Broadcasting Act 2009

(d) represent the diversity of Irish culture and heritage,

(e) record oral Irish heritage and aspects of Irish heritage which are disappearing, under threat, or have not been previously recorded, and

(f) develop local and community broadcasting.

(2) The objective of a scheme in relation to the development of archiving of programme material produced in the State referred to in section 154 (1) (e) is to develop an integrated approach to the archiving of programme material, including the development of suitable storage processes and formats and the accessing of material by interested parties and reflecting the obligations of the Authority as set out in subsections (6), (7), (8) and (9) of section 69.

(3) The Authority, in preparing a scheme and in considering applications for funding, shall have regard to the objectives of a scheme.

155A.—...]

156. Amounts to be paid by Minister to scheme.

156.— (1) In this section “net receipts” in relation to the receipt of television licence fees, means the total receipts less any expenses in respect of those receipts certified by the Minister as having been incurred by him or her in that year in relation to the collection of the fees.

(2) The Minister, with the approval of the Minister for Finance, may pay to the Authority out of monies provided by the Oireachtas for the purposes of grants under a scheme and any administration of or reasonable expenses relating to a scheme, in respect of each financial year, an amount being equal to 7per cent of net receipts in that year in respect of television licence fees.

(3) The Minister, with the approval of the Minister for Finance, may from time to time pay to the Authority out of monies provided by the Oireachtas such an amount as he or she determines to be reasonable for the purposes of grants under a scheme and any administration of or reasonable expenses relating to a scheme.

157. Broadcasting fund.

157.— (1) The Authority shall F315[continue to maintain] a fund which shall be known as the Broadcasting Fund and is referred to in this Part as the “Fund”.

(2) The Fund shall be managed and controlled by the Authority and shall consist of a current account (“current account”) and an investment account (“investment account”).

(3) There shall be paid into the current account all monies paid to the Authority under section 156 (2) and (3) and there shall be paid out of the current account all monies in respect of expenditure by the Authority for the purposes of grants under, and any administration of or reasonable expenses relating to, a scheme duly approved under section 154.

(4) Monies standing to the credit of the current account and not required to meet current liabilities shall be paid into the investment account of the Fund.

(5) Whenever the monies in the current account of the Fund are not sufficient to meet the current liabilities of that account, there shall be paid into that account from the investment account of the Fund such monies as are necessary to meet those liabilities.

(6) Monies in the investment account of the Fund that are not required to meet current and prospective liabilities of that account shall be invested and the investments shall be realised or varied from time to time as occasion requires and the proceeds of any such realisation, and any income received in respect of monies invested under this subsection, shall be paid into the investment account of the Fund or invested under this subsection.

(7) The costs of administration of the Fund incurred by the Authority shall be defrayed from the resources of the Fund.

(8) The Authority shall keep all proper and usual accounts of all monies paid into the Fund and of all disbursements from the Fund including an income and expenditure account, cash-flow statement and balance sheet.

(9) As soon as may be after the end of each financial year of the Authority, the Authority shall submit the accounts of the Fund to the Comptroller and Auditor General for audit and the Minister shall cause a copy of an abstract of the accounts as so audited together with a copy of the report of the Comptroller and Auditor General thereon to be laid before each House of the Oireachtas.

(10) As soon as may be, but not later than 3 months, after the end of each financial year of the Authority, the Authority shall make a report, in such a manner as the Minister may direct, to the Minister with respect to the operation by it of the Fund during that financial year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

158. Reviews of scheme.

158.— (1) The Authority shall review the operation, effectiveness and impact of a scheme not later than 3 years from the passing of this Act, and every 3 years thereafter, or at such other time as may be requested by the Minister, and make a written report to the Minister on the review.

(2) A copy of a report under subsection (1) shall be laid by the Minister before each House of the Oireachtas, as soon as may be, after it has been made to him or her.

(3) The Minister shall publish (including publication by electronic means capable of being read in legible form) a report made to him or her under subsection (1).

159. Winding-up and dissolution of scheme.

159.— (1) The Minister may, with the consent of the Minister for Finance, direct the Authority to wind-up, where there is only one scheme, the scheme or, where there is more than one scheme, all schemes, and the Fund established under section 157 and to pay to the Minister any monies remaining in respect of the Fund. The Minister shall pay to RTÉ any such monies paid to him or her.

(2) Where the Minister directs that the scheme or all schemes, as the case may be, and the Fund be wound up in accordance with subsection (1), he or she shall upon being satisfied that the scheme has or the schemes have and the Fund has been wound up in accordance with that subsection, by order (in this section referred to as a “dissolution order”) dissolve the scheme or schemes and the Fund.

(3) Upon the commencement of a dissolution order no further scheme may be made under section 154.

(4) (a) A dissolution order shall be laid before each of the Houses of the Oireachtas as soon as practicable after it is made.

(b) Either House of the Oireachtas may, by resolution passed within 21 sitting days after the day on which a dissolution order was laid before it in accordance with paragraph (a), pass a resolution annulling the order.

(c) The annulment under paragraph (b) of a dissolution order takes effect immediately on the passing of the resolution concerned, but does not affect anything that was done under the order before the passing of the resolution.

F318[PART 10A European works

159A. Interpretation of European works.

159A.—(1) For the purposes of this Act, subject tosubsections (2)and(3), the following are European works:

(a) works originating in Member States;

(b) works originating in third countries that are European states party to the European Convention on Transfrontier Television of the Council of Europe done at Strasbourg on 5 May 1989;

(c) works that do not fall withinparagraph (a)or(b), that are co‑produced within the framework of agreements related to the audiovisual sector concluded between the European Union and third countries, and that fulfil the conditions defined in those agreements;

(d) works that do not fall withinparagraph (a),(b)or(c), and that are co-produced within the framework of bilateral co-production agreements concluded between Member States and third countries, provided that—

(i) the co-producers from the Member States supply a majority share of the total cost of production, and

(ii) the production is not controlled by one or more co-producers established in a third country.

(2)Subsection (1)(b)and(c)do not apply in the case of a third country if works originating in Member States are the subject of discriminatory measures in that country.

(3) A work falls withinparagraph (a)or(b)ofsubsection (1)only if it is mainly made with authors and workers residing in one or more of the states referred to in those paragraphs and meets one of the conditions insubsections (4)to(6).

(4) The first condition is that the work is made by one or more producers established in one or more of those states.

(5) The second condition is that the production of the work is supervised and controlled by one or more producers established in one or more of those states.

(6) The third condition is that there are co-producers, including one or more established outside those states, but—

(a) the contribution of co-producers established in those states to the total co-production costs is preponderant, and

(b) the co-production is not controlled by one or more co-producers established outside those states.

(7) In this section,“third country”means a state other than a Member State.]

159B. F319[Share of European works.

159B.—(1) A media service provider under the jurisdiction of the State shall not provide an audiovisual on-demand media service with a catalogue in which the share of European works is less than 30 per cent.

(2)Subsection (1)does not apply to—

(a) a media service provider with a low turnover or low audience, or

(b) a service exempted by rules undersection 159I.

(3) The Commission shall make rules for determining—

(a) for the purposes ofsubsection (1), whether an audiovisual on‑demand media service has a catalogue in which the share of European works is less than 30 per cent, and

(b) for the purposes ofsubsection (2)(a), whether a media service provider has a low turnover or low audience.

(4) In making rules undersubsection (3), the Commission shall have regard to—

(a) any guidelines issued by the European Commission in accordance with Article 13(7) of the Directive, and

(b) any relevant reports produced by theF320[European Board for Media Services established under Article 8 of EMFA].

(5) In making rules undersubsection (3)(b), the Commission shall have regard to any relevant characteristics of the market in which a media service provider under the jurisdiction of the State provides an audiovisual on-demand media service, including—

(a) the turnover of the provider from the service in the market, as a proportion of the total turnover of providers of audiovisual on‑demand media services from those services in the market, and

(b) the number of audience members of the service in the market, as a proportion of the total number of audience members for audiovisual on-demand media services in the market.

(6) The Commission may make rules prescribing records a provider must keep and any other action a provider must take to enable compliance with the requirement insubsection (1)to be assessed.

(7) A failure to comply withsubsection (1)or any rules made undersubsection (6)is a contravention for the purposes ofPart 8B.]

159C. F321[Prominence of European works.

159C.—(1) A media service provider under the jurisdiction of the State which provides an audiovisual on-demand media service shall take any steps required by rules under this section to ensure prominence of European works in any catalogue of that service.

(2)Subsection (1)does not apply to—

(a) a media service provider with a low turnover or low audience, or

(b) a service exempted by rules undersection 159I.

(3) The Commission shall make rules setting out the steps that media service providers must take for the purposes ofsubsection (1).

(4) Without prejudice to the generality ofsubsection (3), the steps required by the rules referred to insubsection (3)may relate to:

(a) the visibility and presentation of European works within a catalogue;

(b) the inclusion of information in a catalogue in relation to whether or not a work is a European work, and the placement of that information;

(c) the accessibility of European works within a catalogue, including the configuration of search tools;

(d) references to European works in advertising for the service;

(e) the promotion of minimum percentages of European works within a catalogue to the audience of the service, and the means to be used for such promotion.

(5) In making rules undersubsection (3), the Commission shall have regard to—

(a) the objective of cultural diversity,

(b) the desirability of providing European works to the widest possible audience,

(c) technological developments,

(d) developments in audiovisual on-demand media service markets, and

(e) any relevant reports produced by theF322[European Board for Media Services established under Article 8 of EMFA].

(6) The Commission may make rules prescribing records a provider must keep and any other action a provider must take to enable compliance with the requirement insubsection (1)to be assessed.

(7) Rules made undersection 159B(3)(b)shall apply for the purposes ofsubsection (2)(a).

(8) A failure to comply withsubsection (1)or any rules made undersubsection (3)or(6), is a contravention for the purposes ofPart 8B.]

159D.

F323[Reporting.

159D.—(1) The Commission shall report to the Minister annually on the operation ofsections 159Band159C.

(2) The Minister may specify the form and contents of a report referred to insubsection (1).]

159E. F324[European works levy.

159E.—(1) The Commission may, for the purposes of funding a scheme made undersection 159F, make an order imposing a levy on the media service providers referred to insubsection (2), or on any class of those providers.

(2) The providers mentioned insubsection (1)are media service providers and—

(a) are under the jurisdiction of the State, or

(b) target audiences in the State and are established in another Member State in accordance withsection 2A(2).

(3) A levy order may provide for the collection, payment and administration of a levy, including:

(a) the method of calculation of the levy;

(b) the period in respect of which the levy is imposed;

(c) the times at which payment is to be made and the form of payment;

(d) the records which a provider must keep and make available to the Commission;

(e) exemptions from the levy, deferrals of payment of the levy or refunds of the levy;

(f) the consideration of applications by providers for review of decisions under the order.

(4) In the case of a media service provider that is under the jurisdiction of the State and targets audiences in another Member State, the method of calculation of a levy shall take into account any financial contribution imposed on the provider by that Member State.

(5) In the case of a media service provider which targets audiences in the State and is established in another Member State in accordance withsection 2A(2)—

(a) the method of calculation of a levy shall be based on the revenue earned by the provider in the State from any audiovisual media service which it provides there, and

(b) the levy shall be proportionate and non-discriminatory.

(6) A levy shall not apply to a media service provider—

(a) with a low audience or a low turnover, in accordance with any rules made undersection 159B(3)(b), or

(b) in respect of a service exempted under any rules made undersection 159I.

(7) Where a levy imposed on a media service provider remains unpaid, in whole or in part, the levy or part of the levy may be recovered by the Commission as a simple contract debt in any court of competent jurisdiction.

(8) In this section andsection 159F—

“levy”means a levy imposed by a levy order;

“levy order”means an order made undersubsection (1).]

159F. F325[European works scheme.

159F.—(1) The Commission, following consultation with Fís Éireann, may prepare a scheme for funds to be granted, out of the proceeds of any levy, to provide support for the production of European works included, or to be included, in the programme schedule of an audiovisual broadcasting service, or in a catalogue of an audiovisual on-demand media service.

(2) The kinds of support for which funds may be granted under a scheme shall be support of such of the following, or such classes or descriptions of any of the following, as the scheme may specify:

(a) new audiovisual programmes relating to—

(i) Irish culture, language, history, heritage, society and sport,

(ii) the experiences of the people of the island of Ireland, including the experiences of people of Irish ancestry living abroad,

(iii) environmental sustainability, biodiversity, and climate change,

(iv) human rights, equality, diversity and inclusion,

(v) news, current affairs and international affairs,

(vi) science, or

(vii) education;

(b) new audiovisual programmes to—

(i) improve adult literacy, or

(ii) improve media literacy;

(c) incidental, supplementary or consequential measures that appear to the Commission to be necessary to support programmes referred to inparagraph (a)or(b);

(d) any activity in the development of programmes referred to inparagraph (a)or(b)or of measures referred to inparagraph (c).

(3) A scheme may in particular:

(a) specify the kind of support for which funds may be granted by reference to the nature or subject matter of programmes withinparagraph (a)or(b)ofsubsection (2);

(b) limit support for which funds may be granted in a particular period to support of specified kinds;

(c) impose requirements as to the time within which programmes in relation to which funds have been granted are to be made available in the schedule of an audiovisual broadcasting service or in a catalogue of an audiovisual on-demand media service;

(d) impose requirements as to such services or as to how such programmes are to be made available on them, which may include requirements to ensure that such services are, or include, services—

(i) that are so far as practicable available in the whole of the State, and

(ii) on which the programmes concerned are made available without charge to the viewer.

(4) A scheme shall allocate—

(a) not less than 25 per cent of its annual funds to programmes in the Irish language that fall withinparagraph (a)or(b)ofsubsection (2), and

(b) not less than 80 per cent of its annual funds to programmes that fall withinparagraph (a)or(b)ofsubsection (2), the producers of which are independent producers for the purposes of the scheme.

(5) A scheme shall include provision for determining whether the producer of a programme is an independent producer, and for the purpose of making such provision the Commission may have regard to the following matters:

(a) the ownership structure of the person that produces the programme;

(b) the amount of programmes supplied by the person who produces the programme to the same media service provider;

(c) the ownership of the rights to broadcast the programme or make it available in a catalogue of an audiovisual on-demand media service, or otherwise use the programme for a commercial purpose;

(d) such other matters as it considers appropriate.

(6) If the Minister directs it to do so, the Commission shall prepare a scheme specifying in accordance withsubsection (2)any kind of support the Minister directs.

(7) A scheme may provide for:

(a) applications for a grant of funding;

(b) the terms and conditions upon which funds are granted;

(c) the records a provider which receives funding must keep and make available to the Commission.

(8) In preparing a scheme, the Commission shall have regard to the need to—

(a) ensure understanding and enjoyment of new audiovisual programmes by people with disabilities,

(b) support the development of new audiovisual programmes of interest to children, and to young people under the age of 25 years, and

(c) encourage the development of community broadcasters, including development as regards audiovisual on-demand media services provided by such broadcasters.

(9) In this section, andsections 159Gand159H,“scheme”means a scheme prepared undersubsection (1).]

159G. F326[Procedure for making schemes under section 159F.

159G.—(1) The Commission shall submit a scheme to the Minister for approval.

(2) The Minister shall consider a scheme submitted to him or her, and may—

(a) approve the scheme,

(b) refuse to approve the scheme,

(c) direct the Commission to reconsider the scheme, or

(d) direct the Commission to resubmit the scheme with such amendments as the Commission thinks fit.

(3) Where a scheme is approved by the Minister undersubsection (2)(a), the Commission shall, as soon as is practicable after the approval, make the scheme.

(4) The Commission shall administer a scheme approved by the Minister undersubsection (2)(a)in accordance with its terms.

(5) The Commission may prepare amendments to a scheme approved by the Minister undersubsection (2)(a), andsubsections (1)to(4)andsection 159Japply to amendments to such a scheme as they apply to a scheme.

(6) The Minister may, in respect of a scheme approved undersubsection (2)(a), direct the Commission to—

(a) review the scheme, and prepare and submit to the Minister any amendments to the scheme the Commission thinks fit, or

(b) revoke the scheme.

(7) The Commission shall comply with a direction underparagraph (c)or(d)ofsubsection (2), orsubsection (6).]

159H. F327[Designation of Fís Éireann for the purpose of making a European works scheme.

159H.—(1) The Minister may, where he or she considers it appropriate to do so, by order provide that Fís Éireann may prepare a scheme undersection 159F(1), subject to any restriction in the order as to the kinds of support for which funds may be granted under such a scheme.

(2) Where an order is made undersubsection (1),sections 159Fand159Gshall apply to the preparation and making of a scheme by Fís Éireann subject to any restriction referred to insubsection (1)and the modification—

(a) that references in those sections to the Commission shall be construed as references to Fís Éireann, and

(b) insection 159F(1), that“following consultation with the Commission”shall be substituted for“following consultation with Fís Éireann”.

(3) Where the Minister makes an order undersubsection (1), he or she may direct the Commission to pay such monies collected out of the levy referred to insection 159Eto Fís Éireann for the purposes of funding a scheme prepared by Fís Éireann as he or she considers appropriate, and the Commission shall comply with such a direction.]

159I. F328[Exemptions for particular services.

159I.—(1) The Commission may make rules providing that the obligations insection 159B(1)or159C(1)shall not apply to an audiovisual on‑demand media service, or that a levy undersection 159Eshall not apply to a media service provider in respect of an audiovisual media service, where it would be impracticable or unjustified by reason of the nature of the service, or the general theme of audiovisual programmes provided by the service, to impose those obligations.

(2) In making rules undersubsection (1), the Commission shall have regard to whether an audiovisual media service provides audiovisual programmes—

(a) dealing with a narrow subject matter which may not be of general interest to an audience, or

(b) which may impair the physical, mental or moral development of children, including gratuitous violence and pornography.]

159J. F329[Laying of rules, orders and schemes.

159J.—(1) Any rule, order or scheme made under this Part shall be laid by the Commission, or in the case of a scheme made by Fís Éireann in accordance withsection 159H, by Fís Éireann before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the rule, order or scheme is passed by either such House within the next 21 days on which that House sits after the rule, order or scheme is laid before it, the rule, order or scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.]

PART 11 Major Events Television Coverage

160. Definitions (Part 11).

160.— (1) In this Part—

“broadcaster” has the meaning assigned to it in the F330[Directive];

“designated” means designated by a designation order;

“designation order” means an order under section 162;

“event” means an event of interest to the general public in the European Union, a Member State or in the State or in a significant part of the State that is organised by an event organiser who is legally entitled to sell the broadcasting rights to the event and includes the whole event or where part of it has already taken place the remainder;

“event organiser” means the person who is legally entitled to sell the rights to the event;

“free television service” means a television broadcasting service for the reception of which no charge is made at anytime by the person providing the service, and which is available on a free-to-air basis;

“near universal coverage” means—

(a) free television service, reception of which is available to at least 95 per cent of the population of the State, or

(b) if at any time fewer than three broadcasters are able to provide the coverage required under paragraph (a), free television service, reception of which is available to at least 90 per cent of the population of the State;

“qualifying broadcaster” means a broadcaster who is deemed under subsection (2) to be a qualifying broadcaster;

“rights” in relation to the broadcast of a designated event, means the exclusive or non-exclusive rights to broadcast the event;

“television broadcasting” has the meaning assigned in the F330[Directive].

(2) A broadcaster who provides near universal coverage of a designated event is deemed to be a qualifying broadcaster.

(3) For the purpose of subsection (2), two or more broadcasters who enter into a contract or arrangement to jointly provide near universal coverage of a designated event shall be deemed to be a single broadcaster with respect to that event.

(4) A broadcaster may request the Minister to resolve any dispute as to the extent of a free television service being provided by a broadcaster in the State for the purpose of subsection (2) and the definition of “near universal coverage” in subsection (1).

(5) The Minister may consult with any technical experts or other persons or bodies he or she considers appropriate before resolving a dispute under subsection (4).

161. Application.

161.— This Part applies to a designated event which is designated, before or after 22 April 2003, whether or not any agreement or arrangement has been entered into between the event organiser and a broadcaster in respect of the acquisition by the broadcaster of rights to the event, and where such an agreement or arrangement has been entered into before 22 April 2003, in respect of those rights, it was entered into after the publication of the Council Directive concerning an event which takes place after 13 November 1999 (being the date Article 3j of the Council Directive was given effect to by this Part).

162. Designation of major events.

162.— (1) The Minister may by order—

(a) designate events as events of major importance to society for which the right of a qualifying broadcaster to provide coverage on free television services should be provided in the public interest, and

(b) determine whether coverage on free television services of an event designated under paragraph (a) should be available—

(i) on a live, deferred or both live and deferred basis, and

(ii) in whole, in part or both in whole and in part.

(2) The Minister shall have regard to all the circumstances and in particular each of the following criteria in making a designation under subsection (1) (a):

(a) the extent to which the event has a special general resonance for the people of Ireland, and

(b) the extent to which the event has a generally recognised distinct cultural importance for the people of Ireland.

(3) In order to determine the extent to which the criteria in subsection (2) have been met, the following factors may be taken into account by the Minister:

(a) whether the event involves participation by a national or non-national team or by Irish persons;

(b) past practice or experience with regard to television coverage of the event or similar events.

(4) The Minister shall consider the following in making the determination under subsection (1) (b):

(a) the nature of the event,

(b) the time within the State at which the event takes place, and

(c) practical broadcasting considerations.

(5) The Minister shall consult with F331[such Minister or Ministers of the Government as he or she considers appropriate] before making, revoking or amending an order under this section.

(6) Where it is proposed to make, revoke or amend an order under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each House.

(7) On the passing of this Act any order made under section 2 of the Broadcasting (Major Events Television Coverage) Act 1999 which is in force on such passing continues and is deemed to have been made under this section.

163. Consultation.

163.— (1) Before making a designation order, the Minister shall—

(a) make reasonable efforts to consult with the organisers of the event and with broadcasters who are under the jurisdiction of the State F332[…],

(b) publish a notice of the event which the Minister intends to designate under that section on a website maintained by him or her and where appropriate in a newspaper circulating in the State, and

(c) invite comments on the intended designation from members of the public.

(2) The inability to establish who is the organiser of an event or the failure of the organiser or a broadcaster under the jurisdiction of the State to respond to the Minister’s efforts to consult shall not preclude the making of a designation order.

164. Broadcasters’ duties with respect to designated events.

164.— (1) Where a broadcaster under the jurisdiction of the State who is not a qualifying broadcaster acquires exclusive rights to broadcast a designated event, that broadcaster shall not broadcast the event unless the event has been made available to a qualifying broadcaster, in accordance with the designation order concerned, on request and the payment of reasonable market rates by the qualifying broadcaster.

(2) Where a qualifying broadcaster acquires the right to broadcast a designated event (under this section or directly) the qualifying broadcaster shall broadcast the event on a free television service providing near universal coverage in accordance with the designation order concerned.

(3) In this section, “designated event” means an event that is designated in a designation order.

165. Broadcasters’ duties with respect to Member State events.

165.— Where another Member State has designated an event as being of major importance to society in that Member State and the European Commission has communicated the measures taken by that Member State in accordance with F333[Article 14(2) of the Directive], no broadcaster under the jurisdiction of the State who acquires exclusive rights to the designated event shall exercise the exclusive rights in such a way that a substantial portion of the public in that Member State is deprived of the possibility of following the events in accordance with the measures taken.

166. Civil remedies.

166.— (1) Where it is alleged by a broadcaster (the “aggrieved broadcaster”) that any activity or conduct prohibited by section 164 or 165 is being, has been or is about to be carried on by one or more other broadcasters (the “other broadcaster”), the aggrieved broadcaster shall be entitled to apply to the High Court for the following remedies against the other broadcaster:

(a) an order restraining the other broadcaster from carrying on or attempting to carry on the activity or conduct prohibited by section 164 or 165;

(b) a declaration that the contract under which the other broadcaster received exclusive rights to the designated event is void;

(c) damages from the other broadcaster;

(d) a direction that the right to provide television coverage of the event shall be offered to the aggrieved broadcaster at reasonable market rates.

(2) An application to the High Court for an order referred to in subsection (1) shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order as it considers appropriate.

167. Reasonable market rates.

167.— (1) For the purpose of section 164 (1), if broadcasters are unable to agree on what constitutes reasonable market rates with respect to television coverage of an event, either of the broadcasters may apply to the High Court in a summary manner for an order determining reasonable market rates for an event.

(2) An order under subsection (1) may contain such consequential or supplementary provisions as the High Court considers appropriate.

168. Qualifying broadcaster may apply to High Court to obtain rights from event organiser to provide coverage of designated event on free television services in State, etc.

168.— (1) Where an event has been designated, and if within 56 days, or such other lesser or greater period which the Minister directs, before the event or a part of it takes place the event organiser has not made an agreement or arrangement with a qualifying broadcaster to enable it to provide coverage on free television services in the State of the event or part of it, as determined under section 162 (1) (b) in the designation order which designated the event—

(a) subject to subsection (3), a qualifying broadcaster may apply to the High Court in a summary manner for an order directing the event organiser to give rights to the qualifying broadcaster to provide such coverage and upon such terms as are fixed by the High Court, including the fixing of reasonable market rates, in respect of the acquisition of the rights, or

(b) within that period a qualifying broadcaster has not so applied, the event organiser may apply to the High Court in a summary manner to request the High Court to invite qualifying broadcasters to make such an application.

(2) Subject to subsection (3), the High Court may, on application to it under subsection (1) by a qualifying broadcaster, direct the event organiser, upon such terms as to the Court appears just and proper, to give to the qualifying broadcaster rights to provide coverage of the designated event or part of it on free television services, as determined under section 162 (1) (b) in the designation order which designated the event, notwithstanding that all of the terms for the acquisition of the rights to provide coverage under subsection (1), have not yet been fixed by it, including the fixing of reasonable market rates.

(3) Subsection (1) does not apply where an event organiser decides, prior to the making of an application under subsection (1), not to allow coverage of an event or a part of it, as determined under section 162(1)(b) in the designation order designating the event, on any television service provided by a broadcaster. Where an event organiser has so decided, the event organiser must notify, as soon as possible, the Minister.

(4) The High Court in fixing the terms under subsection (1) may, in arriving at a computation of reasonable market rates, to be paid by a qualifying broadcaster for the acquisition of the rights under that subsection, refer the computation of the rates to an arbitrator appointed by the High Court. The arbitrator shall report to the Court and the parties, by way of issuing an award, setting out the amount that he or she decides are reasonable market rates.

(5) An arbitration under subsection (4) shall be conducted in accordance with such procedures as are determined by the Court referring the computation of the rates to the arbitrator. The Court may, in determining such procedures, give such directions as it considers just and proper for the processing of the arbitration, including fixing the period within which the award of the arbitrator is to be issued.

(6) Where in an application under subsection (1)—

(a) the High Court has fixed the reasonable market rates, or an arbitrator has issued an award under subsection (4), and prior to the High Court making a final order in respect of the application, or

(b) in the circumstances referred to in subsection (2), the High Court indicates that it will fix the reasonable market rates for coverage of the event after the event has taken place, and prior to the event taking place,

the qualifying broadcaster may withdraw the application. The High Court may in these circumstances, having regard to the intention of the broadcaster making the application, award such costs to such party or parties to the application as it considers appropriate.

(7) The High Court may, either of its own motion or on application to it by an arbitrator appointed under subsection (4), give, from time to time, such directions in connection with the arbitration as it considers just and proper.

(8) Where more than one qualifying broadcaster applies under subsection (1) for rights to provide coverage of a designated event or part of it and the High Court has fixed under this section the terms upon which a qualifying broadcaster may obtain the rights, the event organiser may choose to which qualifying broadcaster it gives the rights.

(9) Where there is an existing contract in respect of an event or part of it between the event organiser and another broadcaster, who is not a qualifying broadcaster, the High Court in an application to it under subsection (1) shall decide to whom and in which proportions monies in respect of the reasonable market rates, fixed under this section in respect of the acquisition of rights to the event or part of it, should be paid.

(10) The High Court may, if it considers it necessary, for the purposes of exercising its powers under this section, adjust an existing agreement or arrangement, in respect of rights to a designated event or a part of it, between the event organiser and a broadcaster, who is not a qualifying broadcaster.

(11) Without prejudice to subsection (2), when considering any matter under this section, the High Court may make such interim or interlocutory order as it considers appropriate.

169. Arbitration in respect of reasonable market rates where event organiser is willing to sell broadcasting rights to designated event to qualifying broadcaster.

169.— (1) Where an event organiser is willing to sell rights enabling a qualifying broadcaster to provide coverage on free television services in the State of a designated event or a part of it, as determined under section 162 (1) (b) in the designation order which designated the event, but the qualifying broadcaster and the event organiser have not agreed the amount to be paid in respect of the acquisition of the rights, the following provisions of this section apply.

(2) The qualifying broadcaster or the event organiser may request the other to agree to the appointment of an arbitrator for the purposes of fixing reasonable market rates for the acquisition of the rights referred to in subsection (1). In default of agreement, on the appointment of an arbitrator by the parties, the Minister may appoint an arbitrator, who he or she considers to be suitably qualified in this regard, within 21 days of being notified by either party of such default.

(3) An arbitrator appointed under subsection (2) shall issue his or her award, in writing, which, subject to subsection (4), shall be a provisional award. The arbitrator shall notify the parties concerned of the award.

(4) An award issued under subsection (3) is not binding on the qualifying broadcaster concerned unless, within the period of 21 days from the date of issuing of the award of the arbitrator under subsection (3), the qualifying broadcaster has notified the event organiser concerned of the qualifying broadcaster’s acceptance of the award.

170. Criteria for determining reasonable market rates.

170.— In determining that which constitutes reasonable market rates or terms for the purposes of this Act, the High Court or an arbitrator shall have regard to, inter alia—

(a) previous fees (if any) for the event or similar events,

(b) time of day for live coverage of the event,

(c) the period for which rights are offered,

(d) the revenue potential associated with the live or deferred coverage of the event,

(e) the purposes of F334[Article 14 of the Directive] and the rights conferred on Member States of the European Communities to regulate the exercise of broadcasting rights, and

(f) such other matters as may appear to be relevant.

171. Obligation to give copy of agreement or arrangement to broadcasting rights to Minister.

171.— (1) The Minister may, where he or she considers it is in the public interest, direct an event organiser who has entered into an agreement or arrangement with a broadcaster in respect of the broadcasting rights to a designated event to give to the Minister, at the Department of Communications, Energy and Natural Resources, within such period specified in the direction, a copy of the agreement or arrangement.

(2) Where an agreement or arrangement referred to in subsection (1) is not in writing, the event organiser must, upon receiving a direction of the Minister, notify the Minister of the agreement or arrangement and set out all its terms and conditions.

172. Service of directions and notification.

172.— (1) Where a direction or notification is required under this Part to be given to a person, it shall be in writing, addressed to the person and given to the person in one of the following ways—

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily carries on business,

(c) by sending it by post in a pre-paid registered letter addressed to the person at the address at which the person ordinarily carries on business,

(d) if an address for the service of directions or notifications has been furnished by the person, by leaving it at, or sending it by pre-paid registered post addressed to the person at that address,

(e) in any case where the person giving the direction or notification considers that the immediate giving of it is required, by sending it, by means of electronic mail or a facsimile machine, to a device or facility for the reception of electronic mail or facsimiles located at the address at which the person ordinarily carries on business or, if an address for the service of directions or notifications has been furnished by the person, that address, but only if—

(i) the sender’s—

(I) facility for the reception of electronic mail generates a message confirming a receipt of the electronic mail, or

(II) facsimile machine generates a message confirming successful transmission of the total number of pages of the direction or notification,

and

(ii) the direction or notification is also given in one of the other ways mentioned in any of the preceding paragraphs.

(2) For the purposes of this section—

(a) a company registered under the Companies Acts is deemed to carry on business at its registered office, and every other body corporate and unincorporated body is deemed to carry on business at its principal office or place of business, and

(b) the Minister is deemed to carry on business at the Department of Communications, Energy and Natural Resources.

173. Review of designated events.

173.— (1) Subject to subsection (2), the Minister shall review, from time to time, designated events and the designation of events under section 162.

(2) A review under subsection (1) shall be not later than 3 years after the preceding review under section 9 of the Broadcasting (Major Events Television Coverage) (Amendment) Act 2003 and every 3 years after that.

PART 12 Transitional Provisions

174. Dissolution of BCI and saver.

174.— F335[…]

175. Dissolution of BCC and saver.

175.— F336[…]

176. Transitional provisions — BCI.

176.— F337[…]

177. Transitional provisions — BCC.

177.— F338[…]

178. Final accounts of BCI.

178.— F339[…]

179. Continuance of Ministerial consents given in respect of public service broadcasters.

179.— F340[…]

PART 13 Wireless Telegraphy

180. Collective citations — Wireless Telegraphy Acts.

180.— (1) The Wireless Telegraphy Acts 1926 to 1988 and sections 181(1) to (7) and (9) and section 182 may be cited together as the Wireless Telegraphy Acts 1926 to 2009.

(2) The Broadcasting (Offences) Acts 1968 and 1988, sections 9 to 16 of the Broadcasting Act 1990 and section 181(8), (10) and (11) may be cited together as the Broadcasting (Offences) Acts 1968 to 2009.

181. Amendment of Broadcasting and Wireless Telegraphy Acts (increase of fines, etc.).

181.— (1) Section 2 of the Act of 1926 is amended—

(a) by substituting for the definition of “the appropriate authority” (inserted by Part 1 of Schedule 1 of the Act of 2007) the following:

“except as provided by section 9, ‘appropriate authority’—

(a) in relation to wireless telegraphy apparatus in ships and vessels associated with safety and security on board them and their operation (including the certificates of competency for the operation of apparatus for wireless telegraphy on ships and vessels), means the Minister for Transport, and

(b) in relation to any other matter, means the Commission;”,

(b) by deleting the definition of “broadcast matter”, and

(c) by inserting after the definition of “signalling station” the following:

“ ‘television set’ has the meaning assigned to it by section 140 of the Broadcasting Act 2009.”.

(2) Section 3 of the Act of 1926 is amended by substituting for subsection (3) (inserted by section 12(1)(a) of the Act of 1988) the following:

“(3) A person who keeps, has in his or her possession, installs, maintains, works or uses any apparatus (other than a television set) in contravention of this section commits an offence and is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”.

(3) Section 10 of the Act of 1926 is amended in subsection (8) (inserted by section 12(1)(d)(ii) of the Act of 1988) by substituting for paragraphs (a) and (b) the following:

“(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”.

(4) Section 11 of the Act of 1926 is amended in subsection (3) (inserted by section 12(1)(f) of the Act of 1988) by substituting—

(a) in paragraph (a) “€5,000” for “one thousand pounds”, and

(b) in paragraph (b) “€250,000” for “twenty thousand pounds”.

(5) Section 12 of the Act of 1926 is amended in subsection (1) (as amended by section 34(e) of the Broadcasting Authority Act 1960) by substituting “under the Broadcasting Act 2009” for “under Part II of this Act or under the Broadcasting Authority Act, 1960”.

(6) Section 12 of the Act of 1926 is amended in subsection (3) (as amended by section 12(1)(g) of the Act of 1988) by substituting for paragraphs (a) and (b) the following:

“(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”.

(7) Section 12A of the Act of 1926 is amended by substituting for subsection (12) (inserted by section 12(1)(h) of the Act of 1988) the following:

“(12) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”.

(8) Section 7(1) of the Broadcasting (Offences) Act 1968 is amended by substituting—

(a) in paragraph(a) “€5,000” for “£1,000” (inserted by section 18 of the Act of 1988), and

(b) in paragraph(b) “€250,000” for “£20,000” (inserted by that section).

(9) Section 10 of the Act of 1972 is amended—

(a) in subsection (1), by substituting for paragraph (a) the following:

“(a) without reasonable cause or excuse, fails to comply with a requirement of an order under section 5, or”,

(b) in subsection (3) (as amended by section 12(2)(a) of the Act of 1988) by substituting—

(i) in paragraph(a), “€2,000” for “five hundred pounds”, and

(ii) in paragraph(b), “€5,000” for “one thousand pounds”, and

(c) in subsection (4)(a) (inserted by section 12(2)(b) of the Act of 1988) by substituting for subparagraph (i) the following:

“(i) A person guilty of an offence under subsection (2) is liable—

(I) on summary conviction, to a fine not exceeding €5,000, or

(II) on conviction on indictment, to a fine not exceeding €250,000.”.

(10) The Act of 1988 is amended—

(a) in section 6, by substituting for subsection (1) the following:

“(1) A person guilty of an offence under section 3, 4 or 5 is liable—

(a) on summary conviction, to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”,

(b) in section 8, by substituting “€5,000” for “£1,000”,

(c) in section 9, by substituting for subsection (4) the following:

“(4) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000.”.

(11) Section 11 of the Broadcasting Act 1990 is amended by substituting for subsection (1) the following:

“(1) A person guilty of an offence under section 9 or 10 is liable—

(a) on summary conviction to a fine not exceeding €5,000, or

(b) on conviction on indictment, to a fine not exceeding €250,000.”.

182. Matters relating to wireless telegraphy.

182.— The Act of 1926 is amended by substituting for sections 5 to 9 the sections set out in Schedule 2.

PART 14 Miscellaneous

183. Amendment to definitions in Copyright and Related Rights Act 2000.

183.— Section 2 of the Copyright and Related Rights Act 2000 is amended—

(a) by substituting for the definition of “broadcast” the following:

“ ‘broadcast’ means a transmission by wireless means, including by terrestrial or satellite means, whether digital or analogue, for direct public reception or for presentation to members of the public of sounds, images or data or any combination of sounds, images or data, or the representations thereof, but does not include transmission by means of MMDS or digital terrestrial retransmission;”,

(b) in the definition of “cable programme service” by substituting “including MMDS and digital terrestrial retransmission” for “including MMDS”,

(c) by inserting after the definition of “database” the following:

“ ‘digital terrestrial retransmission’ means the reception and immediate retransmission on an encrypted basis without alteration by means of a multiplex of a broadcast or a cable programme initially transmitted from another Member State of the EEA;”,

and

(d) by inserting after the definition of “MMDS” the following:

“ ‘multiplex’ has the meaning assigned to it in section 129 of the Broadcasting Act 2009;”.

184. Minister’s functions in relation to electronic communications networks and electronic communications services.

184.— (1) Without prejudice to the Minister’s functions under this or any other enactment, the Minister has the power and is deemed always to have had the power, by himself or herself, or in conjunction with any other person, to fund, install, own and operate electronic communications networks and to provide electronic communications services, including where such networks or services are for the purpose of providing broadcasting services.

(2) The Minister has all such incidental, supplemental, ancillary and consequential powers as are necessary or expedient for the purpose of the exercise by him or her of the above powers.

(3) The exercise of the powers referred to in subsections (1) and (2) is subject to all requirements otherwise imposed by law.

(4) The powers referred to in subsections (1) and (2) are in addition to and not in substitution for any other powers or functions of the Minister under this or any other enactment.

185. Amendment of section 5 of Act of 1998 (advertisement, etc., by Referendum Commission).

185.— The following section is substituted for section 5 of the Act of 1998:

“5.— (1) Section 41 (3) of the Broadcasting Act 2009 does not apply to advertisements broadcast at the request of the Commission in relation to a matter referred to in section 3 concerning the referendum.

(2) The Minister for Communications, Energy and Natural Resources, if so requested by the Commission following consultation by the Commission with RTÉ and TG4 and consideration of any proposals of RTÉ or TG4 for broadcasts in connection with the referendum that RTÉ or TG4 communicate to the Commission, shall direct RTÉ and TG4 in writing to allocate broadcasting time to facilitate the Commission in performing its functions. RTÉ and TG4 shall comply with the direction.

(3) The Minister for Communications, Energy and Natural Resources, if so requested by the Commission following consultation by the Commission with the BAI and consideration of any proposals of the BAI for broadcasts in connection with the referendum by sound broadcasting contractors, a television programme service contractor or content provision contractors that it communicates to the Commission, shall direct the BAI in writing to arrange for the provision for and on behalf of the Commission of services (with or without charge) including the allocation of broadcasting time to facilitate the Commission in performing its functions. The BAI shall comply with the direction.

(4) In this section—

‘BAI’ means Broadcasting Authority of Ireland;

‘RTÉ’ and ‘TG4’ have the meaning assigned to them, respectively, bysection 2 of the Broadcasting Act 2009.”.

PART 15 Digital Services

Chapter 1

186. Interpretation (Part 15).

186.—(1) In this Part—

“certification conditions”means the conditions specified in Article 21(3);

“designation conditions”means the conditions specified in Article 40(8);

“out-of-court dispute settlement body”means a person certified under section 193(3)(a);

“vetted researcher”means a person designated as a vetted researcher under section 187(5)(a).

(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.

F342[Chapter 2

187. Designation of vetted researchers.

187.—(1) A person who applies to the Commission under Article 40(8) to be designated as a vetted researcher shall do so in the form and manner specified by the Commission and such application shall specify the research to which the application relates.

(2) Where a Member State Digital Services Coordinator provides the Commission with an initial assessment conducted in accordance with Article 40(9) together with the application and supporting documents submitted to the Coordinator, any information provided by the Member State Digital Services Coordinator in accordance with this subsection shall be deemed to be an application undersubsection (1)by the person who submitted the application to the Coordinator.

(3) At any time after receiving an application undersubsection (1), and before determining the application, the Commission may by notice in writing require the person applying undersubsection (1)to provide additional information to the Commission and where the Commission does so, the person shall comply with that requirement within the period specified in the request.

(4) Additional information referred to insubsection (3)may include information the Commission considers is appropriate for, or relevant to, the making of a reasoned request in accordance with Article 40(4).

(5) Where the Commission is satisfied that a person, the subject of the application undersubsection (1)—

(a) meets the designation conditions, the Commission may designate that person as a vetted researcher for the research referred to in the application, or

(b) does not meet the designation conditions, the Commission may refuse to designate that person as a vetted researcher for the research referred to in the application.

(6) Where the Commission makes a decision undersubsection (5), the Commission shall notify the person, the subject of the application undersubsection (1), in writing of the decision.

(7) A provider of a very large online platform (within the meaning ofsection 139ZG) or of a very large online search engine (within the meaning ofsection 139ZG) shall provide access to data to a vetted researcher where the Commission has issued a reasoned request under Article 40(4) for that vetted researcher.

(8) The Commission shall provide a copy of the reasoned request issued under Article 40(4) to the vetted researcher concerned.]

188. F343[Termination of data access.

188.—(1) Where a vetted researcher has been granted data access following a reasoned request for such access under Article 40(4), the Commission shall terminate the access where the Commission has determined that the vetted researcher no longer meets the designation conditions, following an investigation—

(a) on the Commission’s own initiative, or

(b) based on information received by the Commission from third parties.

(2) Where the Commission proposes to terminate data access in accordance withsubsection (1), the Commission shall notify the vetted researcher in writing of the proposed termination.

(3) A notification undersubsection (2)shall include particulars of the following:

(a) the proposal to terminate access undersubsection (1)and the reason for it;

(b) that the researcher is entitled to make representations in accordance withsection 196regarding the proposal to terminate access;

(c) that if the researcher does not make such representations, the proposed termination undersubsection (1)shall come into operation 14 days from the date of the service of the notification;

(d) that the researcher is entitled to seek a review of the decision to terminate access in accordance withsection 189.]

189. F344[Review of refusal of designation or revocation of designation.

189.—(1) Where—

(a) an application for designation is refused by the Commission undersection 187(5)(b), or

(b) the data access of a vetted researcher is proposed to be terminated by the Commission undersection 188,

the applicant or the vetted researcher may, within 14 days from the date of the service of the notification undersection 187(6)or188(2), request in writing a review (in this section referred to as a ‘review request’) of such refusal or proposed termination in the form and manner specified by the Commission.

(2) The review request shall state the grounds on which the person making the request seeks a review of the refusal or proposed termination, as the case may be.

(3) The Commission shall, upon receipt of the review request, appoint an independent person (in this section referred to as a“reviewer”) to carry out a review in accordance with this section.

(4) The reviewer shall, as soon as is practicable after being appointed, review the decision to refuse the application or the proposal to terminate the data access and may recommend to the Commission that—

(a) the decision should be affirmed, or

(b) the decision should be set aside and the Commission reconsider the decision.

(5) The reviewer shall, within 14 days of making a recommendation undersubsection (4), notify the person who made the review request, of the recommendation and the reasons for it.]

190. F345[Award of trusted flagger status.

190.—(1) An entity established in the State that applies to the Commission under Article 22(2) to be awarded status as a trusted flagger shall do so in the form and manner specified by the Commission (and an entity that so applies is in this section referred to as an“applicant”).

(2) At any time after receiving an application and before determining the application, the Commission may by notice in writing require the applicant to provide additional information to the Commission and where the Commission does so, the applicant shall comply with that requirement within the period specified in the request.

(3) Where the Commission is satisfied that an applicant—

(a) meets the specified conditions, the Commission may award the applicant status as a trusted flagger, or

(b) does not meet the specified conditions, the Commission may refuse to award the applicant status as a trusted flagger.

(4) Where the Commission makes a decision undersubsection (3), the Commission shall notify the applicant in writing of the decision.

(5) In this section and insection 191,“specified conditions”means the conditions specified in Article 22(2).]

191. F346[Revocation of status as trusted flagger.

191.—(1) Where the Commission proposes to revoke the status of a trusted flagger under Article 22(7), the Commission shall notify the trusted flagger in writing of the proposed revocation.

(2) A notification undersubsection (1)shall include particulars of the following:

(a) the proposal to revoke the status of the trusted flagger under Article 22(7) and the reason for it;

(b) that the trusted flagger is entitled to make representations in accordance withsection 196regarding the proposal to revoke the status of the trusted flagger;

(c) that if the trusted flagger does not make such representations, the proposed revocation of the status of the trusted flagger under Article 22(7) shall come into operation 14 days from the date of the service of the notification;

(d) that the trusted flagger is entitled to seek a review of the decision to revoke the status of the trusted flagger in accordance withsection 192.

192. F347[Review of refusal of designation or revocation of designation.

192.—(1) Where—

(a) an application by an entity to be awarded status as a trusted flagger is refused by the Commission undersection 190(3)(b), or

(b) the status of a trusted flagger is proposed to be revoked by the Commission undersection 191, the entity or the trusted flagger may, within 14 days from the date of the notification undersection 190(4)or191(1), request in writing a review (in this section referred to as a“review request”) of such refusal or proposed revocation, in the form and manner specified by the Commission.

(2) The review request shall state the grounds on which the entity or trusted flagger making the request seeks a review of the refusal or proposed revocation, as the case may be.

(3) The Commission shall, upon receipt of the review request, appoint an independent person (in this section referred to as a“reviewer”) to carry out a review in accordance with this section.

(4) The reviewer shall, as soon as is practicable after being appointed, review the decision to refuse the award of status as a trusted flagger or to revoke the status as a trusted flagger and may recommend to the Commission that—

(a) the decision should be affirmed, or

(b) the decision should be set aside and that the Commission reconsider the decision.

(5) The reviewer shall, within 14 days of making a recommendation undersubsection (4), give notice to the entity or trusted flagger who made the review request, of the recommendation and the reasons for it.]

193. F348[Certification of out-of-court dispute settlement bodies.

193.—(1) A person who applies to the Commission under Article 21 to be certified as an out-of-court dispute settlement body shall do so in the form and manner specified by the Commission (and a person who so applies is in this section referred to as an“applicant”).

(2) At any time after receiving an application and before determining the application, the Commission may by notice in writing require the applicant to provide additional information to the Commission and, where the Commission does so, the applicant shall comply with that requirement within the period specified in the notice.

(3) Where the Commission is satisfied that an applicant—

(a) meets the certification conditions, the Commission may certify the applicant as an out-of-court dispute settlement body, or

(b) does not meet the certification conditions, the Commission may refuse to certify the applicant as an out-of-court dispute settlement body.

(4) Where the Commission makes a decision undersubsection (3), it shall notify the applicant in writing of the decision.]

194. F349[Revocation of certification as out-of-court dispute settlement body.

194.—(1) Where the Commission proposes to revoke the certification of an out of-court dispute settlement body under Article 21(7), it shall notify the out-of-court dispute settlement body concerned in writing of the proposed revocation.

(2) A notification undersubsection (1)shall include particulars of the following:

(a) the proposal to revoke the certification under Article 21(7) and the reason for it;

(b) that the out-of-court dispute settlement body is entitled to make representations in accordance withsection 196regarding the proposal to revoke the certification;

(c) that if the out-of-court dispute settlement body does not make such representations, the proposed revocation of the certification under Article 21(7) shall come into operation 14 days from the date of the service of the notification;

(d) that the out-of-court dispute settlement body is entitled to seek a review of the decision to revoke the certification in accordance withsection 195.]

195. F350[Review of refusal of certification or revocation of certification.

195.—(1) Where—

(a) an application for certification as an out-of-court dispute settlement body is refused by the Commission undersection 193(3)(b), or

(b) the certification of an out-of-court dispute settlement body is proposed to be revoked by the Commission undersection 194, the body may, within 14 days from the date of the notification undersection 193(4)or194(1), request in writing a review (in this section referred to as a“review request”) of such refusal or proposed revocation in the manner and form specified by the Commission.

(2) The review request shall state the grounds on which the body or out of-court dispute settlement body making the request seeks a review of the refusal or proposed revocation, as the case may be.

(3) The Commission shall, upon receipt of the review request, appoint an independent person (in this section referred to as a“reviewer”) to carry out a review in accordance with this section.

(4) The reviewer shall, as soon as is practicable after being appointed, review the decision to refuse or revoke the designation and may recommend to the Commission that—

(a) the decision should be affirmed, or

(b) the decision should be set aside and that the Commission reconsider the decision.

(5) The reviewer shall, within 14 days of making a recommendation undersubsection (4), give notice to the person who made the review request, of the recommendation and the reasons for it.]

196. F351[ Representations.

196.—(1) Where—

(a) a vetted researcher has been notified of a proposal to terminate data access undersection 188,

(b) a trusted flagger has been notified of a proposal to revoke the status of the trusted flagger undersection 191, or

(c) an out-of-court dispute settlement body has been notified of a proposal to revoke the certification of the out-of-court dispute settlement body undersection 194, the researcher, flagger or body may make representations to the Commission about such proposal.

(2) The Commission shall have regard to any representations made to it undersubsection (1)in deciding whether to proceed with the proposed termination or revocation concerned.

(3) Where—

(a) a researcher, flagger or body makes representations to the Commission in accordance withsubsection (1), and

(b) the Commission decides to give effect to the proposed termination of data access, revocation of the status of trusted flagger or revocation of certification as an out-of-court dispute settlement body,

the termination or revocation shall come into operation 14 days from the date of the notification undersection 188,191or194.

197. F352[Investigation of trusted flagger, vetted researcher or out-of-court dispute settlement body.

197.—(1) For the purposes of an investigation in accordance with Articles 21(7), 22(7) and 40(1), the Commission may appoint a member of the staff of the Commission as an investigator to investigate—

(a) the award of a status as a trusted flagger in accordance with Article 22(7),

(b) the certification of an out-of-court dispute settlement body in accordance with Article 21(7), or

(c) the designation as a vetted researcher in accordance with Article 40(10).

(2) An investigation under this section shall be carried out by a Digital Services investigator without undue delay and where the investigation concerns the status of a trusted flagger, that status shall be suspended during the period of the investigation.

(3) For the purposes of an investigation undertaken in accordance with this section, the Digital Services investigator may—

(a) inspect and make copies of any books, records or other documents (including books, records or documents stored in non-legible form), or take extracts therefrom, relating to the trusted flagger, vetted researcher or out-of-court dispute settlement body,

(b) by notice in writing, request the trusted flagger, vetted researcher or out-of-court dispute settlement body to provide additional information to him or her, and

(c) request any person at the place of work or premises of the trusted flagger, vetted researcher or out-of-court dispute settlement body concerned, including the owner or person in charge of that place or premises, to give the Digital Services investigator such information and assistance as he or she may reasonably require for the purposes of an investigation under this section.

(4) A person requested to provide information or assistance in accordance withsubsection (3)(c)shall comply with a request of the Digital Services investigator to provide such information and assistance as he or she may reasonably require for the purposes of the investigation.

(5) In this section,“Digital Services investigator”means an investigator appointed undersubsection (1).]

F353[Chapter 3

198. Orders to act against illegal content.

198.—(1) Where an authority in the State issues an order to act against one or more specific items of illegal content under Article 9(1), the authority shall ensure that the order meets the conditions specified in Article 9(2).

(2) Any order issued in the State under Article 9 shall be transmitted to the Commission by the authority who issues it, and such transmission shall include any information received from an intermediary service provider of the effect given to the order under Article 9(1).]

199. F354[Orders to provide information.

199.—(1) Where an authority in the State issues an order to provide specific information under Article 10(1), the authority shall ensure that the order meets the conditions specified in Article 10(2).

(2) Any order issued in the State under Article 10 shall be transmitted to the Commission by the authority who issues it, and such transmission shall include any information received from an intermediary service provider of the effect given to the order under Article 10(1).]

200. F355[Fees.

200.—(1) The Commission may specify a fee to accompany—

(a) an application referred to insection 187,190or193, and

(b) a review request made undersection 189,192or195.

(2) The Commission may specify different fees for different classes of application or review request.]

201. F356[Complaints to Commission concerning Digital Services Regulation.

201.—(1) A person (in this section referred to as“a complainant”) may make a complaint to the Commission, in the manner and form specified by the Commission, that there has been a failure by an intermediary service provider to comply with a provision of the Digital Services Regulation.

(2) The Commission shall carry out an initial assessment of the complaint made undersubsection (1)and, having done so, may transmit the complaint to—

(a) the Competition and Consumer Protection Commission where the complaint concerns Article 30, 31 or 32,

(b) the Digital Services Coordinator of establishment, where considered appropriate, accompanied by an opinion, or

(c) the European Commission where the complaint concerns Articles 33 to 42.

(3) The Commission shall notify the complainant where the complaint has been transmitted undersubsection (2).

(4) The Commission shall, where it does not transmit the complaint undersubsection (2), carry out a further assessment of the complaint and may take any of the following actions:

(a) serve an intermediary service provider a compliance notice undersection 139ZZGA;

(b) investigate the complaint in accordance withsection 139ZI(1);

(c) dismiss the complaint where the Commission finds—

(i) the complaint is frivolous or vexatious or was not made in good faith, or

(ii) the subject matter of the complaint is trivial;

(d) take such other action in respect of the complaint as the Commission considers appropriate.

(5) The Commission shall notify the complainant and the intermediary service provider to which the complaint relates of the complaint made under this section and of any action proposed by the Commission undersubsection (4).

(6) A notification undersubsection (5)shall—

(a) include particulars of the complaint,

(b) state that the intermediary service provider to which the complaint relates may make representations undersubsection (7), and

(c) specify the date by which any representations shall be made undersubsection (7).

(7) An intermediary service provider the subject of a complaint made undersubsection (1)and notified undersubsection (6)may, within the time specified by the Commission in such notification, make representations to the Commission about such complaint.

(8) The Commission shall have regard to any representations made to it undersubsection (7)in deciding whether to proceed with any proposed action undersubsection (4).

(9) The Commission shall notify the complainant and the intermediary service provider the subject of the complaint made undersubsection (1)in writing of its decision undersubsection (4).]

202. F357[Offences.

202.—(1) A person who knowingly or recklessly provides false or misleading information to the Commission in relation to an application referred to insection 187,190or193or undersection 196or197(3)shall be guilty of a category 2 offence.

(2) A person, while not awarded status as a trusted flagger or whose status as a trusted flagger is revoked, who holds themselves out as a trusted flagger, shall be guilty of a category 3 offence.]