Broadcasting Act 2009

139ZJA.— Where, at any time after the commencement of an investigation pursuant to a direction under section 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 investigation F246[pursuant to a direction under section 139ZI(1)], an authorised officer F247[may, subject to subsection (1A), do any of the following]:

• (a) F246[except in the case of an investigation to which paragraph (aa) applies,] subject to subsection (7), at any reasonable time, enter any place where the authorised officer has reasonable grounds for believing—

• (i) that an activity connected with a broadcasting service, audiovisual on-demand media service F248[, 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 within paragraph (c) or (d) of the definition of "contravention" in section 139ZG, subject to subsection (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 under F247[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 a F247[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 within paragraph (c) or (d) of the definition of "contravention" in section 139ZG, a requirement under paragraph (d), (e), (f), (g), (h), (j) or (n) of subsection (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) In paragraph (aa) of subsection (1) and in subsection (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 under paragraph (d), (e), (f), (g), (h) or F247[(j) of subsection (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 of F247[an investigation pursuant to a direction under section 139ZI(1)].

• (4) Schedule 4, and any rules made by the Commission under section 139ZN, shall have effect for the purposes of an oral hearing referred to in subsection (3).

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

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

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

• (a) with the consent of the occupier, or

• (b) in accordance with a warrant under section 139ZL.

• (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 to subsection (8), a person may, subject to subsection (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 under subsection (1)(aa), (b) or (c),

• (b) fails or refuses to comply with a requirement of an authorised officer under subsection (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 under subsection (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 of subsection (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 of section 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 under subsection (1) shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under subsection (8), and this shall be explained to the person in ordinary language by the authorised officer.

• (11) A person the subject of a requirement under subsection (1) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court.]

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

139ZKA.—(1) A person authorised by the Commission, under subsection (2), may direct an authorised officer to exercise powers under section 139ZK, as that section applies in accordance with subsection (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 of subsection (1).

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

• (4) Before exercising powers under section 139ZK as applied by subsection (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 in subsection (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 by section 139ZK.

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

• (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 by section 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 in subsection (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 under subsection (2)(c) may not be earlier than the date on which the notice under subsection (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 in subsection (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 under subsection (2) has been given has failed to comply with the obligation specified in the notice by the date specified under subsection (2)(c), the authorised officer may refer the matter to the Commission.

• (6) Where a matter is referred to the Commission under subsection (5) and it appears to the Commission, after considering any written submissions made by the person to whom the notice under subsection (2) was given within the period specified in accordance with subsection (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 under section 139ZI for the investigation referred to in subsection (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 under section 139ZX or on summary application under section 139ZY, as those sections apply in accordance with section 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 is prima facie evidence—

• (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 under section 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 under subsection (1) shall—

• (a) state the suspected contravention,

• (b) state the grounds on which it appears to the Commission that there is prima facie evidence that the suspected contravention has occurred and is continuing, and

• (c) state the grounds on which it appears to the Commission that the suspected contravention gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention could be made under section 139ZS.

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

• (a) the taking of a decision under section 139ZS in relation to the suspected contravention;

• (b) the discontinuance of the investigation referred to in subsection (1);

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

• (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 under section 139ZI for the investigation referred to in subsection (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 under subsection (1) shall be guilty of a category 1 offence.

• (7) Where an offence has been committed under subsection (6) by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a person who was either a director, manager, secretary or other officer of the body corporate, or a person purporting to act in such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the offence committed by the body corporate.

• (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, under subsection (7) shall not be instituted except by or with the consent of the Director of Public Prosecutions.

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

139ZM. F253[Report of authorised officer.

139ZM.— (1) As soon as is practicable after the completion of an investigation F254[pursuant to a direction under section 139ZI(1)], the authorised officer shall prepare a draft report of the investigation.

• (2) In preparing the draft report referred to in subsection (1), the authorised officer shall consider, in so far as they are relevant to the investigation—

• (a) the terms of the investigation,

• (b) the notice under section 139ZJ(1), and any response made by the F255[inquiry subject] to that notice under section 139ZJ(3),

• (c) any relevant material or relevant equipment obtained in the course of the investigation in the exercise of powers under section 139ZK,

• (d) any statement or admission made by any person in the course of the investigation pursuant to a requirement, or during an oral hearing, under F255[section 139ZK,]

• (e) any submissions made by any person during an oral hearing under F255[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 in paragraphs (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 the F255[inquiry subject]—

• (a) a copy of the draft report,

• (b) a copy of any material relied upon by the authorised officer in preparing the draft report,

• (c) a copy of this section, and

• (d) a notice in writing stating that the F255[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 in subsection (3)(d), and having considered any submissions made under that subsection, make any revisions to the draft report which, in the opinion of the authorised officer are warranted, and finalise the report.

• (5) An authorised officer shall not make any recommendation, or express any opinion, in a draft report under subsection (1) or in a final report under subsection (4), as to whether an administrative financial sanction should be imposed under section 139ZS in the event that the Commission is satisfied that the F255[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 under subsection (4), provide a copy of the final report to the F255[and any views to which subsection (7A) applies to the inquiry subject.]

• (7) An authorised officer shall, as soon as is practicable after the draft report has been finalised under subsection (4), provide a copy of the final report F255[any submissions made in accordance with a notice under subsection (3)(d), and any views to which subsection (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 under subsection (3)(d), and any views to which subsection (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 under subsection (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 contravenes subsection (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 under section 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 with section 139ZM(6), inform the inquiry subject of the effect of section 139ZSA.]

139ZN. F257[Rules.

139ZN.— F258[(1) Subject to the provisions of this Part and Schedule 4, the Commission may make rules providing for the conduct of investigations under this Chapter, the exercise of powers under section 139ZK as applied by section 139ZKA, and the conduct of its proceedings under Chapters 3 and 4.]

• F258[(2) In making rules under subsection (1), the Commission shall have regard to the need for fairness and efficiency in the conduct of such investigations and proceedings and the exercise of 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 under subsection (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 3 and 4, Schedule 4 and any rules made under section 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 and Schedule 4, any rules made under section 139ZN and any guidelines made under section 139ZO, an authorised officer may follow such procedures for the F261[conduct of an investigation, or the exercise of powers under section 139ZK as applied by section 139ZKA] as he or she considers appropriate.

• (2) An authorised officer shall, in the conduct of an investigation, take reasonable steps to keep the F261[inquiry subject] informed as to the progress of the investigation.]

F262[Chapter 3 Decision of Commission

Division of Commission.

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

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

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

139ZR.— (1) After the authorised officer has complied with subsections (6) and (7) of section 139ZM the Commission shall, subject to subsection (2), give the F264[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 which section 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 with subsection (1) if it holds an oral hearing under subsection (3) at which the F264[inquiry subject] may make submissions to it on F264[the final report and any views to which section 139ZM(7A) applies].

• (3) The Commission shall at any time after the authorised officer has complied with subsections (6) and (7) of section 139ZM conduct an oral hearing if it considers it necessary to do so in order for the procedures under this Part to operate fairly.

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

• (a) request the F264[inquiry subject] to provide the Commission with further information within such period as the Commission specifies;

• (b) request any other person to provide the Commission with further information within such period as the Commission specifies;

• (c) for the purposes of a request under paragraph (b) F265[or in an oral hearing under paragraph (d)], provide a copy of the final report, or of part of the final report, with any redactions the Commission considers necessary, to the person the request is made to;

• (d) conduct an oral hearing F265[in accordance with Schedule 4].

• (5) As soon as practicable after making a request under subsection (4)(b), the Commission shall give the F264[inquiry subject] a copy of the request.

• (6) As soon as practicable after receiving any information pursuant to a request under subsection (4)(b), the Commission shall give the F264[inquiry subject]—

• (a) a copy of the information, and

• (b) a notice in writing stating that the F264[inquiry subject] may make submissions in writing to the Commission on the information within the period of 20 working days from the date the F264[inquiry subject] receives the notice, or such further period as the Commission may allow.

• F265[(6A) Where, after the authorised officer has complied with subsections (6) and (7) of section 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 with subsection (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, under subsection (4)(c) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the report to any other person.

• (8) A person who without reasonable excuse—

• (a) fails to comply with a request for further information under subsection (4)(a) or (b), or

• (b) contravenes subsection (7),

shall be guilty of a category 2 offence.

• (9) A person who, in purported compliance with a request for further information under subsection (4)(a) or (b), gives to the Commission information which the person knows to be false or misleading in any material respect shall be guilty of a category 2 offence.

• F265[(9A) Without prejudice to subsections (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 in subsection (1)(b) relates to a Digital Services investigation, the person—

• (a) fails to comply with a request for further information under subsection (4)(a) or (b),

• (b) in purported compliance with a request for further information under subsection (4)(a) or (b), gives to the Commission information which the person knows to be false or misleading in any material respect, or

• (c) fails to rectify—

• (i) any failure on his or her part to comply with a request for further information under subsection (4)(a) or (b), or

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

• (10) A statement or admission made by a person pursuant to a request for further information under subsection (4)(a) or (b), shall not be admissible in evidence in proceedings brought against the person for an offence, other than an offence under subsection (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 a F267[person] who is the subject of a report under section 139ZM—

• (a) whether or not it is satisfied on the balance of probabilities that the F267[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 under subsection (1) that a contravention has been committed, or that an administrative financial sanction shall be imposed, does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY.

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

• F267[(a) the final report provided under subsection (7) of section 139ZM and any submissions or views provided with the report in accordance with that subsection,]

• (b) any evidence adduced or submissions made during an oral hearing conducted under section 139ZR,

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

• (d) any submissions made pursuant to a notice under subsection (1) or (6) of section 139ZR.

• (4) F268[Other than where subsection (4A) applies, in deciding] under subsection (1)(b) whether or not to impose an administrative financial sanction on a F267[person], the Commission shall have regard to the matters referred to in paragraphs (a), (b), (c), (d) (e), (g), (h), (i), (j) and (k) of section 139ZW(3).]

• F269[(4A) Where a contravention falls within paragraph (ba) of the definition of "contravention" in section 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;

• (b) whether the contravention was intentional or negligent;

• (c) previous contraventions by the hosting service provider;

• (d) the financial strength of the hosting service provider;

• (e) the level of cooperation of the hosting service provider with the competent authorities designated pursuant to Article 12(1) of the Terrorist Content Online Regulation;

• (f) the nature and size of the hosting service provider, in particular whether it is a micro, small or medium-sized enterprise;

• (g) the degree of fault of the hosting service provider, taking into account the technical and organisational measures taken by the hosting service provider to comply with the Terrorist Content Online Regulation.]

139ZSA. F270[Decision following joint investigation to which Article 60 applies.

139ZSA.— (1) A decision under section 139ZS, where the report referred to in subsection (1) of that section relates to a joint investigation to which Article 60 applies, constitutes the preliminary position referred to in that Article, and (subject to subsections (5) to (7)) sections 139ZT, 139ZU and 139ZV do not apply in relation to the decision.

• (2) As soon as is practicable after making a decision to which subsection (1) applies, the Commission shall give notice in writing of the decision to the inquiry subject.

• (3) A notice under subsection (2) shall—

• (a) set out the decision and the reasons for it, and

• (b) state the effect of subsections (1) and (5) to (7).

• (4) Where the Commission makes a communication under Article 60(2) in relation to a decision to which subsection (1) applies, the Commission shall as soon as is practicable give the inquiry subject notice in writing that the communication has been made.

• (5) If in relation to a decision to which subsection (1) applies—

• (a) no referral is made under Article 60(3), or

• (b) following a referral, the European Commission does not make a request under Article 59(3) for the matter to be reviewed,

the Commission shall adopt the decision as its final decision.

• (6) If, in relation to a decision to which subsection (1) applies, the European Commission makes a request under Article 59(3) for the matter to be reviewed, the Commission may, following the review and subject to Article 59(3), do any of the following:

• (a) adopt the decision as its final decision;

• (b) request a person authorised under section 139ZI(2) to give a direction under subsection (1) of that section for a new investigation;

• (c) take any other action that appears to the Commission to be necessary to ensure compliance with the Digital Services Regulation.

• (7) Where the Commission adopts a decision to which subsection (1) applies as its final decision, sections 139ZT, 139ZU and 139ZV shall apply in relation to the decision.]

139ZT. F271[Notice and publication of decision of Commission.

139ZT.— F272[(1) The Commission shall, as soon as is practicable after making a decision under section 139ZS, give notice in writing of the decision to the inquiry subject.]

• (2) The notice under subsection (1) shall set out the decision made and the reasons for it.

• (3) If the Commission decides that a contravention has occurred, the notice shall also—

• (a) state that the decision does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY, and

• (b) state that, if the F272[inquiry subject] does not appeal under section 139ZX, the Commission will, as soon as is practicable after the expiration of the period for the making of an appeal referred to in section 139ZX(1), make an application in a summary manner for confirmation of the decision under section 139ZY.

• (4) If the Commission decides to impose an administrative financial sanction, the notice shall also—

• (a) state that the F272[inquiry subject] may make submissions in relation to the application of section 139ZW to the determination of the amount of the sanction,

• (b) state either that—

• (i) those submissions may be made at an oral hearing, under section 139ZU(2)(a), on a date specified in the notice, or

• (ii) that those submissions may be made in writing, under section 139ZU(2)(b), within a period specified in the notice in accordance with that section,

and

• (c) state that the Commission may request further information under section 139ZU(3).

• (5) The Commission shall publish the decision made under section 139ZS on a website maintained by it and that publication shall include the following matters:

• (a) the name of the F272[inquiry subject];

• (b) the nature of the suspected contravention to which the investigation related;

• (c) the reasons for the decision;

• (d) such other particulars, reports or material as the Commission considers appropriate.

• F273[(5A) Subsection (5) does not apply to a decision where the suspected contravention falls within paragraph (c) of the definition of "contravention" in section 139ZG.

• (5B) Where the decision referred to in subsection (1) relates to a contravention falling within paragraph (b) or (d) of the definition of "contravention" in section 139ZG, the Commission shall provide a copy of the notice referred to in that subsection to

• (a) the European Commission,

• (b) the European Board for Digital Services, and

• (c) each Member State Digital Services Coordinator.]

• (6) The Commission may provide a copy of a notice referred to in subsection (1) to F272[any other person] where it considers it appropriate to do so.

• (7) A person who receives a copy of a notice under subsection (6) prior to the publication of the decision under subsection (5) shall not, without the prior authorisation of the Commission, disclose the existence or the content of the notice, including any content redacted in accordance with subsection (9) from a notice published under subsection (5), to any other person.

• (8) A person who without reasonable excuse contravenes subsection (7) shall be guilty of a category 2 offence.

• (9) The Commission may, for the purposes of publication under subsection (5), redact any particulars which appear to the Commission—

• (a) to be commercially sensitive, or

• (b) to relate to the commission of an offence.]

F274[Chapter 4 Administrative financial sanctions

139ZU. Submissions and requests for information.

139ZU.— (1) Subsections (2) and (3) apply where the Commission has made a decision under section 139ZS to impose an administrative financial sanction on a F275[person].

• (2) The F275[person] may make submissions to the Commission in relation to the application of section 139ZW to the determination of the amount of the sanction—

• (a) at an oral hearing, where the Commission considers it necessary, or

• (b) otherwise, in writing, within the period of 10 working days from the date the F275[person] receives the notice under section 139ZT, or such longer period as the Commission may specify in the notice.

• F275[(3) Where a person makes submissions to the Commission under subsection (2)(b), the Commission may by notice in writing request the person to provide, within a specified period, such further information as the Commission considers appropriate for the purposes of determining the amount of the sanction.]

• F275[(4) A person who—

• (a) without reasonable excuse fails to comply with a request under subsection (3), or

• (b) in purported compliance with a request under subsection (3), gives to the Commission information which the person knows to be false or misleading in any material respect,

shall be guilty of a category 2 offence.]]

139ZV. F276[Determination of amount of administrative financial sanction.

139ZV.— (1) Where a decision has been made under section 139ZS to impose an administrative financial sanction, the Commission shall determine the amount of the sanction in accordance with section 139ZW.

• (2) The Commission shall make the determination as soon as practicable after—

• (a) where section 139ZU(2)(a) applies, the date of the oral hearing referred to in that paragraph, or

• (b) where section 139ZU(2)(b) applies, the expiry of the period or further period referred to in that paragraph, or if applicable the period specified in any notice under section 139ZU(3),

whether or not any submissions have been made or information provided.

• (3) As soon as practicable after making the determination, the Commission shall give the F277[inquiry subject] a notice in writing of the determination and the reasons for it.

• (4) As soon as practicable after giving the notice under subsection (3), the Commission shall publish the notice on a website maintained by it.

• (5) The Commission may, for the purposes of publication under subsection (4), redact any particulars from the notice which appear to the Commission—

• (a) to be commercially sensitive, or

• (b) to relate to the commission of an offence.]

139ZW. F278[Limitations on amount of administrative financial sanction.

139ZW.— F279[(1) In the case of a contravention falling within paragraph (a) of the definition of "contravention" in section 139ZG—

• (a) where the inquiry subject is an individual, the amount of an administrative financial sanction imposed under section 139ZS shall not exceed €20,000,000, but shall not be such as would be likely to cause the inquiry subject to be adjudicated bankrupt, and

• (b) where the inquiry subject is not an individual, the amount of an administrative financial sanction imposed under section 139ZS shall not exceed—

• (i) €20,000,000, or

• (ii) if greater, 10 per cent of the relevant turnover of the inquiry subject in the financial year preceding the date of the decision under section 139ZS to impose the sanction,

but shall not be such as would be likely to cause the inquiry subject to cease trading.]

• F280[(1A) In the case of a contravention falling within paragraph (b) or (d) of the definition of "contravention" in section 139ZG, the amount of an administrative financial sanction imposed under section 139ZS shall not exceed 6 per cent of the turnover of the inquiry subject in the financial year preceding the date of the decision under section 139ZS to impose the sanction.]

• F281[(1AA) In the case of a contravention falling within paragraph (ba) of the definition of "contravention" in section 139ZG that amounts to, or is a result of, a systematic or persistent failure to comply with obligations under Article 3(3) of the Terrorist Content Online Regulation, an administrative financial sanction may be imposed under section 139ZS of up to 4 per cent of the global turnover of the inquiry subject in the financial year preceding the date of the decision under section 139ZS to impose the sanction.]

• F280[(1B) In the case of a contravention falling within paragraph (c) of the definition of "contravention" in section 139ZG, the amount of an administrative financial sanction imposed under section 139ZS shall not exceed one per cent of the income or turnover of the inquiry subject in the financial year preceding the date of the decision under section 139ZS to impose the sanction.]

• (2) In F279[subsection (1)(b)(ii)], “relevant turnover” means turnover F282[…] attributable to the service which gave rise to the contravention.

• (3) F283[Other than where subsection (3A) applies, the Commission] shall have regard to the following matters in determining the amount of the administrative financial sanction imposed under section 139ZS:

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

• (b) the degree of harm to particular people or to the public caused as a result of the contravention;

• (c) the extent of any failure by the F279[inquiry subject] to co-operate with an investigation, provided that acknowledgement of a contravention shall not in itself constitute grounds for reduction of a sanction;

• (d) any explanation accepted by the Commission for the contravention or the failure to co-operate with an investigation;

• (e) any gain (financial or otherwise) made, or any loss (financial or otherwise) avoided, F279[by the inquiry subject, or by any other person in which the inquiry subject] has a pecuniary interest or beneficial interest, as a consequence of the contravention;

• (f) whether a previous decision under section 139ZS in respect of the F279[inquiry subject] has been confirmed or made by the appropriate court (within the meaning of section 139ZX) under section 139ZX or confirmed by the Circuit Court under section 139ZY;

• (g) the nature and timeliness of any steps taken by the F279[inquiry subject] to bring the contravention to an end, and any steps taken by the F279[inquiry subject] to remedy the consequences of the contravention;

• (h) the absence or ineffectiveness of internal mechanisms or procedures intended to prevent such a contravention;

• (i) the extent to which the contravention was contributed to by the act or omission of a third party, and the extent to which the F279[inquiry subject] took steps to identify, and mitigate the effect of, the act or omission;

• (j) the extent to which the contravention was contributed to by circumstances beyond the control of the F279[inquiry subject], and the extent to which the F279[inquiry subject] took steps to identify, and mitigate the effect of, those circumstances;

• (k) F279[in the case of a body corporate, the extent to which] the management of the F279[body] knew, or ought to have known, that the contravention was occurring or would occur;

• (l) the F279[income or turnover] of the F279[inquiry subject] in the financial years during which the contravention occurred and the ability of the F279[inquiry subject] to pay a sanction;

• F280[(la) any views communicated by the European Commission under Article 59(3) that are relevant to the amount of the sanction;]

• (m) any submissions made by the F279[inquiry subject] under section 139ZU(2) in relation to the determination of the amount of the sanction;

• (n) any further information given to the Commission by the F279[inquiry subject] in response to a request under section 139ZU(3);

• (o) previous determinations under this section which have been confirmed or made by the appropriate court (within the meaning of section 139ZX) under section 139ZX or confirmed by the Circuit Court under section 139ZY.

• F281[(3A) In the case of a contravention falling within paragraph (ba) of the definition of "contravention" in section 139ZG, the Commission shall have regard to all relevant circumstances when determining the amount of the administrative financial sanction imposed under section 139ZS, including the following:

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

• (b) whether the contravention was intentional or negligent;

• (c) previous contraventions by the hosting service provider;

• (d) the financial strength of the hosting service provider;

• (e) the level of cooperation of the hosting service provider with the competent authorities designated pursuant to Article 12(1) of the Terrorist Content Online Regulation;

• (f) the nature and size of the hosting service provider, in particular whether it is a micro, small or medium-sized enterprise;

• (g) the degree of fault of the hosting service provider, taking into account the technical and organisational measures taken by the provider to comply with the requirements of the Terrorist Content Online Regulation.]

• (4) The amount of an administrative financial sanction imposed under section 139ZS shall—

• (a) be proportionate to the nature of the contravention, and

• F279[(b) be set with a view to deterring the inquiry subject, and, where the inquiry subject is a F283[a hosting service provider or a provider] of broadcasting services, audiovisual on-demand media services, designated online services or intermediary services, other such providers, from committing a contravention.]

• (5) F282[…]]

139ZX. F284[Appeal against decision.

139ZX.— (1) The F285[inquiry subject] to whom a decision under section 139ZS relates may, within 28 days from the date on which the notice referred to in section 139ZT is received, or where section 139ZV applies, within 28 days from the date on which the notice referred to in section 139ZV(3) is received, appeal to the appropriate court against the decision.

• (2) F286[…]

• (3) The appropriate court may, on F285[the application of the inquiry subject], extend the period for the making of an appeal under subsection (1), where it is satisfied that—

• (a) there is good and sufficient reason for doing so,

• (b) the circumstances that resulted in the failure to bring an appeal within the period referred to in subsection (1) were outside F285[the control of the inquiry subject], and

• (c) an application for confirmation has not been determined under section 139ZY.

• (4) In considering an appeal, the appropriate court—

• (a) shall have regard to the record of the decision the subject of the appeal, and

• (b) may, where it considers it necessary for the fair and proper determination of the appeal, consider any evidence adduced or submission made by the F285[inquiry subject] concerned, whether or not already adduced or made to the authorised officer or the Commission.

• (5) Subject to subsection (7), the appropriate court may, on the hearing of an appeal under subsection (1)—

• (a) confirm the decision, or

• (b) subject to subsection (6)—

• (i) set aside the decision,

• (ii) set aside the decision and replace it with such other decision as the court considers it just and appropriate to make, including a decision not to impose an administrative financial sanction, or a decision to impose an administrative financial sanction of a different amount, or

• (iii) remit the decision for reconsideration by the Commission, subject to such directions as the court considers appropriate.

• (6) A decision of the Commission may not be set aside or remitted by the appropriate court under subsection (5)(b) for error of law or fact unless the appropriate court is satisfied that the Commission committed a serious and significant error in making the decision, or that the Commission committed a series of minor errors which, when taken together, amount to a serious and significant error.

• (7) For the purposes of subsection (5), sections 139ZS(4) and 139ZW shall apply to the appropriate court and references to the Commission in those sections shall be construed as references to the appropriate court.

• (8) Where the appropriate court is the Circuit Court it may make such interim or interlocutory orders in any proceedings under subsection (1) or (3) as it considers appropriate.

• (9) The appropriate court may direct how the costs of an appeal under this section are to be borne.

• (10) In this section, “appropriate court” means—

• (a) where no administrative financial sanction is imposed under section 139ZS or where the amount of any administrative financial sanction imposed does not exceed €75,000, or such other sum as stands specified in law as that court’s jurisdiction in tort, the Circuit Court, or

• (b) in any other case, the High Court.]

139ZY. F287[Circuit Court confirmation of decision.

139ZY.— (1) Where the F288[inquiry subject] to whom a decision under section 139ZS relates does not appeal against the decision in accordance with section 139ZX(1), the Commission shall, as soon as is practicable after the expiration of the period referred to in section 139ZX(1), and on notice to the F288[inquiry subject], make an application in a summary manner to the Circuit Court for confirmation of the decision.

• (2) On the hearing of an application under subsection (1), the Circuit Court shall confirm the decision unless it is satisfied, on the basis of the evidence that was before the Commission when making the decision—

• (a) that the Commission made an error of law which is—

• (i) manifest from the record of the decision, and

• (ii) fundamental so as to deprive the decision of its basis,

or

• (b) that any administrative financial sanction imposed is manifestly disproportionate.

• (3) If under subsection (2) the Circuit Court does not confirm the decision it may—

• (a) annul the decision, or

• (b) remit it for reconsideration by the Commission, subject to such directions as it considers appropriate.

• (4) F288[The inquiry subject] may, as soon as practicable after receiving notice of the application under subsection (1), inform the Commission in writing that it does not intend to appear at, or make submissions at, the hearing of the application.

• (5) If an application to extend the period for the making of an appeal against a decision is made under section 139ZX(3) to the High Court, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision under section 139ZX(3).

• (6) If the High Court makes an order under section 139ZX(3) extending the period for the making of an appeal under section 139ZX(1) against a decision, the Circuit Court shall make an order staying any application under subsection (1) for the confirmation of that decision until the High Court has made a decision on the appeal under section 139ZX(5).

• (7) The Circuit Court may make such interim or interlocutory orders as it considers appropriate in any proceedings under subsection (1).

• (8) The Circuit Court may direct how the costs of an application under subsection (1) are to be borne.]

139ZZ. F289[Treatment of amounts paid in respect of administrative financial sanctions.

139ZZ.— A payment received by the Commission of any amount due to it pursuant to a decision confirmed or made under section 139ZX or confirmed under section 139ZY shall be paid into, or disposed of for the benefit of, the Exchequer in such manner as the Minister for Finance may direct.]

139ZZA. F290[Reference on point of law to High Court.

139ZZA.— (1) Where a division of the Commission decides, before the making of a decision under section 139ZS, or where a decision is made under that section to impose an administrative financial sanction, before the making of a determination under section 139ZV(1), to refer any question of law arising under Chapter 3 or 4 to the High Court, the Commission shall refer the question.

• (2) Subject to subsection (3), no appeal shall lie to the Court of Appeal from a decision of the High Court on a reference under subsection (1).

• (3) The High Court may grant leave to appeal, where it certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.]

F291[Chapter 4A Daily payment penalty under section 139ZLA: appeal and confirmation

139ZZAA. Daily payment penalty under section 139ZLA: appeal and confirmation.

139ZZAA.— (1) A person to whom a notice under section 139ZLA(6) is given may, within 28 days from the date on which the notice is received, appeal to the High Court against the decision to impose the daily payment penalty.

• (2) Subsections (3) to (7) and (9) of section 139ZX apply for the purposes of an appeal under this section as they apply for the purposes of an appeal by the inquiry subject under that section subject to the following and any other necessary modifications:

• (a) references to an administrative financial sanction are references to a daily payment penalty under section 139ZLA;

• (b) references to the appropriate court are references to the High Court.

• (3) Where the person to whom a notice under section 139ZLA(6) is given does not appeal in accordance with subsection (1) against the decision to impose a daily payment penalty, the Commission shall, as soon as is practicable after the expiration of the period referred to in subsection (1), and on notice to that person, make an application in a summary manner to the Circuit Court for confirmation of the decision.

• (4) Section 139ZY(2) to (8) apply for the purposes of an application under subsection (3) subject to the following and any other necessary modifications:

• (a) the reference to an administrative financial sanction is a reference to a daily payment penalty under section 139ZLA;

• (b) references to an appeal under section 139ZX(1) are references to an appeal under subsection (1) of this section;

• (c) references to section 139ZY(1) are references to subsection (3) of this section.]

F292[Chapter 5 Notice to end contravention

139ZZB. Notice to end contravention.

139ZZB.— (1) Where—

• (a) the Commission has decided under section 139ZS that it is satisfied that a contravention has occurred, and

• (b) the Commission’s decision in so far as it relates to the occurrence of the contravention is confirmed under section 139ZX or 139ZY or is replaced under section 139ZX with a decision to the same effect,

the Commission may, if it is of the view that the contravention is continuing, give notice in writing to the F293[the inquiry subject directing the inquiry subject] to put an end to the contravention.

• (2) A notice under subsection (1) shall state—

• (a) the steps which the Commission requires the F293[inquiry subject] to take to put an end to the contravention, and

• (b) the period within which those steps must be taken.

• (3) A notice under subsection (1) shall be given as soon as practicable after the date on which the decision is confirmed under section 139ZX or 139ZY or is replaced under section 139ZX with a decision to the same effect.

• (4) A F293[person] who without reasonable excuse fails to comply with a notice under subsection (1) shall be guilty of a category 1 offence.

• (5) Where an offence has been committed under subsection (4) F293[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.

• (6) Where the affairs of a body corporate are managed by its members, subsection (5) applies in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

• (7) Any proceedings, including summary proceedings, under subsection (5) shall not be instituted except by or with the consent of the Director of Public Prosecutions.]

139ZZBA. F294[Daily payment for failure to comply with notice to end contravention.

139ZZBA.— (1) Where the Commission gives a notice under section 139ZZB to an intermediary service provider in respect of a contravention that is an infringement of the Digital Services Regulation, the Commission may, for the purpose of enforcing the notice, impose a penalty of a daily payment (in this section referred to as a "daily payment penalty") on the provider.

• (2) Before the Commission makes a decision to impose a daily payment penalty on a provider, the Commission shall give the provider a notice in writing which—

• (a) states that if the provider fails to take the steps stated under section 139ZZB(2)(a) by a date specified in the notice under this subsection, the Commission intends to impose a daily payment penalty on the provider for each day during which the failure continues, beginning with the day following that date,

• (b) states why it appears to the Commission to be necessary to impose the penalty,

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

• (d) invites the provider to make written submissions to the Commission, regarding the matters to which the notice relates within the period specified in the notice or such further period as the Commission may allow.

• (3) The date specified under subsection (2)(a)—

• (a) may not be earlier than the end of the period specified under section 139ZZB(2)(b), and

• (b) may not be earlier than the date on which the notice under subsection (2) is given.

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

• (5) Where the intermediary service provider fails to take the steps stated under section 139ZZB(2)(a) by the date specified in the notice under subsection (2), the Commission, after considering any written submissions made by the provider within the period referred to in subsection (2)(d), may—

• (a) determine the daily amount of the penalty to be imposed, and the date on which it is to commence, and

• (b) by notice in writing to the provider, impose the penalty.

• (6) A decision of the Commission to impose a daily payment penalty under this section does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY, as those sections apply in accordance with section 139ZZBB.]

139ZZBB. F295[Daily payment penalty under section 139ZZBA: appeal and confirmation.

139ZZBB.— (1) The provider to whom a notice under section 139ZZBA(5) is given may, within 28 days from the date on which the notice is received, appeal to the High Court against the decision to impose the daily payment penalty.

• (2) Subsections (3) to (7) and (9) of section 139ZX apply for the purposes of an appeal by a provider under this section, as they apply for the purposes of an appeal by the inquiry subject under subsection (1) of that section, subject to the following and any other necessary modifications:

• (a) references to an administrative financial sanction are references to a daily payment penalty under section 139ZZBA;

• (b) references to the appropriate court are references to the High Court.

• (3) Where the provider to whom a notice under section 139ZZBA(5) is given does not appeal in accordance with subsection (1) against the decision to impose a daily payment penalty, the Commission shall, as soon as is practicable after the expiration of the period referred to in subsection (1), and on notice to the provider, make an application in a summary manner to the Circuit Court for confirmation of the decision.

• (4) Section 139ZY(2) to (8) apply for the purposes of an application under subsection (3) subject to the following and any other necessary modifications:

• (a) references to an appeal under section 139ZX(1) are references to an appeal under subsection (1) of this section;

• (b) references to section 139ZY(1) were references to subsection (3) of this section.

F296[Chapter 6 Access blocking order

139ZZC. Access blocking order.

139ZZC.— (1) The Commission may apply to the High Court for an order requiring an internet service provider or a provider of an application store service to block access in the State to a relevant online service or an audiovisual on-demand media service.

• (2) An application to the High Court under subsection (1) shall be made on notice—

• (a) to the internet service provider or the provider of an application store service concerned, and

• (b) to the provider of the relevant online service or audiovisual on‑demand media service concerned.

• (3) The court may make an order requiring the blocking of access to a relevant online service if it is satisfied that the provider of the service has actual knowledge that it is making available content that falls within one of the offence-specific categories of harmful online content defined in section 139A(2) and either—

• (a) where the service is a designated online service—

• (i) the content is made available in contravention of an online safety code which applies to the service, and

• (ii) the provider has been convicted of an offence under section 139ZZB(4) for failure to comply with a notice to end the contravention,

or

• (b) where the Commission has designated the service but the designation has not taken effect as notice of the designation has not been served on the provider in accordance with section 139H(3)(a)—

• (i) making available the content would be a contravention of an online safety code which the Commission intends to apply to the service, and

• (ii) the failure to serve notice of the designation on the provider is due to the fault of the provider.

• (4) The court may make an order requiring the blocking of access to an audiovisual on-demand media service if it is satisfied that—

• (a) the provider of the service has actual knowledge that it is making anything referred to in paragraph (b), (c) or (d) of section 46J(1) available in a catalogue of the service, and

• (b) the provider has been convicted of an offence under section 139ZZB(4), for failure to comply with a notice to end the contravention referred to in paragraph (a).

• (5) An order may be made under this section if—

• (a) the application under subsection (1) was made as soon as practicable after the provider concerned was convicted of the offence referred to in subsection (3)(a)(ii), or (4)(b), or as soon as practicable after the failure referred to in subsection (3)(b)(ii) occurred, as the case may be, and

• (b) the order would not be disproportionate.

• (6) The High Court may provide in an order under this section that a requirement imposed by the order is subject to such conditions as it considers necessary.

• (7) The following persons may apply to the High Court to vary or discharge an order under this section in the event that there is any material change in the circumstances which gave rise to the order:

• (a) the internet service provider or provider of an application store service the subject of the order;

• (b) the provider of a service access to which is required to be blocked under the order.

• (8) Without prejudice to subsection (7), the High Court may, on an application under that subsection or of its own motion, discharge an order under this section if it is satisfied that—

• (a) where the order was made on grounds falling within subsection (3)(a)(ii) or (4)(b), the provider of the service has complied with the notice to end the contravention concerned, or

• (b) where the order was made on grounds falling within subsection (3)(b), the relevant online service, access to which is required to be blocked under the order, has been designated as a designated online service.

• (9) In this section, references to a provider of an application store service blocking access to a service include references to the provider blocking the downloading of software used to provide the service or to access the service.

• (10) For the purposes of this section:

“internet service provider” means a person who provides access to the internet at endpoints of the internet (including, for example, on a smartphone);