Commission shall make the determination as soon as is practicable after— (a) where section 65
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(2)(a) applies, the date of the oral hearing referred to in that paragraph, or (b) where section 65
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(2)(b) applies, the expiry of the period or further period referred to in that paragraph, or if applicable the period specified in any notice under section 65
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(3), whether or not any submissions have been made or information provided.
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(3)As soon as is practicable after making the determination, the Commission shall give the inquiry subject a notice in writing of the determination and the reasons for it.
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(4)As soon as is practicable after giving the notice under subsection (3), the Commission shall publish the notice on a website maintained by it.
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(5)The Commission may, for the purposes of publication under subsection (4), redact any particulars from the notice which appear to the Commission— (a) to be commercially sensitive, or (b) to relate to the commission of an offence.
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Limitations on amount of administrative financial sanction 67. (1) In the case of a contravention falling within paragraph (a) or (c) of the definition of “contravention” in section 43 , the amount of an administrative financial sanction imposed under section 62 shall not exceed 6 per cent of the annual turnover of the inquiry subject in the financial year preceding the date of the decision under section 62 to impose the sanction.
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(2)In the case of a contravention falling within paragraph (b) of that definition, the amount of an administrative financial sanction imposed under section 62 shall not exceed one per cent of the annual income or turnover of the inquiry subject in the financial year preceding the date of the decision under section 62 to impose the sanction.
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(3)The Commission shall have regard to the following matters in determining the amount of the administrative financial sanction imposed under section 62 : (a) the nature, gravity and duration of the contravention; (b) the degree of harm to particular people or to the public caused as a result of the contravention; (c) the extent of any failure by the inquiry subject to co-operate with an investigation, provided that acknowledgement of a contravention shall not in itself constitute grounds for reduction of a sanction; (d) any explanation accepted by the Commission for the contravention or the failure to co-operate with an investigation; (e) any gain (financial or otherwise) made, or any loss (financial or otherwise) avoided, by the inquiry subject or by any person in which the inquiry subject has a pecuniary interest or beneficial interest, as a consequence of the contravention; (f) whether a previous decision under section 62 in respect of the inquiry subject has been confirmed or made by the appropriate court (within the meaning of section 68 ) under section 68 or confirmed by the Circuit Court under section 69 ; (g) the nature and timeliness of any steps taken by the inquiry subject to bring the contravention to an end, and any steps taken by the inquiry subject to remedy the consequences of the contravention; (h) the absence or ineffectiveness of internal mechanisms or procedures intended to prevent such a contravention; (i) the extent to which the contravention was contributed to by the act or omission of a third party, and the extent to which the inquiry subject took steps to identify, and mitigate the effect of, the act or omission; (j) the extent to which the contravention was contributed to by circumstances beyond the control of the inquiry subject, and the extent to which the inquiry subject took steps to identify, and mitigate the effect of, those circumstances; (k) in the case of a body corporate, the extent to which the management of the body knew, or ought to have known, that the contravention was occurring or would occur; (l) the income or turnover of the inquiry subject in the financial years during which the contravention occurred, and the ability of the inquiry subject to pay a sanction; (m) any views communicated by the European Commission under Article 59(3) that are relevant to the amount of the sanction; (n) any submissions made by the inquiry subject under section 65
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(2)in relation to the determination of the amount of the sanction; (o) any further information given to the Commission by the inquiry subject in response to a request under section 65
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(3); (p) previous determinations under this section which have been confirmed or made by the appropriate court (within the meaning of section 68 ) under section 68 or confirmed by the Circuit Court under section 69 .
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(4)The amount of an administrative financial sanction imposed under section 62 shall— (a) be proportionate to the nature of the contravention, and (b) be set with a view to deterring the inquiry subject and, where the inquiry subject is a provider, other providers, from committing a contravention.
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Appeal against decision 68. (1) The inquiry subject to whom a decision under section 62 relates may, within 28 days from the date on which the notice referred to in section 64 is received, or where section 66 applies, within 28 days from the date on which the notice referred to in section 66
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(3)is received, appeal to the appropriate court against the decision.
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(2)The appropriate court may, on the application of the inquiry subject, extend the period for the making of an appeal under subsection (1), where it is satisfied that— (a) there is good and sufficient reason for doing so, (b) the circumstances that resulted in the failure to bring an appeal within the period referred to in subsection (1) were outside the control of the inquiry subject, and (c) an application for confirmation has not been determined under section 69 .
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(3)In considering an appeal, the appropriate court— (a) shall have regard to the record of the decision the subject of the appeal, and (b) may, where it considers it necessary for the fair and proper determination of the appeal, consider any evidence adduced or submission made by the inquiry subject, whether or not already adduced or made to the authorised officer or the Commission.
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(4)Subject to subsection (6), the appropriate court may, on the hearing of an appeal under subsection (1)— (a) confirm the decision, or (b) subject to subsection (5)— (i) set aside the decision, (ii) set aside the decision and replace it with such other decision as the court considers it just and appropriate to make, including a decision not to impose an administrative financial sanction, or a decision to impose an administrative financial sanction of a different amount, or (iii) remit the decision for reconsideration by the Commission, subject to such directions as the court considers appropriate.
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(5)A decision of the Commission may not be set aside or remitted by the appropriate court under subsection (4)(b) for error of law or fact unless the appropriate court is satisfied that the Commission committed a serious and significant error in making the decision, or that the Commission committed a series of minor errors which, when taken together, amount to a serious and significant error.
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(6)For the purposes of subsection (4), sections 62
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(4)and 67 shall apply to the appropriate court and references to the Commission in those sections shall be construed as references to the appropriate court.
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(7)Where the appropriate court is the Circuit Court it may make such interim or interlocutory orders in any proceedings under subsection (1) or (2) as it considers appropriate.
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(8)The appropriate court may direct how the costs of an appeal under this section are to be borne.
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(9)In this section, “appropriate court” means— (a) where no administrative financial sanction is imposed under section 62 or where the amount of any administrative financial sanction imposed does not exceed €75,000, or such other sum as stands specified in law as that court’s jurisdiction in tort, the Circuit Court, or (b) in any other case, the High Court.
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Circuit Court confirmation of decision 69. (1) Where the inquiry subject to whom a decision under section 62 relates does not appeal against the decision in accordance with section 68
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(1), the Commission shall, as soon as is practicable after the expiration of the period referred to in section 68
\n
(1), and on notice to the inquiry subject, make an application in a summary manner to the Circuit Court for confirmation of the decision.
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(2)On the hearing of an application under subsection (1), the Circuit Court shall confirm the decision unless it is satisfied, on the basis of the evidence that was before the Commission when making the decision— (a) that the Commission made an error of law which is— (i) manifest from the record of the decision, and (ii) fundamental so as to deprive the decision of its basis, or (b) that any administrative financial sanction imposed is manifestly disproportionate.
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(3)If under subsection (2) the Circuit Court does not confirm the decision it may— (a) annul the decision, or (b) remit it for reconsideration by the Commission, subject to such directions as it considers appropriate.
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(4)The inquiry subject may, as soon as is practicable after receiving notice of the application under subsection (1), inform the Commission in writing that it does not intend to appear at, or make submissions at, the hearing of the application.
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(5)If an application to extend the period for the making of an appeal against a decision is made under section 68
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(2)to the High Court, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision under section 68
\n
(2).
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(6)If the High Court makes an order under section 68
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(2)extending the period for the making of an appeal under section 68
\n
(1)against a decision, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision on the appeal under section 68
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(4).
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(7)The Circuit Court may make such interim or interlocutory orders as it considers appropriate in any proceedings under subsection (1).
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(8)The Circuit Court may direct how the costs of an application under subsection (1) are to be borne.
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Treatment of amounts paid in respect of administrative financial sanctions 70. A payment received by the Commission of any amount due to it pursuant to a decision confirmed or made under section 68 or confirmed under section 69 shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.
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Reference on point of law to High Court 71. (1) Where a division of the Commission decides, before the making of a decision under section 62 , or where a decision is made under that section to impose an administrative financial sanction, before the making of a determination under section 66 , to refer any question of law arising under Chapter 4 or Chapter 5 to the High Court, the Commission shall refer the question.
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(2)Subject to subsection (3), no appeal shall lie to the Court of Appeal from a decision of the High Court on a reference under subsection (1).
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(3)The High Court may grant leave to appeal, where it certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.
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Chapter 6
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Daily payment penalty under section 53: appeal and confirmation Daily payment penalty under section 53: appeal and confirmation 72. (1) A person to whom a notice under section 53
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(6)is given may, within 28 days from the date on which the notice is received, appeal to the High Court against the decision to impose the daily payment penalty.
\n
(2)Subsections (2) to (6) and (8) of section 68 apply for the purposes of an appeal by a person under this section as they apply for the purposes of an appeal by the inquiry subject under subsection (1) of that section subject to the following and any other necessary modifications: (a) references to an administrative financial sanction are references to a daily payment penalty under section 53 ; (b) references to the appropriate court are references to the High Court.
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(3)Where the person to whom a notice under section 53
\n
(6)is given does not appeal in accordance with subsection (1) against the decision to impose a daily payment penalty, the Commission shall, as soon as is practicable after the expiration of the period referred to in subsection (1), and on notice to that person, make an application in a summary manner to the Circuit Court for confirmation of the decision.
\n
(4)
\n
Section 69
\n
(2)to (8) apply for the purposes of an application under subsection (3) subject to the following and any other necessary modifications: (a) the reference to an administrative financial sanction is a reference to a daily payment penalty under section 53 ; (b) references to an appeal under section 68
\n
(1)are references to an appeal under subsection (1) of this section; (c) references to section 69
\n
(1)are references to subsection (3) of this section.
\n
Chapter 7
\n
Notice to end contravention Notice to end contravention 73. (1) Where— (a) the Commission has decided under section 62 that it is satisfied that a contravention that is an infringement by a relevant provider of Article 30, 31 or 32 has occurred, and (b) the Commission’s decision in so far as it relates to the occurrence of the contravention is confirmed under section 68 or 69 or is replaced under section 68 with a decision to the same effect, the Commission may, if it is of the view that the contravention is continuing, give notice in writing to the provider directing the provider to put an end to the contravention.
\n
(2)A notice under subsection (1) shall state— (a) the steps which the Commission requires the provider to take to put an end to the contravention, and (b) the period within which those steps must be taken.
\n
(3)A notice under subsection (1) shall be given as soon as is practicable after the date on which the decision is confirmed under section 68 or 69 or is replaced under section 68 with a decision to the same effect.
\n
(4)A person who without reasonable excuse fails to comply with a notice under subsection (1) shall be guilty of a category 1 offence.
\n
(5)Where an offence has been committed under subsection (4) by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either a director, manager, secretary or other officer of the body corporate, or a person purporting to act in such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the offence committed by the body corporate.
\n
(6)Where the affairs of a body corporate are managed by its members, subsection (5) applies in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
\n
Daily payment for failure to comply with notice to end contravention 74. (1) Where the Commission gives a notice under section 73 to a provider, the Commission may, for the purpose of enforcing the notice, impose a penalty of a daily payment (in this section referred to as a “daily payment penalty”) on the provider.
\n
(2)Before the Commission makes a decision to impose a daily payment penalty on a provider, the Commission shall give the provider a notice in writing which— (a) states that if the provider fails to take the steps stated under section 73
\n
(2)(a) by a date specified in the notice under this subsection, the Commission intends to impose a daily payment penalty on the provider for each day during which the failure continues, beginning with the day following that date, (b) states why it appears to the Commission to be necessary to impose the penalty, (c) states the maximum daily amount of the penalty that the Commission may impose, and (d) invites the provider to make written submissions to the Commission regarding the matters to which the notice relates within the period specified in the notice or such further period as the Commission may allow.
\n
(3)The date specified under subsection (2)(a)— (a) may not be earlier than the end of the period specified under section 73
\n
(2)(b), and (b) may not be earlier than the date on which the notice under subsection (2) is given.
\n
(4)The amount of a penalty imposed under this section shall not exceed, for each day during which the failure referred to in subsection (2)(a) continues, 5 per cent of the provider’s average daily turnover in the preceding financial year.
\n
(5)Where the provider fails to take the steps stated under section 73
\n
(2)(a) by the date specified in the notice under subsection (2), the Commission, after considering any written submissions made by the provider within the period referred to in subsection (2)(d), may— (a) determine the daily amount of the penalty to be imposed, and the date on which it is to commence, and (b) by notice in writing to the provider, impose the penalty.
\n
(6)A decision of the Commission to impose a daily payment penalty under this section does not take effect unless it is confirmed on appeal under section 68 or on summary application under section 69 , as those sections apply in accordance with section 75 .
\n
Daily payment penalty under section 74: appeal and confirmation 75. (1) The provider to whom a notice under section 74
\n
(5)is given may, within 28 days from the date on which the notice is received, appeal to the High Court against the decision to impose the daily payment penalty.
\n
(2)Subsections (2) to (6) and (8) of section 68 apply for the purposes of an appeal by a provider under this section as they apply for the purposes of an appeal by the inquiry subject under subsection (1) of that section subject to the following and any other necessary modifications: (a) references to an administrative financial sanction are references to a daily payment penalty under section 74 ; (b) references to the appropriate court are references to the High Court.
\n
(3)Where the provider to whom a notice under section 74
\n
(5)is given does not appeal in accordance with subsection (1) against the decision to impose a daily payment penalty, the Commission shall, as soon as is practicable after the expiration of the period referred to in subsection (1), and on notice to the provider, make an application in a summary manner to the Circuit Court for confirmation of the decision.
\n
(4)
\n
Section 69
\n
(2)to (8) apply for the purposes of an application under subsection (3) subject to the following and any other necessary modifications: (a) the reference to an administrative financial sanction is a reference to a daily payment penalty under section 74 ; (b) references to an appeal under section 68
\n
(1)are references to an appeal under subsection (1) of this section; (c) references to section 69
\n
(1)are references to subsection (3) of this section.
\n
Chapter 8
\n
Access blocking order Further notice to end contravention 76. (1) Where the Commission has given a notice under section 73 to a provider in respect of a contravention, and it appears to the Commission that— (a) the provider has failed to comply with the notice within the period stated under section 73
\n
(2), (b) the contravention is continuing, (c) the other powers of the Commission pursuant to Article 51 to put an end to the contravention have been exhausted, and (d) the contravention is causing serious harm that cannot be avoided through the exercise of other powers, the Commission may, by notice in writing to the provider, request the management body of the provider to consider the steps required by the notice under section 73 and to propose what steps the provider should now be required to take to put an end to the contravention, and within what period.
\n
(2)A notice under subsection (1) shall state the time within which the management body must comply with the request.
\n
(3)Where the management body of a provider makes a proposal in accordance with a notice under subsection (1), the Commission may give a further notice in writing to the provider directing the provider to put an end to the contravention referred to in subsection (1) and stating— (a) the steps which the Commission requires the provider to take to put an end to the contravention, and (b) the period within which those steps must be taken.
\n
(4)
\n
Section 73
\n
(4)to (6), and sections 74 and 75 , apply in relation to a notice under subsection (3) as they apply in relation to a notice under section 73 .
\n
(5)The giving of a notice under subsection (3) does not affect the application of section 73
\n
(4)to (6), 74 or 75 in relation to the earlier notice under section 73 .
\n
Access blocking order 77. (1) Where— (a) the management body of a provider fails to make a proposal in accordance with a notice under section 76
\n
(1), or (b) the Commission gives a provider a notice under subsection (3) of section 76 , and the period referred to in paragraph (b) of that subsection expires without the Commission being satisfied that the contravention has ended, the Commission may apply to the High Court for an order requiring a relevant provider (referred to in this section as the provider of the “carrying service”) to block access in the State to an intermediary service (referred to in this section as the “subject service”) provided by the provider referred to in paragraph (a) or (b).
\n
(2)An application under subsection (1) shall be made on notice— (a) to the provider of the carrying service, (b) to the provider of the subject service, and (c) to any other person appearing to the Commission to have a legitimate interest.
\n
(3)Before making an application under subsection (1), the Commission shall give notice in writing to the persons referred to in subsection (2)— (a) stating that it intends to make an application under subsection (1), (b) setting out the order it intends to apply for and the addressees of that order, and (c) stating that the persons to whom the notice is given may submit written observations to the Commission within a period specified in the notice of not less than 10 working days beginning with the day on which the notice is received.
\n
(4)No application under subsection (1) may be made before the end of the period specified under subsection (3)(c).
\n
(5)On an application under subsection (1) the court may make an order requiring the blocking of access to the subject service if it is satisfied in relation to the relevant infringement— (a) that the infringement is continuing, (b) that the infringement entails a criminal offence involving a threat to the life or safety of persons, (c) that all reasonable steps for the Commission to take to put an end to the infringement have been taken, and (d) that, having regard to the nature, gravity, recurrence, and duration of the infringement, an order under this section is proportionate and will not unduly restrict access to lawful information by users of the subject service.
\n
(6)The High Court may provide in an order under this section that a requirement imposed by the order is subject to such conditions as it considers necessary.
\n
(7)Subject to subsection (8), an order under this section shall have effect for a period of not more than 28 days.
\n
(8)The High Court may provide that the Commission may, with leave of the court, extend the period for which an order under this section has effect for further periods of not more than 28 days subject to the maximum number of extensions specified by the court.
\n
(9)The Commission may make an application in accordance with subsection (8) for leave to extend the period for which an order under this section has effect only if, having regard to the rights and interests of all those affected by the order, it considers that— (a) the provider has failed to take the necessary measures to put an end to the relevant infringement, and (b) the extension will not unduly restrict access to lawful information by users of the subject service, having regard to the number of recipients affected and whether any adequate and readily accessible alternative exists.
\n
(10)Where in relation to an order under this section no application, or no further application, may be made in accordance with subsection (8) for leave to extend the period for which the order has effect, but having regard to the rights and interests of all those affected by the order, the Commission considers that the conditions referred to in subsection (9)(a) and (b) are satisfied, the Commission may make a further application under subsection (1).
\n
(11)The provider of the carrying service or the subject service may apply to the High Court to vary or discharge an order under this section in the event that there is any material change in the circumstances which gave rise to the order.
\n
(12)In this section, references to the provider of the carrying service blocking access to the subject service, where the carrying service is an application store service, include references to the provider of the carrying service blocking the downloading of software used to provide the subject service or to access the subject service.
\n
(13)In this section— “application store service” means a service the main purpose of which is to facilitate the download of, or access to, application software at endpoints of the internet; “relevant infringement” means the contravention referred to in section 76
\n
(1).
\n
Chapter 9
\n
Other enforcement measures Compliance notices 78. (1) Where an authorised officer is of the opinion that a relevant provider has infringed a provision of the Digital Services Regulation to which this section applies, the authorised officer may serve a notice (in this section referred to as a “compliance notice”) on the provider.
\n
(2)A compliance notice shall— (a) state the contravention to which it relates, (b) state the grounds on which the authorised officer is of the opinion referred to in subsection (1), (c) for the purpose of ensuring compliance by the provider with the provision which is the subject of the contravention, require the provider to do or refrain from doing anything specified in the notice by a date specified in the notice, and (d) contain information regarding the bringing of an appeal under subsection (6) against the notice, including information specifying the manner in which an appeal may be brought.
\n
(3)An authorised officer may withdraw a compliance notice at any time.
\n
(4)An authorised officer may amend a compliance notice by notice in writing to the provider to substitute any later date for the date for the time being specified under subsection (2)(c) or this subsection.
\n
(5)A date specified under subsection (2)(c) or (4) must be later than the date by which an appeal under subsection (6) may be brought.
\n
(6)A provider may, not later than 14 days after the service on the provider of a compliance notice, appeal against the notice to the District Court.
\n
(7)An appeal under subsection (6) shall be brought in the manner specified in accordance with subsection (2)(d).
\n
(8)The authorised officer and the provider concerned shall be entitled to be heard and to adduce evidence at the hearing of an appeal under subsection (6).
\n
(9)The District Court shall, on an appeal under subsection (6) against a compliance notice, do one of the following: (a) affirm the notice; (b) cancel the notice; (c) cancel the notice and require the provider to comply with such directions as may be given by the court.
\n
(10)A provider on whom a compliance notice is served who fails to comply with the notice by the due date shall be guilty of an offence and liable on summary conviction to a class B fine or imprisonment for a term not exceeding 6 months, or both.
\n
(11)The due date for the purposes of subsection (10) is: (a) where no appeal is brought under subsection (6), the date for the time being specified in the compliance notice in accordance with subsection (2)(c) or (4); (b) where an appeal against the notice is brought under subsection (6) and the court affirms the notice in accordance with subsection (9)(a), the day falling immediately after the expiration of the period of 14 days from the date on which the court affirms the notice.
\n
(12)Nothing done under this section prevents or restricts the taking of any other action for the purpose of enforcing a provision to which this section applies.
\n
(13)This section applies to Articles 30, 31 and 32.
\n
Power to enter into commitment agreement with provider 79. (1) The Commission may at any time enter into an agreement in writing with a relevant provider under which the provider agrees to take measures that appear to the Commission to address any issue relating to compliance by the provider with Article 30, 31 or 32.
\n
(2)An agreement under this section is referred to in this section as a “commitment agreement”.
\n
(3)A commitment agreement may include provision under which the Commission agrees, subject to the terms of the agreement, not to take specified steps in relation to matters or findings addressed by the agreement.
\n
(4)A commitment agreement, unless terminated under subsection (5) or (6), is binding on the parties for the period specified in the agreement.
\n
(5)A commitment agreement may be amended or terminated by the parties by agreement in writing.
\n
(6)The Commission may terminate a commitment agreement by giving notice in writing to the provider if— (a) the provider does not comply with the agreement, or (b) it appears to the Commission that information provided by the provider and relied on by the Commission for the purposes of entering into the agreement was, in a material respect, incomplete, misleading or false.
\n
(7)A provider who fails to comply with a commitment agreement may be liable to an administrative financial sanction in accordance with this Part.
\n
Chapter 10
\n
Offences under Part 3 Categories of offences 80. (1) A person guilty of an offence under this Part that is stated to be a category 1 offence shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 10 years, or both.
\n
(2)A person guilty of an offence under this Part or the Schedule that is stated to be a category 2 offence shall be liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.
\n
Summary proceedings for offences under Part 3 81. Summary proceedings for an offence under this Part may be brought and prosecuted by the Commission.
\n
PART 4
\n
Miscellaneous Amendment of section 24 of Act of 2014 82. Section 24 of the Act of 2014 is amended, in subsection (1), by the substitution of “section 25 and section 25A, and section 15AV of the Act of 2002,” for “section 25, and section 15AV of the Act of 2002”.
\n
Professional secrecy under Digital Services Regulation 83. The Act of 2014 is amended by the insertion of the following section after section 25: “25A. (1) Notwithstanding section 25 and without prejudice to the exchange and use of information referred to in Chapter IV of the Digital Services Regulation, an authorised officer, a member of staff of the Commission, a member of the Commission, a person engaged by the Commission in any other capacity or any other person involved shall not contravene Article 84 of the Regulation.
\n
(2)A person who, without reasonable excuse, contravenes subsection (1) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both.
\n
(3)In this section, ‘Digital Services Regulation’ means Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 20225 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act).”.
\n
Amendment of Online Safety and Media Regulation Act 2022 84.
\n
Section 42
\n
of the Online Safety and Media Regulation Act 2022 is amended by the substitution of “Section 134 of the Principal Act” for “The Principal Act”.
\n
SCHEDULE Oral Hearings 1. (1) This Schedule applies to an oral hearing under section 50 , 61
\n
(3)or (4)(d), or 65
\n
(2)(a).
\n
(2)In this Schedule— “authorised officer” has the same meaning as it has in
\n
Part 3
\n
; “conducting authority” means— (a) in relation to an oral hearing under section 50 , the authorised officer conducting the hearing, and (b) in relation to an oral hearing under section 61
\n
(3)or (4)(d) or 65
\n
(2)(a), the Commission; “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 a matter to which the oral hearing relates; “remote hearing” means a hearing in which— (a) the participants, including the conducting authority, are not all in the one place, and (b) one or more of them participate in the hearing by means of electronic communications technology permitting real time transmission and real time two-way audiovisual, or audio, communications.
\n
(3)This Schedule is without prejudice to section 18 of the Act of 2014.
\n
2.The conducting authority may by notice in writing require a person to attend or participate in an oral hearing at a time and place specified in the notice— (a) to give evidence in respect of any matter in issue, or (b) to produce any relevant material or relevant equipment which is within the person’s possession or control or which the person is able to procure.
\n
3.At an oral hearing, the conducting authority may take evidence on oath or affirmation, and may administer an oath for that purpose.
\n
4.(1) The conducting authority may allow a witness at an oral hearing to give evidence by tendering a written statement.
\n
(2)A statement tendered under subparagraph (1) shall be verified by oath or affirmation.
\n
5.A person giving evidence at an oral hearing, including an authorised officer, may be examined and cross-examined at the oral hearing.
\n
6.The conducting authority is bound by the rules of evidence in the conduct of an oral hearing, subject to such exceptions to the rule against hearsay evidence as may be provided for by rules under section 57 .
\n
7.A person to whom notice is given under paragraph 2 shall be entitled to the same immunities and privileges in respect of compliance with any requirement referred to in that paragraph as if the person were a witness before the High Court.
\n
8.Where a person to whom notice is given under paragraph 2 does not comply with a requirement referred to in that paragraph, the conducting authority may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply with the requirement within a period to be specified by the Court, and the Court may make the order sought or such other order as it thinks fit or refuse to make any order.
\n
9.Nothing in this Schedule compels the disclosure by any person of any information that the person would be entitled to refuse to produce on the grounds of legal professional privilege or authorises the inspection or copying of any document containing such information that is in the person’s possession.
\n
10.The conducting authority, where it is satisfied that special circumstances arise which so necessitate, may— (a) hold an oral hearing otherwise than in public, or partly otherwise than in public, or (b) require that any information is not disclosed in an oral hearing, or not otherwise published or reported where the Commission considers that— (i) it is commercially sensitive, (ii) its publication may prejudice an ongoing investigation by the Commission, the Garda Síochána or any other public body, or (iii) it is personal data.
\n
11.The Commission may pay or reimburse out of moneys at its disposal, in whole or in part, the reasonable travelling and subsistence expenses of a person required to attend an oral hearing.
\n
12.An oral hearing may be held by remote hearing.
\n
13.A person who, without reasonable excuse, knowingly gives false or misleading evidence on oath or affirmation shall be guilty of an offence and shall be liable— (a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or both, or (b) on conviction on indictment, to a fine not exceeding €250,000 or imprisonment for a term not exceeding 5 years, or both.
\n
14.A person who does not comply with a requirement under paragraph 2 or paragraph 10(b) shall be guilty of a category 2 offence.
\n
15.Without prejudice to paragraph 13, a person may be liable to an administrative financial sanction in accordance with
\n
Part 3
\n
if in an oral hearing where the suspected contravention is an infringement of Article 30, 31 or 32 of the Digital Services Regulation, he or she knowingly gives false or misleading evidence on oath or affirmation.
\n
16.A statement or admission made by a person in the course of an oral hearing shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under paragraph 13, and this shall be explained to the person in ordinary language by the conducting authority.
\n
1 OJ L277, 27.10.2022, p. 1 2 OJ L277, 27.10.2022, p. 1 3 OJ L277, 27.10.2022, p. 1 4 OJ L119, 4.5.2016, p. 1 5 OJ L277, 27.10.2022, p. 1 Privacy Statement Accessibility European Legislation Identifier (PDF) Open Data License Ráiteas Príobháideachais Inrochtaineacht Aitheantóir Eorpach Reachtaíochta (ELI) Ceadúnas Sonraí Oscailte Liosta Fianán © Government of Ireland. Oireachtas Copyright Material is reproduced with the permission of the Houses of the Oireachtas © Rialtas na hÉireann. Atáirgtear ábhar faoi Chóipcheart le cead ó Thithe an Oireachtais