Communications (Retention of Data) Act 2011

12. Duties of designated judge in relation to this Act.

F57[12.—(1) The Independent Examiner shall undertake the duties specified in this section.

(2) The Independent Examiner shall ascertain whether An Garda Síochána, the Permanent Defence Force, the Revenue Commissioners and the Competition and Consumer Protection Commission are complying with this Act.

(3) For the purpose of performing his or her functions under this section, the Independent Examiner—

(a) has the power to examine any case in which a disclosure request is made, and

(b) may access and inspect any official documents or records relating to the request.

(4) Without prejudice to section 242 of the Act of 2024, any person who was concerned in, or has information relevant to, the preparation or making of a disclosure request shall give the Independent Examiner, on his or her request, such information relating to the disclosure request as is in the person’s possession.

(5) The Independent Examiner may, if he or she considers it desirable to do so, communicate with the Taoiseach or the Minister concerning disclosure requests and with the Data Protection Commissioner in connection with the functions of the Data Protection Commissioner under the Data Protection Regulation and the Data Protection Acts 1988 to 2018.

(6) Nothing in this section shall affect the functions of the Data Protection Commissioner under the Data Protection Acts 1988 to 2018.

(7) In this section—

"Act of 2024" means the Policing, Security and Community Safety Act 2024;

"Data Protection Regulation" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 20162 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

"Independent Examiner" has the same meaning as it has in the Act of 2024.]

12A. F58[Offences

12A.—(1) A person who contravenesF59[section]3(1), 3A(7), 3B(1), 6(8), 6F(2), 7A(15), 7B(23), 7C(14)or7D(23)shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 5 years or both.

(3) In proceedings for an offence undersubsection (1), it shall be a defence for a person against whom such proceedings are brought to prove that the person took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

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

12B. F60[Amendment of Schedule 2

12B.—(1) The Minister may, following consultation with the Minister for Environment, Climate and Communications and in accordance with this section, by regulation amendSchedule 2, where he or she is satisfied that it is necessary to do so in order to ensure that the matters specified in the Schedule adequately reflect developments in electronic communications technology and include data transmitted by means of such technology.

(2) The Minister in exercising the power undersubsection (1), may consult with such persons possessing expertise in the area of electronic communications technology as he or she considers appropriate.]

12C. F61[Guidelines

12C.—The Minister may issue guidelines—

(a) to persons with respect to the making of applications undersections 7A, 7B, 7Cand7D, and

(b) to facilitate compliance by service providers with preservation and production orders.]

12D. F62[Retention of data

12D.—A service provider who is required undersection 3(1), 3A(5), 3B(1), 7A(11)or7B(10)to retain or, as may be appropriate, preserve data shall retain or preserve, as the case may be, those data—

(a) in such a way that they may be disclosed without undue delay pursuant to a disclosure request, and

(b) in accordance with regulations, if any, undersection 12F(2)(a).]

12E. F63[Criteria for specification of geographic area

12E.—A person who, under a provision of this Act, specifies a class or classes ofSchedule 2data by reference to a particular geographical area or areas, shall do so by reference to criteria that are objective and non-discriminatory and, for that purpose, shall have regard to the criteria specified in regulations undersection 12F(2)(b)(if any).]

12F. F64[Regulations

12F.—(1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) The Minister may by regulations provide for one or more of the following:

(a) the technical requirements to be met by a person who is obliged under this Act to retain or preserve data, including the requirements to be met so as to ensure that data so retained or preserved, when required under this Act to be disclosed—

(i) may be disclosed without delay, and

(ii) are of sufficient quality to be used for the purposes for which the disclosure is required;

(b) the criteria, which shall be objective and non-discriminatory, to which a person shall have regard when specifying a class or classes ofSchedule 2data by reference to a particular geographic area, which may include:

(i) the rate of crime in an area;

(ii) the number of persons normally present in the area;

(iii) the presence in the area of strategic infrastructure;

F65[(c) the procedures for making a requirement undersection 6or6Fand for making an application undersection 6A, 6B, 6C, 6D, 6E, 7A, 7B, 7Cor7D.]

(3) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(4) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.]

12G. F66[Notification of data subject

12G.(1) Subject tosubsection (2), whereSchedule 2data have been disclosed to a person pursuant to a requirement undersection 6F(1), 7Cor7D, the Garda Commissioner, the Chief of Staff of the Defence Forces, the Chairman of the Revenue Commissioners, the Chairperson of the Competition and Consumer Protection Commission, as may be appropriate, shall, in accordance with regulations under this section, cause to be given to the person to whom the data relate a notice in writing informing him or her of the disclosure of the data concerned.

(2) Without prejudice to the generality ofsubsection (1), regulations under this section may provide for any one or more of the following:

(a) the form of the notice to be given undersubsection (1);

(b) the information to be provided in that notice, including—

(i) the date on which theSchedule 2data were disclosed pursuant to the requirement concerned,

(ii) the date on which the requirement was made, and

(iii) the date of the authorisation undersection 6Aor6B, the production order undersection 7Cor temporary production order undersection 7D, in respect of the data;

(c) the persons who shall be consulted before such a notice is given in accordance with this section;

(d) the determination of the point in time and circumstances in which a notice should be given having regard to the overriding consideration that this section shall not operate to—

(i) impede the prevention, detection, investigation or prosecution of any serious offence,

(ii) undermine the security of the State, or

(iii) endanger the life or personal safety of any person;

(e) the classes of information that shall not be included in a notice undersubsection (1)having regard to the overriding consideration referred to inparagraph (d);

(f) the categories of persons (other than the person to whom the data relate) whose interests are materially affected by the disclosure of traffic and location data pursuant to a disclosure requirement.

(3) This section shall not apply toSchedule 2data that have been disclosed in compliance with a disclosure requirement made pursuant to—

(a) an authorisation issued undersection 6A(5),

F67[(b) an authorisation issued undersection 6B,]

(c) a production order made undersection 7C(3), or

F67[(d) a temporary production order made undersection 7D(3).]]

12H. F68[Service of documents

12H.—(1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name and shall be so served on or given to the person—

(a) by electronic means,

(b) by delivering it to the person,

(c) by leaving it at the address at which the person ordinarily resides or carries on business or, in a case in which an address for service has been furnished, at that address,

(d) by sending it by post in a prepaid registered letter or by any other form of recorded delivery service to the address referred to inparagraph (c).

(2) For the purposes of this section, a company within the meaning of the Companies Act 2014 is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.]

12I. F69[Processing of personal data

12I.Personal data that are disclosed to a member of the Garda Síochána, a member of the Permanent Defence Forces, an officer of the Revenue Commissioners or an officer of the Competition and Consumer ProtectionF70[Commission], pursuant to a requirement undersection 6(1),F71[…],6F(1), 7C(11)or7D(10)made for the purposes of the prevention, detection, investigation or prosecution of criminal offences, shall be processed in accordance with Part 5 of the Data Protection Act 2018.]

12J. F72[Provisions relating to authorising judge

12J.(1) The President of the District Court shall designate such and so many judges of the District Court to be authorising judges for the purposes of this Act.

(2) An application to an authorising judge underF73[section]6A, 6B, 6C, 6D, 7A, 7B, 7Cor7Dmay be made—

(a) whether or not the service provider in respect of whom the authorisation is issued is resident or located in the District Court district to which the authorising judge stands assigned, and

(b) whether or not the data to which the authorisation applies is retained by the service provider within the District Court district to which the authorising judge stands assigned.]

13. Repeal.

13.— (1) Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 is repealed.

(2) Notwithstanding the repeal under subsection (1), data that were the subject of a data retention request under Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 before that repeal may be adduced in evidence in proceedings conducted after that repeal subject to the provisions of this Act applying and having effect.

13A.—Where, immediately before the date on whichsection 10of the Communications (Retention of Data) (Amendment) Act 2022 comes into operation, data is retained by a service provider pursuant to the service provider’s obligation undersection 3(before its amendment by section 3 of the Communications (Retention of Data) (Amendment) Act 2022), the service provider shall, on and from that date, and for the purposes of compliance with disclosure requirements made pursuant to an authorisation undersection 6Aor6B, continue to retain such data until the earlier of the following events:

(a) the expiry of a period of 6 months beginning on that date, or

(b) the making of the first order undersection 3A.]

14. Short title.

14.— This Act may be cited as the Communications (Retention of Data) Act 2011.