Broadcasting Act 2009

(6) In deciding whether to accept or approve a proposal, the Minister and the Government shall have regard in particular to the matters listed insection 139B(5).

(7) Where an order is proposed to be made undersection 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.]

139D. F203[Age- inappropriate online content.

139D.—(1) 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.]

F204[Chapter 2

139E. 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 underChapter 3.

(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).

(3) Subject tosection 139Gthe 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.]

139F. F205[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 undersection 139Eas to whether to designate the service as a named service,

(b) relevant to a decision undersection 139Eas to whether to designate a category of services including the service, or

(c) required for inclusion in the register undersection 139J.

(2) A provider who fails, without reasonable excuse, to comply with a notice undersubsection (1)shall be guilty of a category 1 offence.]

139G. F206[Requirement to designate video-sharing platform services.

139G.—(1) The Commission shall designate as a category of services undersection 139Ethe video-sharing platform services the provider of which is under the jurisdiction of the State.

(2) The Commission shall designate as a named service undersection 139Eany 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.

(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 undersection 139Frequiring the provision of any information that appears to the Commission to be relevant for the purpose of complying withsubsection (2).

(4) For the purposes ofsubsections (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.]

139H. F207[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 undersection 19, and

(d) any other person the Commission considers appropriate.

(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.

(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.]

139I. F208[Revocation of designation.

139I.—(1) The Commission may, subject tosection 139G(1)and(2), at any time revoke a designation undersection 139E.

(2) Sections139E(3),139Fand139Happly in relation to revocation of a designation of a named service or a category of services as they apply in relation to a designation.]

139J. F209[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.

(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 underChapter 3that applies to that service or to the services within that category.]

F210[Chapter 3

139K. Online safety codes.

139K.—(1) The Commission may make codes (“online safety codes”), to be applied to designated online services in accordance withsection 139L.

(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.

(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 insubsection (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.

(4) Without prejudice tosubsection (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.

(5) Without prejudice tosubsection (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.

(6) Without prejudice tosubsection (4), the Commission shall make an online safety code, to be applied in accordance withsection 139Lto 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.

(7) In this section,“service provider”means the provider of a designated online service.]

139L. F211[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 withsubsection (2), and

(c) the determination has not been revoked.

(2) Notice undersubsection (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.

(3) Before making or revoking a determination undersubsection (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.

(4) Before making or revoking a determination undersubsection (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 undersection 19, and

(d) any other person the Commission considers appropriate.

(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 insection 139A(2).

(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.]

139M. F212[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 undersection 139ZF.]

139N. F213[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 undersection 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 insection 139K(2)(d)which it proposes to make.

(2) As soon as practicable after making an online safety code, the Commission shall give a copy of the code to the Minister.

(3) As soon as practicable after receiving a copy of an online safety code undersubsection (2), the Minister shall lay copies of the code before each House of the Oireachtas.

(4) The Commission may at any time amend or revoke an online safety code, or any provision of an online safety code, andsubsections (1)to(3)apply to an amendment or revocation of an online safety code as they apply to an online safety code.

(5) The Commission shall from time to time review the operation of any online safety code it makes.

(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.

(7) The Commission shall publish a report given to the Minister undersubsection (6)on a website maintained by the Commission.]

139O. F214[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.

(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.

(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.

(4) The Commission may at any time by notice in writing extend the time within which information is to be provided.

(5) If within the period referred to insubsection (3)the provider requests the Commission to make an extension undersubsection (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.

(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 undersubsection (1), or

(b) in purported compliance with a notice undersubsection (1), the provider provides false information, knowing that it is false or being reckless as to whether it is false.

(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.]

139P. F215[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.

(2) A notice undersubsection (1)may relate to audits to be undertaken periodically, at intervals specified in the notice.

(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.

(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.

(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.

(6) The co-operation that may be specified undersubsection (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.

(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 withsubsection (3)(a), and any information relevant for the purposes ofsubsection (3)(b).

(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.

(9) After considering any representations made undersubsection (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.

(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 insubsection (3)(a), the Commission shall consider that matter for the purpose of deciding whether to exercise its functions under this section.

(11) A provider who fails without reasonable excuse to comply with a notice undersubsection (1)shall be guilty of a category 1 offence.]

139Q. F216[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 ofPart 8B.]

F217[Chapter 4

139R. Complaints to Commission about harmful online content.

139R.—Where a scheme undersection 139Vprovides 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.]

139S. F218[Complaints which may be considered by Commission.

139S.—(1) Subject tosubsection (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.

(2) Where the Commission is not satisfied that the conditions insubsection (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 insection 139U.

(3) Where a complaint relates to content which falls within one of the offence-specific categories of harmful online content defined insection 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.]

139T. F219[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 undersection 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 undersection 139V.

(2) Where the Commission concludes its consideration of a complaint under this Chapter but does not consider any action withinsubsection (1)to be appropriate, it shall provide such advice, guidance or support to the complainant as it considers appropriate.]

139U. F220[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.]

139V. F221[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 insection 139R.

(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.

(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.

(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 insection 139S(1)are met.]

139W. F222[Complaint scheme: procedure.

139W.—(1) Before making a scheme undersection 139V, the Commission shall consult—

(a) any advisory committee it has established for that purpose undersection 19, and

(b) any other person the Commission thinks appropriate.

(2) The Commission shall give the Minister a copy of any scheme made undersection 139Vas soon as practicable after it is made.

(3) The Commission may amend or replace a scheme made undersection 139V, andsubsections (1)and(2)apply to the amendment of a scheme as they apply to the making of a scheme.

(4) A scheme made undersection 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.]

139X. F223[ 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 undersection 139Vsuch 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 undersection 139L.

(2) The Commission’s proposals in the plan prepared undersubsection (1)shall prioritise the making of schemes undersection 139Vrelating to complaints about harmful online content relating to or directed at children.

(3) A plan prepared undersubsection (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.]

139Y. F224[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.

(2) Without prejudice tosubsection (1), the Commission shall review the operation of a scheme undersection 139Vwhere the Minister requests the Commission in writing to do so.

(3) The Commission shall give a report of a review to the Minister as soon as practicable after completing the review.

(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.]

F225[Chapter 5

139Z. 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 ofsubsection (4)ofsection 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 ofF226[children]and the general public from harmful online content and age-inappropriate online content.

(2) Before issuing guidance materials undersubsection (1), the Commission shall consult—

(a) any advisory committee it has established for that purpose undersection 19, and

(b) any other person the Commission thinks appropriate.

(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.

(4) Before issuing an advisory notice undersubsection (3), or as soon after as is practicable, the Commission shall consult—

(a) any advisory committee it has established for that purpose undersection 19, and

(b) any other person the Commission thinks appropriate.]

139ZA. F227[Guidance materials and advisory notices: matters to be considered.

139ZA.—(1) In preparing guidance materials or advisory notices undersection 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 undersection 139ZF.]

139ZB. F228[Guidance materials and advisory notices: procedure.

139ZB.—(1) This section applies to any guidance materials or advisory notices issued by the Commission undersection 139Z.

(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.

(3) As soon as practicable after issuing guidance materials or an advisory notice, the Commission shall give a copy to the Minister.

(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.

(5) The Commission may at any time withdraw guidance materials or an advisory notice.]

F229[Chapter 6

139ZC. 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.

(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.

(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.

(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.

(5) As soon as practicable after making a scheme under this section, the Commission shall give a copy to the Minister.

(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.

(7) The Commission may at any time amend or replace a scheme under this section.

(8)Subsection (5)applies to the amendment or replacement of a scheme as it applies to the making of a scheme.

(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.

(10) In this section,“scheme”means a scheme made under this section.

(11) In this section andsections 139Oand139P,“nominated body”means a body nominated by the Commission under a scheme.]

139ZD. F230[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 undersection 139Z.]

139ZE. F231[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 bysubsection (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.

(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 undersection 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 undersubsection (5), and

(c) that the Commission may publish the information it is required to publish in accordance withsubsections (4)and(6).

(3) The Commission shall notify the Minister of any voluntary arrangement it enters into.

(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 withsubsection (2)(a).

(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.

(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 undersubsection (5), the Commission may publish, on a website maintained by it, a notice of the failure, and information about the nature of the failure.

(7) The Commission shall keep any voluntary arrangement under review.

(8) The Commission or the provider may at any time end a voluntary arrangement by notice in writing to the other.]

139ZF. F232[e-Commerce compliance strategy.

139ZF.F233[(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 Articles 4 to 6 of the Digital Services Regulation, and

(b) no general obligation contrary to Article 8 of that Regulation to monitor the information intermediary service providers transmit or store, or actively to seek facts or circumstances indicating illegality,

are imposed on those providers by virtue of online safety codes, online safety guidance materials or advisory notices.]

(2) Before preparing an e-Commerce compliance strategy the Commission shall consult—

(a) any advisory committee it has established for that purpose undersection 19, and

(b) any other person the Commission thinks appropriate.

(3) The Commission shall publish an e-Commerce compliance strategy prepared or revised under this section on a website maintained by it.]

PART 8B Investigations and sanctions

Chapter 1

139ZG. Interpretation.

F235[139ZG.(1) In this Part—

“authorised officer”means a person appointed to be an authorised officer undersection 139ZH(1), and "the authorised officer", in relation to an investigation, means the authorised officer carrying out the investigation;

“contravention”means—

(a) a failure to comply withsection 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 undersection 128C, an online safety code,section 159B(1)(or any rules made undersection 159B(6)) orsection 159C(1)(or any rules made undersection 159C(3)or(6)),

(b) an infringement by a relevant intermediary service provider of any of the designated provisions of the Digital Services Regulation,

F236[(ba) an infringement by a hosting service provider of Article 3(3) or (6), Article 4(2) or (7), Article 5(1), (2), (3), (5) or (6), Article 6, Article 7, Article 10, Article 11, Article 14(5), Article 15(1), or Article 17, of the Terrorist Content Online Regulation,]

(c) anything for which section139ZK(8A)or139ZR(9A)orparagraph 14Aof Schedule 4 provides that a person may be liable to an administrative financial sanction in accordance with this Part, or

(d) anything for which section139ZLB(10)or139ZZGB(7)provides that a person may be liable to an administrative financial sanction in accordance with this Part;

“designated provision”in relation to the Digital Services Regulation means any of the provisions of the Regulation other than Article 30, 31 or 32 or Section 5 of Chapter III;

“Digital Services investigation”means an investigation where the suspected contravention falls withinparagraph (b)of the definition of ‘contravention’;

“inquiry subject”in relation to an investigation or other proceedings under this Part, means the person whose contravention or suspected contravention is the subject of the investigation or other proceedings;

“place”includes

(a) a dwelling;

(b) a building;

(c) any other premises;

(d) a vehicle, vessel, aircraft, or other means of transport;

“relevant equipment”means, in relation to an investigation, any electronic, photographic, magnetic, optical or other equipment, including a computer, which may be used for processing or holding relevant material;

“relevant intermediary service provider”means any of the following:

(a) an intermediary service provider whose main establishment is located in the State;

(b) an intermediary service provider to which Article 13(1) applies and whose legal representative designated under that Article resides or is established in the State;

(c) an intermediary service provider to which Article 13(1) applies, but which has failed to designate a legal representative under that Article;

“relevant material”means, in relation to an investigation, any document, information, or content, however communicated, recorded or stored, which may be relevant to the investigation;

“very large online platform”means an online platform designated by a decision of the European Commission under Article 33(4);

“very large online search engine”means an online search engine designated by a decision of the European Commission under Article 33(4).

(2) A word or expression used in this Part that is also used in the Digital Services Regulation has, unless the context otherwise requires, the same meaning in this Part as it has in that Regulation.

(3) Unless the context otherwise requires, a reference in this Part to a numbered Article is a reference to the Article so numbered of the Digital Services Regulation.]]

F237[Chapter 1A

139ZGA. Provision of information for purposes of functions of Commission as competent authority under Terrorist Content Online Regulation

139ZGA.—(1) The Commission may by notice in writing require a person (in this section referred to as "the person") to provide the Commission with information relating to whether the person—

(a) is a hosting service provider, or

(b) is a hosting service provider that is, or has been, exposed to terrorist content.

(2) A notice undersubsection (1)shall specify the information to be provided by the person and the form and manner in which that information shall be provided.

(3) The person shall comply with a notice undersubsection (1)within a period of 20 working days of the date of the notice under that subsection or within such further period as may be agreed in writing before the expiry of the 20 days between the Commission and the person concerned.

(4) The Commission may, on notice to the person, apply to a judge of the District Court who is assigned to the Dublin Metropolitan District for an order undersubsection (5)where it appears to the Commission that the person has failed to comply withsubsection (3).

(5) The judge of the District Court may, on hearing an application undersubsection (4), where he or she is satisfied that the person concerned has failed to comply withsubsection (3), make an order directing the person, within such period as is specified in the order, to provide the information requested in the notice undersubsection (1).

(6) In this section—

"exposed to terrorist content" shall be construed in accordance with Article 5 of the Terrorist Content Online Regulation, and

"terrorist content" has the same meaning as it has in Article 2(7) of the Terrorist Content Online Regulation.]

F238[Chapter 2

139ZH. Appointment of authorised officers.

139ZH.—(1) The Commission may appoint a person to be an authorised officer for the purposes of this Act.

(2) The Commission shall provide an authorised officer appointed undersubsection (1)with a certificate of his or her appointment.

(3) An authorised officer exercising a power conferred by or under this Act shall, if requested by a person affected by the exercise of the power, produce for that person to inspect—

(a) the certificate of his or her appointment, or a copy of it, and

(b) a form of personal identification.

(4) An authorised officer shall be appointed subject to such terms and conditions (including terms as to remuneration and allowances for expenses (if any)) as the Commission may, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform, determine.

(5) A person’s appointment undersubsection (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.]

139ZI. F239[ Commencement and terms of investigation.

139ZI.—(1) If a person authorised by the Commission undersubsection (2)believes there is reason to suspect that there has been a contravention, the person may direct an authorised officer to carry out an investigation of the suspected contravention.

(2) The Commission may authorise any Commissioner or member of its staff for the purposes ofsubsection (1).

(3) The person who directs the authorised officer to carry out an investigation undersubsection (1)shall define the terms of the investigation in writing.]

F240[(4) Where the provider of a very large online platform or very large online search engine would be the inquiry subject, no direction may be given undersubsection (1)in relation to a contravention that is an infringement of the Digital Services Regulation if the European Commission has initiated proceedings for the same infringement.

(5) Where the suspected contravention is an infringement of the Digital Services Regulation by a person falling withinparagraph (c)of the definition of "relevant intermediary service provider" insection 139ZG, a direction may be given undersubsection (1)only if—

(a) the Commission has given the notification required by Article 56(7), and

(b) no notification under Article 56(7) referring to the same infringement has been given by the European Commission or a Member State Digital Services Coordinator, or any that has been given has been withdrawn.

(6) Where a direction is given undersubsection (1)and the suspected contravention is an infringement of the Digital Services Regulation, the Commission shall notify—

(a) the European Commission,

(b) the European Board for Digital Services, and

(c) each Member State Digital Services Coordinator.]

139ZJ. F241[Notice of commencement of investigation.

139ZJ.—(1) An authorised officer directed to carry out an investigation undersection 139ZI(1)shall give theF242[inquiry subject]a notice in writing of the commencement of the investigation.

(2) The notice shall include—

(a) a statement of the nature and particulars of the suspected contravention,

(b) a copy of the terms of the investigation defined undersection 139ZI(3), and

(c) a copy of any material relied upon by the person referred to insection 139ZI(3)in defining those terms or notice of the place at which such material may be inspected and copied by theF242[inquiry subject].

(3) A notice undersubsection (1)shall state that theF242[inquiry subject]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 theF242[inquiry subject]an opportunity to respond.]

F243[(4)In the case of an investigation pursuant to a direction undersection 139ZI(1)which is a joint investigation to which Article 60 applies, the authorised officer shall also give the inquiry subject notice in writing of—

(a) the Member State Digital Services Coordinators or other Member State competent authorities participating in the investigation, and

(b) the deadline for the conclusion of the investigation.]

139ZJA. F244[Notice of communication under Article 58(5).

139ZJA.—Where, at any time after the commencement of an investigation pursuant to a direction undersection 139ZI(1), the Commission makes a communication under Article 58(5) relating to the suspected contravention which is the subject of the investigation, the Commission shall as soon as is practicable give the inquiry subject notice in writing that the communication has been made.]

139ZK. F245[Powers of authorised officer.

139ZK.—(1) For the purposes of an investigationF246[pursuant to a direction undersection 139ZI(1)], an authorised officerF247[may, subject tosubsection (1A), do any of the following]:

(a)F246[except in the case of an investigation to whichparagraph (aa)applies,]subject tosubsection (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 serviceF248[, hosting service provider]or designated online service takes place, or

(ii) that relevant material or relevant equipment is kept;

F246[(aa) In the case of a Digital Services investigation, or an investigation where the suspected contravention falls withinparagraph (c)or(d)of the definition of "contravention" insection 139ZG, subject tosubsection (7), at any reasonable time, enter any place that the authorised officer has reasonable grounds for believing is used—

(i) by the inquiry subject for purposes related to the inquiry subject’s trade, business, craft or profession, or

(ii) by a relevant person for purposes related to that person’s trade, business, craft or profession;]

(b) search a place referred to inF247[paragraph (a)or(aa)];

(c) stop any vehicle, or detain any vessel, aircraft or other means of transport, for the purpose of exercising a power underF247[paragraph (a),(aa)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,F248[hosting service provider]or aF247[a designated online service or an intermediary service];

(h) require any person to attend before the authorised officer to give any information that the officer may require the person to give under this section;

(i) operate any relevant equipment, or cause it to be operated by a person accompanying the authorised officer, for the purpose of accessing relevant material;

(j) require any person to give the authorised officer all reasonable assistance in the operation of relevant equipment for the purpose of accessing relevant material, including—

(i) making the material legible and comprehensible or providing any authentication necessary to do so, or

(ii) enabling the material to be taken away in any form;

(k) secure for later inspection, for such period as the authorised officer reasonably considers necessary, any place where the authorised officer has reasonable grounds for believing there is relevant material or relevant equipment;

(l) inspect and take extracts from or copies of any relevant material;

(m) remove from any place, and retain, any relevant material or relevant equipment, for such period as the authorised officer reasonably considers necessary;

(n) require any person who has any relevant material or relevant equipment in his or her power or control to retain the material or maintain the equipment for such period as the authorised officer reasonably considers necessary.

F246[(1A) In the case of a Digital Services investigation, or an investigation where the suspected contravention falls withinparagraph (c)or(d)of the definition of "contravention" insection 139ZG, a requirement underparagraph (d),(e),(f),(g),(h),(j)or(n)ofsubsection (1)may be imposed only on the following persons:

(a) the inquiry subject;

(b) a relevant person;

(c) a member of staff or representative, or former member of staff or representative, of the inquiry subject or a relevant person.

(1B) Inparagraph (aa)ofsubsection (1)and insubsection (1A), "relevant person" means a person acting for purposes related to the person’s trade, business, craft or profession who may reasonably be aware of information relating to the suspected contravention.]

(2) An authorised officer may specify that a requirement underparagraph (d),(e),(f),(g),(h)orF247[(j)ofsubsection (1)]be complied with within such reasonable period as he or she may determine.

(3) An authorised officer may conduct an oral hearing if he or she considers it necessary for the purposes ofF247[an investigation pursuant to a direction undersection 139ZI(1)].

(4)Schedule 4, and any rules made by the Commission undersection 139ZN, shall have effect for the purposes of an oral hearing referred to insubsection (3).

(5) When performing a function under this Act, an authorised officer may, subject to the terms of any warrant issued undersection 139ZL, be accompanied by such and so many other persons, including members of the Garda Síochána, as he or she considers appropriate.

(6) An authorised officer may require a person to provide his or her name and address if the authorised officer has reasonable grounds for requiring the information in order to apply for a warrant undersection 139ZL.

(7) An authorised officer shall not enter a dwelling, other than—

(a) with the consent of the occupier, or

(b) in accordance with a warrant undersection 139ZL.

(8) A person shall be guilty of a category 2 offence if he or she—

(a) without reasonable excuse, obstructs an authorised officer in the exercise of his or her powers under this section,

(b) without reasonable excuse, fails or refuses to comply with a requirement of an authorised officer under this section,

(c) with the intention of obstructing an authorised officer in the conduct of an investigation, alters, hides, or destroys, any relevant material or relevant equipment which is, or which could reasonably be, the subject of a requirement of an authorised officer under this section,

(d) in purported compliance with a requirement under this section, gives to an authorised officer information which the person knows to be false or misleading in any material respect, or

(e) falsely represents himself or herself to be an authorised officer.

F246[(8A) Without prejudice tosubsection (8), a person may, subject tosubsection (8B), be liable to an administrative financial sanction in accordance with this Part if in the course of a Digital Services investigation he or she—

(a) obstructs an authorised officer in the exercise of his or her powers undersubsection (1)(aa),(b)or(c),

(b) fails or refuses to comply with a requirement of an authorised officer undersubsection (1)(d),(e),(f)or(g),

(c) in purported compliance with a requirement under this section, gives to an authorised officer information which is false or misleading in a material respect, or

(d) fails to rectify—

(i) any failure on his or her part to comply with a requirement of an authorised officer undersubsection (1)(d),(e),(f)or(g), or

(ii) any information which he or she has given to an authorised officer in purported compliance with a requirement under this section and which is false or misleading in a material respect.

(8B) Where, in the course of a Digital Services investigation, a person other than the inquiry subject does an act or makes an omission referred to in any paragraph ofsubsection (8A), that subsection does not authorise the imposition of an administrative financial sanction on that person unless, before the act or omission occurred, the person was given in reasonable time by notice in writing by an authorised officer all relevant information relating to the exercise of the power, or to the request or requirement, referred to in that paragraph, including information about—

(a) the time within which the person was required to comply with the exercise of the power or with the request or the requirement,

(b) the maximum amount of the administrative financial sanction that could be imposed on the person, and

(c) the effect ofsection 139ZS(2), and the sections referred to there, in relation to the imposition of an administrative financial sanction.]

(9) Where an authorised officer has exercised his or her powers under this section in good faith, the Commission shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the exercise of those powers.

(10) A statement or admission made by a person pursuant to a requirement of an authorised officer undersubsection (1)shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence undersubsection (8), and this shall be explained to the person in ordinary language by the authorised officer.

(11) A person the subject of a requirement undersubsection (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.]

139ZKA. F249[Use of powers for other purposes of Digital Services Regulation.

139ZKA.—(1) A person authorised by the Commission, undersubsection (2), may direct an authorised officer to exercise powers undersection 139ZK, as that section applies in accordance withsubsection (3), for the purpose of assisting the Commission to perform its functions—

(a) under Article 57(2) in relation to an investigation by a Member State Digital Services Coordinator or other Member State competent authority,

(b) under Article 60(4) in relation to a joint investigation led by a Member State Digital Services Coordinator, or

(c) under Article 66(3) in relation to an investigation conducted by the European Commission.

(2) The Commission may authorise any Commissioner or member of its staff for the purposes ofsubsection (1).

(3) Where a direction is given undersubsection (1),sections 139ZKand139ZLapply for the purposes referred to in that subsection as they apply in relation to a Digital Services investigation.

(4) Before exercising powers undersection 139ZKas applied bysubsection (3), an authorised officer shall give the inquiry subject a notice in writing which—

(a) identifies the investigation or exercise of investigative powers referred to insubsection (1), and

(b) states that the powers may be exercised by an authorised officer for the purposes of the investigation.]

139ZL. F250[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 bysection 139ZK.

(2) A warrant undersubsection (1)may permit an authorised officer to be accompanied by such and so many other persons, including members of the Garda Síochána, as the officer considers necessary.

(3) A warrant issued under this section shall be valid for 28 days from its date of issue.]

139ZLA. F251[Enforcement of investigatory powers by daily payment penalty.

139ZLA.—(1) A penalty of a daily payment (in this section referred to as a "daily payment penalty") may be imposed on a person in accordance with this section for the purpose of enforcing an obligation imposed on that person by an authorised officer in the exercise, in a Digital Services investigation, of any power conferred on the authorised officer bysection 139ZK.

(2) Where it appears to an authorised officer to be necessary to impose a daily payment penalty on a person, the authorised officer may give the person a notice in writing which—

(a) specifies the obligation referred to insubsection (1)in respect of which the notice is given,

(b) gives the person all relevant information relating to the obligation,

(c) states the date by which the person must comply with the obligation,

(d) states that, if the person fails to comply with the obligation by that date, the authorised officer intends to refer the matter to the Commission for a decision whether to impose a daily payment penalty on the person, for each day during which the failure continues, beginning with the day following that date,

(e) states why it appears to the authorised officer to be necessary to impose the penalty,

(f) states the maximum daily amount of the penalty that the Commission may impose, and

(g) invites the person 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.

(3) The date specified undersubsection (2)(c)may not be earlier than the date on which the notice undersubsection (2)is given.

(4) The amount of a penalty imposed under this section on a person for each day, during which the failure referred to insubsection (2)(d)continues, shall not exceed 5 per cent of the person’s average daily income or turnover in the preceding financial year.

(5) Where it appears to an authorised officer that the person to whom a notice undersubsection (2)has been given has failed to comply with the obligation specified in the notice by the date specified undersubsection (2)(c), the authorised officer may refer the matter to the Commission.

(6) Where a matter is referred to the Commission undersubsection (5)and it appears to the Commission, after considering any written submissions made by the person to whom the notice undersubsection (2)was given within the period specified in accordance withsubsection (2)(g), that it is necessary to impose a daily payment penalty on the person for the purpose of enforcing the obligation specified in the notice, the Commission 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 person, impose the penalty.

(7) 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 Commissioners, not being less than 3, as the Commission may determine.

(8) If the person who gave the direction undersection 139ZIfor the investigation referred to insubsection (1)to be carried out is a Commissioner, the division exercising functions under this section shall not include that Commissioner.

(9) A decision of the Commission to impose a daily payment penalty does not take effect unless it is confirmed on appeal undersection 139ZXor on summary application undersection 139ZY, as those sections apply in accordance withsection 139ZZAA.]

139ZLB. F252[Power to require intermediary service provider to take interim measures.

139ZLB.—(1) Where in the course of a Digital Services investigation it appears to the Commission from information provided by an authorised officer—

(a) that there isprima facieevidence—

(i) that the inquiry subject has committed a contravention which is an infringement of the Digital Services Regulation, and

(ii) that the contravention is continuing,

(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 undersection 139ZS, 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.

(2) A notice undersubsection (1)shall—

(a) state the suspected contravention,

(b) state the grounds on which it appears to the Commission that there isprima facieevidence 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 undersection 139ZS.

(3) A notice undersubsection (1)ceases to have effect on the earliest of the following to occur:

(a) the taking of a decision undersection 139ZSin relation to the suspected contravention;

(b) the discontinuance of the investigation referred to insubsection (1);

(c) the revocation of the notice by the Commission.

(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 Commissioners, not being less than 3, as the Commission may determine.

(5) If the person who gave the direction undersection 139ZIfor the investigation referred to insubsection (1)to be carried out is a Commissioner, the division exercising functions under this section shall not include that Commissioner.

(6) A person who, without reasonable excuse, fails to comply with a notice undersubsection (1)shall be guilty of a category 1 offence.

(7) Where an offence has been committed undersubsection (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.

(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.

(9) Any proceedings, including summary proceedings, undersubsection (7)shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(10) Without prejudice tosubsection (6), a person who fails to comply with a notice undersubsection (1)may be liable to an administrative financial sanction in accordance with this Part.]

139ZM. F253[Report of authorised officer.

139ZM.—(1) As soon as is practicable after the completion of an investigationF254[pursuant to a direction undersection 139ZI(1)], the authorised officer shall prepare a draft report of the investigation.

(2) In preparing the draft report referred to insubsection (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 undersection 139ZJ(1), and any response made by theF255[inquiry subject]to that notice undersection 139ZJ(3),

(c) any relevant material or relevant equipment obtained in the course of the investigation in the exercise of powers undersection 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, underF255[section 139ZK,]

(e) any submissions made by any person during an oral hearing underF255[section 139ZK,]

F254[(f) in the case of a Digital Services investigation which is a joint investigation, anything of a similar nature to the material, equipment, statements, admissions and submissions referred to inparagraphs (c)to(e), obtained by any participating Member State Digital Services Coordinator or other Member State competent authority, and

(g) any views communicated by the European Commission under Article 59(3).]

(3) The authorised officer shall, as soon as is practicable after preparing the draft report, give theF255[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 theF255[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.

(4) The authorised officer shall, as soon as is practicable after the expiration of the period referred to insubsection (3)(d), and having considered any submissions made under that subsection, make any revisions to the draft report which, in the opinion of the authorised officer are warranted, and finalise the report.

(5) An authorised officer shall not make any recommendation, or express any opinion, in a draft report undersubsection (1)or in a final report undersubsection (4), as to whether an administrative financial sanction should be imposed undersection 139ZSin the event that the Commission is satisfied that theF255[inquiry subject]has committed a contravention, or as to the amount of any such sanction imposed.

(6) An authorised officer shall, as soon as is practicable after the draft report has been finalised undersubsection (4), provide a copy of the final report to theF255[and any views to whichsubsection (7A)applies to the inquiry subject.]

(7) An authorised officer shall, as soon as is practicable after the draft report has been finalised undersubsection (4), provide a copy of the final reportF255[any submissions made in accordance with a notice undersubsection (3)(d), and any views to whichsubsection (7A)applies], to the Commission.

F254[(7A) 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.]

(8) An authorised officer may provide a copy of the final report,F255[any submissions made in accordance with a notice undersubsection (3)(d), and any views to whichsubsection (7A)applies]to such other persons as he or she considers appropriate.

F255[(9) A person who receives a final report or any submissions or views undersubsection (8)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.]

(10) A person who without reasonable excuse contravenessubsection (9)shall be guilty of a category 1 offence.]

139ZMA. F256[Information about decision process following joint investigation to which Article 60 applies.

139ZMA.—In the case of an investigation pursuant to a direction undersection 139ZI(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 withsection 139ZM(6), inform the inquiry subject of the effect ofsection 139ZSA.]

139ZN. F257[Rules.

139ZN.—F258[(1) Subject to the provisions of this Part andSchedule 4, the Commission may make rules providing for the conduct of investigations under this Chapter, the exercise of powers undersection 139ZKas applied bysection 139ZKA, and the conduct of its proceedings underChapters 3and4.]

F258[(2) In making rules undersubsection (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 such powers, in particular the need to address conflicts of interest which may arise in investigations or proceedings or the exercise of powers.]

(3) The Commission shall publish rules made undersubsection (1)on a website maintained by it.]

139ZO. F259[Guidelines.

139ZO.—(1) The Commission may make guidelines with respect to the operation of this Chapter,Chapters 3and4,Schedule 4and any rules made undersection 139ZN.

(2) The Commission shall publish any guidelines made under this section, and any amendment to or revocation of those guidelines, on a website maintained by it.]

139ZP. F260[Conduct of investigations.

139ZP.—(1) Subject to the provisions of this Part andSchedule 4, any rules made undersection 139ZNand any guidelines made undersection 139ZO, an authorised officer may follow such procedures for theF261[conduct of an investigation, or the exercise of powers undersection 139ZKas applied bysection 139ZKA]as he or she considers appropriate.

(2) An authorised officer shall, in the conduct of an investigation, take reasonable steps to keep theF261[inquiry subject]informed as to the progress of the investigation.]

F262[Chapter 3

139ZQ.—(1) The functions of the Commission under this Chapter (except this subsection),Chapter 4(exceptsections 139ZY,139ZZand139ZZA), andSchedule 4shall, unless otherwise stated, be exercised by a division of the Commission consisting of such uneven number of Commissioners, not being less than 3, as the Commission may determine.

(2) If the person who directed an investigation be carried out undersection 139ZIis a Commissioner, the division exercising functions in relation to the investigation shall not include that Commissioner.]

139ZR. F263[Action by Commission after receiving report.

139ZR.—(1) After the authorised officer has complied withsubsections (6)and(7)ofsection 139ZMthe Commission shall, subject tosubsection (2), give theF264[inquiry subject]—

(a) a copy of this section, and

F264[(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 whichsection 139ZM(7A)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.]

(2) The Commission need not comply withsubsection (1)if it holds an oral hearing undersubsection (3)at which theF264[inquiry subject]may make submissions to it onF264[the final report and any views to whichsection 139ZM(7A)applies].

(3) The Commission shall at any time after the authorised officer has complied withsubsections (6)and(7)ofsection 139ZMconduct an oral hearing if it considers it necessary to do so in order for the procedures under this Part to operate fairly.

(4) The Commission may, at any time after the authorised officer has complied withsubsections (6)and(7)ofsection 139ZM, do any of the following that it considers necessary to resolve an issue of fact or otherwise enable it to make a decision undersection 139ZS:

(a) request theF264[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 underparagraph (b)F265[or in an oral hearing underparagraph (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 hearingF265[in accordance withSchedule 4].

(5) As soon as practicable after making a request undersubsection (4)(b), the Commission shall give theF264[inquiry subject]a copy of the request.

(6) As soon as practicable after receiving any information pursuant to a request undersubsection (4)(b), the Commission shall give theF264[inquiry subject]—

(a) a copy of the information, and

(b) a notice in writing stating that theF264[inquiry subject]may make submissions in writing to the Commission on the information within the period of 20 working days from the date theF264[inquiry subject]receives the notice, or such further period as the Commission may allow.

F265[(6A) Where, after the authorised officer has complied withsubsections (6)and(7)ofsection 139ZM, 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.

(6B) Where an investigation is reopened in accordance withsubsection (6A)(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.]

(7) A person who receives a copy of a report, or of part of a report, undersubsection (4)(c)shall not, without the prior authorisation of the Commission, disclose the existence or the content of the report to any other person.

(8) A person who without reasonable excuse—

(a) fails to comply with a request for further information undersubsection (4)(a)or(b), or

(b) contravenessubsection (7),

shall be guilty of a category 2 offence.

(9) A person who, in purported compliance with a request for further information undersubsection (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.

F265[(9A) Without prejudice tosubsections (8)and(9), a person may be liable to an administrative financial sanction in accordance with this Part if, in a case where the report referred to insubsection (1)(b)relates to a Digital Services investigation, the person—

(a) fails to comply with a request for further information undersubsection (4)(a)or(b),

(b) in purported compliance with a request for further information undersubsection (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 undersubsection (4)(a)or(b), or

(ii) any information which he or she has given to the Commission in purported compliance with a requirement undersubsection (4)(a)or(b)and which is false or misleading in a material respect.]

(10) A statement or admission made by a person pursuant to a request for further information undersubsection (4)(a)or(b), shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence undersubsection (9), and this shall be explained to the person in ordinary language by the Commission.]

139ZS. F266[Decision by Commission.

139ZS.—(1) The Commission shall decide, in respect of aF267[person]who is the subject of a report undersection 139ZM—

(a) whether or not it is satisfied on the balance of probabilities that theF267[person]has committed the contravention to which the investigation relates, and

(b) if so, whether or not to impose an administrative financial sanction.

(2) A decision undersubsection (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 undersection 139ZXor on summary application undersection 139ZY.

(3) For the purposes of making a decision undersubsection (1), the Commission shall consider—

F267[(a) the final report provided undersubsection (7)ofsection 139ZMand 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 undersection 139ZR,

(c) any information provided as a result of a request undersection 139ZR(4), and

(d) any submissions made pursuant to a notice undersubsection (1)or(6)ofsection 139ZR.

(4)F268[Other than wheresubsection (4A)applies, in deciding]undersubsection (1)(b)whether or not to impose an administrative financial sanction on aF267[person], the Commission shall have regard to the matters referred to inparagraphs (a),(b),(c),(d)(e),(g),(h),(i),(j)and(k)ofsection 139ZW(3).]

F269[(4A) Where a contravention falls withinparagraph (ba)of the definition of "contravention" insection 139ZG, in deciding whether or not to impose an administrative financial sanction on a hosting service provider, the Commission shall have regard to all relevant circumstances, including the following:

(a) the nature, gravity and duration of the contravention;