Digital Services Act 2024, Section 5 and Part 2 (Coimisiún na Meán as Digital Services Coordinator)

Section 7(6) of the Broadcasting Act 2009, inserted by section 8 of the Act, designates Coimisiún na Meán (the Commission) as the Digital Services Coordinator and as the competent authority for the Digital Services Regulation other than for Articles 30, 31 and 32. Section 15 defines a contravention to include an infringement by a relevant intermediary service provider of any of the designated provisions of the Digital Services Regulation.

A designated provision is any provision of the Regulation other than Article 30, 31 or 32 or Section 5 of Chapter III. A relevant intermediary service provider is one whose main establishment is located in the State, one to which Article 13(1) applies and whose legal representative resides or is established in the State, or one to which Article 13(1) applies that has failed to designate a legal representative.

Section 32 provides that an administrative financial sanction for such an infringement shall not exceed 6 per cent of the turnover of the inquiry subject in the financial year preceding the date of the decision to impose it. Section 32 provides that the limit is one per cent of the income or turnover of the inquiry subject for a contravention within paragraph (c) of that definition.

Section 19 makes a person liable to an administrative financial sanction if, in the course of a Digital Services investigation, the person obstructs an authorised officer, fails to comply with an officer's requirement, or gives the officer information that is false or misleading in a material respect.

Section 139ZK(8B) provides that a person other than the inquiry subject may be sanctioned for such an act or omission only if, before it occurred, an authorised officer gave the person written notice, in reasonable time, of all relevant information about the exercise of the power or the request or requirement, including the time to comply, the maximum amount of the sanction and the effect of section 139ZS(2).

Section 21 inserts section 139ZLA, under which a daily payment penalty imposed to enforce an authorised officer's demands in a Digital Services investigation may not exceed, for each day the failure continues, 5 per cent of the person's average daily income or turnover in the preceding financial year.

Section 21 also inserts section 139ZLB, under which the Commission may, where there is prima facie evidence of a continuing infringement that gives rise to a risk of serious harm before a decision could be made, require the inquiry subject by written notice to take measures that would avoid or reduce that risk. Failure without reasonable excuse to comply with such a notice is a category 1 offence.

A category 1 offence is punishable on summary conviction by a class A fine or imprisonment for a term not exceeding 12 months or both, and on conviction on indictment by a fine not exceeding €500,000 or imprisonment for a term not exceeding 10 years or both.

Section 37 inserts section 139ZZBA, under which the daily payment penalty for failing to comply with a notice to end a contravention may not exceed, for each day the failure continues, 5 per cent of the provider's average daily turnover in the preceding financial year.

Section 38 inserts section 139ZZCB, under which the Commission may apply to the High Court for an order requiring a relevant intermediary service provider to block access in the State to an intermediary service provided by another provider. The court may make that order only if, among other conditions, the infringement is continuing and entails a criminal offence involving a threat to the life or safety of persons.

An access blocking order has effect for a period of not more than 28 days, which the High Court may allow the Commission to extend for further periods of not more than 28 days. Section 40 inserts section 139ZZGA, under which a compliance notice may be served on a relevant intermediary service provider for an infringement of Articles 11, 12, 13(4), 14(1), (2), (5) and (6), 15(1), 16(1), 21(1) and (4), 24(2), 25 and 26(1)(a), (b), (c) and (d) of the Digital Services Regulation.

A provider may appeal a compliance notice to the District Court not later than 14 days after service of the notice. A provider that fails to comply with a compliance notice by the due date commits an offence punishable on summary conviction by a class B fine or imprisonment for a term not exceeding 6 months or both.

Section 40 also inserts section 139ZZGB, under which the Commission may at any time enter into a written commitment agreement with a relevant intermediary service provider to address any issue relating to compliance with the designated provisions. A provider that fails to comply with a commitment agreement may be liable to an administrative financial sanction.

Section 190 of the Broadcasting Act 2009, inserted by section 41, lets the Commission award status as a trusted flagger to an entity established in the State that meets the conditions in Article 22(2). Section 187(7) of that Act requires a provider of a very large online platform or a very large online search engine to provide access to data to a vetted researcher where the Commission has issued a reasoned request under Article 40(4) for that researcher.

Section 201 of that Act lets a person complain to the Commission that an intermediary service provider has failed to comply with a provision of the Digital Services Regulation. Section 5 revokes regulations 15 to 18 of Statutory Instrument No. 68 of 2003, the European Communities (Directive 2000/31/EC) Regulations 2003.

Regulations 16, 17 and 18 of that instrument had provided that an intermediary service provider is not liable for information it transmits as a mere conduit, caches, or stores at the request of a recipient of its service, on the conditions they stated. Section 21 of the Broadcasting Act 2009 lets the Commission make an order imposing a levy on intermediary service providers and hosting service providers, among others.