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S.I. No. 336/2011 - European Communities (Electronic Communications Networks and Services) (Privacy and Electronic Communications) Regulations 2011

Type Statutory Instrument

Publication 2011-07-05

Last updated 2023-06-13

State In force superseded text

Text As published

Source Irish Statute Book

articles 35

This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.

7 amending acts · 2023-06-13, S.I. No. 305/2023 - European Communities (Electronic Communications Networks and Services…

Reform history JSON API

(3) The Regulator may give directions to an undertaking to which Regulation 7, 8, 9, 10, 11, 12, 13, 14 or 15 applies requiring the undertaking to take specified measures or to refrain from taking specified measures for the purpose of complying with the provision.

(4) An undertaking to whom Regulation 7, 8, 9, 10, 11, 12, 13, 14 or 15 applies shall furnish the Regulator with such information as the Regulator may reasonably require for the purpose of its functions under these Regulations.

(5) Where the Regulator issues a direction under this Regulation, such direction shall be in writing, state the reasons on which it is based and be addressed to the undertaking concerned and, as soon as practicable, be sent or given in any of the following ways—

(a) by delivering it to the undertaking,

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

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

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

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

(i) the sender’s facsimile machine generates a message confirming successful delivery of the total number of pages of the direction, or

(ii) the recipient’s facility for the reception of electronic mail generates a message confirming receipt of the electronic mail,

and it is also given in one of the other ways mentioned in subparagraphs (a) to (d).

(6) In paragraph (5) and Regulation 20, a company within the meaning of the Companies Acts 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.

Application to the High Court

31.

(1) Where the Regulator finds that an undertaking has not complied with an obligation or requirement under these Regulations or a direction under Regulation 29, 30(1) or (3), the Regulator shall notify the undertaking of those findings and give the undertaking an opportunity to state its views or, if the non-compliance can be remedied, to remedy the non-compliance within a reasonable time limit as specified by the Regulator.

(2) The Regulator may publish, in such manner as it thinks fit, any notification given by it under this Regulation subject to the protection of the confidentiality of any information which the Regulator considers confidential.

(3) The Regulator may amend or revoke any notification under this Regulation.

(4) Where, at the end of the period specified by the Regulator under paragraph (1), the Regulator is of the opinion that the undertaking concerned has not complied with the obligation, requirement or direction, the Regulator may, whether or not the non-compliance is continuing, apply to the High Court for such order as the Regulator considers appropriate including—

(a) a declaration of non-compliance,

(b) an order directing compliance with the obligation, requirement or direction,

(d) an order as provided for in paragraph (8).

(5) The High Court may, on the hearing of the application referred to in paragraph (4), make such order as it thinks fit which may include—

(a) a declaration of non-compliance,

(b) an order directing compliance with the obligation, requirement or direction,

(d) an order as provided for in paragraph (8),

or refuse the application.

An order of the High Court compelling compliance may stipulate that the obligation, requirement or direction must be complied with immediately or may specify a reasonable time limit for compliance and may also stipulate appropriate and proportionate measures aimed at ensuring compliance.

(6) The High Court when dealing with an application under paragraph (4) may make such interim or interlocutory order as it considers appropriate.

(7) The High Court shall not deny any interim or interlocutory relief, referred to in paragraph (6), solely on the basis that the Regulator may not suffer any damage if such relief were not granted pending conclusion of the action.

(8)(a) An application for an order under paragraph (4) may be for, or include an application for, an order to pay to the Regulator such amount, by way of financial penalty, which may include penalties having effect for periods of non-compliance with the obligation, requirement or direction, as the Regulator may propose as appropriate in the light of the non-compliance or any continuing non-compliance. Such an application for an order in respect of a financial penalty for a period of non-compliance may be made even if there since has been compliance with the obligation, requirement or direction.

(b) In deciding on such an application, the High Court shall decide the amount, if any, of the financial penalty which should be payable and shall not be bound by the amount proposed by the Regulator.

(c) Any financial penalty ordered by the High Court to be paid by an undertaking against whom an order may be sought shall be retained by the Regulator as income.

(d) In deciding what amount, if any, should be payable, the High Court shall consider the circumstances of the non-compliance, including—

(i) its duration,

(ii) the effect on consumers, users and other operators,

(iii) the submissions of the Regulator on the appropriate amount, and

(iv) any excuse or explanation for the non-compliance.

Appeals

32.

Part 2 of the Framework Regulations also applies to any user or any undertaking that is affected by a decision, designation, determination, specification, requirement, direction, notification and notice or any other act of an equivalent nature of the Regulator under these Regulations.

Co-operation between Commissioner and Regulator

33.

The Commissioner and the Regulator shall, in the performance of their functions under these Regulations, cooperate with and provide assistance to each other.

Transitional arrangements

34.

(1) A measure that was in force under the Regulations of 2003 immediately before the coming into operation of these Regulations shall continue in force as if it was made under these Regulations.

(2) For the purpose of this Regulation, “measure” means a decision, designation, determination, direction, notice, notification (other than a notification under Regulation 20(1) of the Regulations of 2003), requirement, specification or other act of an equivalent effect made by the Regulator.

(3) Notwithstanding the revocation of the Regulations of 2003, notifications by the Regulator on a person under Regulation 20(1) of those Regulations—

(a) continue in force, and

(b) may continue to be issued, revoked or amended,

as if the Regulations of 2003 had not been revoked.

Revocations

35.

The following Regulations are revoked:

(a) the Regulations of 2003; and

(b) the European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) (Amendment) Regulations 2008 ( S.I. No. 526 of 2008 ).

GIVEN under my Official Seal,

1 July 2011.

PAT RABBITTE,

Minister for Communications, Energy and Natural Resources.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to give effect to Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (ePrivacy Directive), and the amendments to that Directive as introduced by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009.

As well as transposing the amendments made by Directive 2009/136/EC, these Regulations consolidate the provisions of the existing Statutory Instruments transposing the ePrivacy Directive, namely, the “European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations 2003 ( S.I. No. 535 of 2003 )” and the “European Communities (Electronic Communications Networks and Services) (Data Protection and Privacy) (Amendment) Regulations 2008 ( S.I. No. 526 of 2008 )”, which have been revoked by these Regulations.

The aim of these Regulations is, inter alia, to provide for data protection and privacy connected with electronic communications networks and services and to enhance the security and reliability of such networks and services.

Footnotes

OJ No. L 201, 31.7.2002, p. 37

OJ No. L 105, 13.04.2006, p. 54

OJ No. L 337, 18.12.2009, p. 11

OJ No. L 281, 23.11.1995, p. 31

OJ No. L 24, 30.01.1998, p. 1

OJ No. L 204, 21.07.1998, p. 37

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