Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023

• “(k) require any person who appears to the authorised officer to be in a position to facilitate access to the documents or records stored in any data equipment or computer on the premises, land or vessel or at the place or in the vehicle or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including by giving to the authorised officer any password necessary to access the documents or records concerned, or to make the documents or records legible and comprehensible,

• (l) take possession of and detain any computer, machinery, apparatus, appliance or any equipment or part thereof on the premises, land or vessel or at the place or in the vehicle as he or she considers appropriate.”,

and

• (b) by the insertion of the following subsection after subsection (10) (inserted by section 37(e) of the Competition (Amendment) Act 2022):

• “(11) A reference in this section to a book, document or record is a reference to a book, document or record irrespective of the medium on which it may be stored.”.

125. Amendment of section 40 of Principal Act

125. Section 40 of the Principal Act is amended by the insertion of “on any land,” after “is held” and by the substitution of “the land, premises” for “the premises”.

126. Amendment of section 43 of Principal Act

126. Section 43 of the Principal Act is amended—

• (a) in subsection (1), by the substitution of “an offence under this Act or a related enactment that may be prosecuted summarily may only be prosecuted summarily” for “a summary offence under this Act or a related enactment may be prosecuted only”, and

• (b) by the insertion of the following subsection after subsection (3):

• “(4) Section 1(1) of the Probation of Offenders Act 1907 shall not apply to an offence under this Act or a related enactment.”.

127. Undertaking not to overcharge or charge for services not supplied

127. The Principal Act is amended by the substitution of the following section for section 45:

“45.(1) A person shall not impose, or purport to impose, a charge for supplying an electronic communications service or electronic communications product to an end-user that exceeds the amount for that service or product specified—

• (a) in the undertaking’s published tariff of charges, or

• (b) in a written statement previously made or given to the end-user by the undertaking in relation to that supply.

• (2) A person shall not impose, or purport to impose, a charge for an electronic communications service or electronic communications product that was—

  • (a) supplied to an end-user but not requested by him or her,

  • (b) requested by an end-user but not supplied to him or her, or

  • (c) neither supplied to, nor requested by, a person.

• (3) A person that contravenes subsection (1) or (2) commits an offence and is liable on summary conviction to a class A fine.

• (4) In carrying out an investigation to ascertain whether a person may be contravening or may have contravened subsection (1) or (2), the Commission may conduct an audit of the undertaking’s billing system.

• (5) In this section, ‘tariff of charges’, in relation to a person, includes any list setting out the prices charged by the undertaking for providing electronic communications services or electronic communications products to end-users.”.

128. Commission may apply to High Court for order to restrain certain repeated or apprehended contraventions

128. The Principal Act is amended by the substitution of the following section for section 46:

“46.(1) If it appears to the Commission that a person is contravening or has contravened or, having contravened, may in the future contravene—

• (a) section 45(1) or (2),

• (b) Regulation 89 or 90 of the European Union (Electronic Communications Code) Regulations 2022, or

• (c) section 13(1) of the Communications Regulation (Premium Rate Services and Electronic Communications Infrastructure) Act 2010,

the Commission may apply to the High Court, by motion, for an order under subsection (7) restraining such contravention.

• (2) The Commission may conduct an audit of—

  • (a) the billing system, switching system or contract change system of an undertaking, or

  • (b) the billing system of a premium rate service provider,

  prior to making an application to the High Court referred to in subsection (1).

• (3) The High Court may hear the application under subsection (1) only if it is satisfied that a copy of the application has been served on the undertaking or premium rate service provider concerned. On being served with such a copy, that undertaking or provider becomes the respondent to the application.

• (4) The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1).

• (5) The High Court may not require the Commission to give an undertaking as to damages as a condition for the granting of an order under subsection (4).

• (6) The Court may not refuse interim or interlocutory relief under subsection (4) merely because the Commission might not suffer damage if relief were not granted pending determination of the application.

• (7) On the hearing of an application made under subsection (1), the High Court may make a restraining order requiring the undertaking or premium rate service provider to cease the contravention concerned and not to repeat it, or, if it is of the opinion that the application is not substantiated, refuse the application.

• (8) An application for a restraining order under subsection (1) may include or be accompanied by a further application for an order directing the respondent to pay to the Commission a financial penalty of such amount as is proposed by the Commission having regard to the circumstances of the contravention.

• (9) On hearing the further application, the High Court may if it is satisfied, having previously been satisfied that the respondent has contravened the provision concerned, and having regard to the circumstances surrounding the contravention, order the respondent to pay to the Commission a financial penalty of such amount as is specified in the order. The amount may be more or less than the amount proposed by the Commission.

• (10) The circumstances surrounding the contravention referred to in subsection (9) include (but are not limited to) the following:

  • (a) the duration of the contravention;

  • (b) the effect of the contravention on other parties to the relevant decision, and on end-users and on end-users of premium rate services;

  • (c) the submission of the Commission with respect to what it considers to be the appropriate amount;

  • (d) any excuse or explanation for the contravention provided by the respondent.

• (11) If the High Court makes an order under this section, it may make such ancillary orders as it considers appropriate.”.

129. Amendment of section 46B(1) of Principal Act

129. Section 46B(1) of the Principal Act is amended by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “this Act”.

130. Amendment of section 46D of Principal Act

130. Section 46D of the Principal Act is amended—

• (a) in subsection (1), by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “proceedings under this Act”, and

• (b) in subsection (1), by the insertion of “, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023,” after “proceedings under this Act”.

131. Amendment of section 57A of Principal Act

131. Section 57A(8) of the Principal Act is amended by the substitution of the following paragraph for paragraph (b):

• “(b) the effect of the non-compliance on other parties to the relevant decision, to end-users and to end-users of premium rate services.”.

132. Service of notices

132. The Principal Act is amended by the substitution of the following section for section 60:

“60. (1) Where a notice is required to be given to a person under this Act, the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023 or a related enactment, the notice shall be given in one of the following ways:

• (a) by delivering it to the person (where the person is an individual);

• (b) by leaving it addressed to the person at a relevant address;

• (c) by sending it, addressed to the person, to a relevant address by pre-paid registered post or other pre-paid recorded delivery service;

• (d) by sending it to the person by electronic means in accordance with subsection (5).

• (2) In subsection (1)(b) and (c), ‘relevant address’ means any of the following:

  • (a) the address at which the person ordinarily resides;

  • (b) an address at which the person carries on business;

  • (c) a postal address at which the person has agreed in writing to receive notices under this Act or a related enactment.

• (3) For the purposes of subsection (2)(a), a company registered under the Companies Act 2014, or an existing company within the meaning of that Act, is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body is deemed to be ordinarily resident at its principal office or place of business.

• (4) For the purposes of subsection (1)(d), a notice is sent to a person by electronic means in accordance with this subsection if—

  • (a) it is sent to an email address, fax number, or other electronic contact point, at which the person has agreed in writing to receive notices under this Act, and

  • (b) a record that the email, fax, or other electronic message has been sent is made for the sender by the email system, fax machine, or other electronic system used.

• (5) A notice to which subsection (1) applies—

  • (a) if given in accordance with subsection (1)(a), is given at the time when it is delivered,

  • (b) if given in accordance with subsection (1)(b), is given at the time when it is left at the relevant address,

  • (c) if given in accordance with subsection (1)(c), is deemed, unless the contrary is proved, to be given at the time when it would be delivered in the ordinary course of the post or other service used, and

  • (d) if given in accordance with subsection (1)(d), is deemed, unless the contrary is proved, to be given at the time stated in the record referred to in subsection (4)(b).

• (6) In this section, ‘notice’ includes notification.”.

133. Miscellaneous amendments to Principal Act

133. The Principal Act is amended by the insertion of the following section after section 60:

“Privileged legal material

61. (1) Subject to subsection (2), nothing in this Act or a related enactment shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material.

• (2) The disclosure of information may be compelled, or possession of it taken, pursuant to this Act or a related enactment, notwithstanding that it is apprehended that the information is privileged legal material, provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the High Court of the issue as to whether the information is privileged legal material.

• (3) Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), information has been disclosed or taken possession of pursuant to this Act or a related enactment, the person—

  • (a) to whom such information has been so disclosed, or

  • (b) who has taken possession of it, shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the High Court as soon as is reasonably practicable for a determination as to whether the information is privileged legal material.

• (4) A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, pursuant to this Act, may apply to the High Court for a determination as to whether the information is privileged legal material.

• (5) Pending the making of a final determination of an application under subsection (3) or (4), the High Court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to—

  • (a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court,

  • (b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of—

    • (i) examining the information, and

    • (ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material.

• (6) Subsections (1) to (5) also apply to irrelevant material and references in those subsections to ‘privileged legal material’ shall be construed as referring to irrelevant material as the case may be.

• (7) An application under subsection (3), (4) or (5) shall be by motion and may, if the High Court directs, be heard otherwise than in public.

• (8) In this section—

‘computer’ includes a personal organiser or any other electronic means of information storage or retrieval;

‘information’ means information contained in a book, document or record, a computer or otherwise;

‘irrelevant material’ means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds that it is not relevant to the purpose for which it is sought by the Commission;

‘privileged legal material’ means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds of legal professional privilege.

Freedom of Information Act not to apply to certain confidential information

62. The Freedom of Information Act 2014 shall not apply to information classified as confidential which the Commission receives from the European Commission or from the national regulatory authority or competent authority of another Member State in accordance with Article 20 of Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018⁸.

Publication of certain notices

63. Before taking any measure in accordance with Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018 ⁹ which will have a significant impact on a relevant market, the Commission shall publish the text of the proposed measure, give the reasons for it, including information as to which of the Commission’s statutory powers gives rise to the measure, and specify the period within which submissions relating to the proposal may be made by interested parties.”.

134. Amendment to Part 2 of Schedule 1 to Principal Act

134. Part 2 of Schedule 1 (inserted by section 18 of the Communications Regulation (Amendment) Act 2007) to the Principal Act is amended—

• (a) in paragraph (58), by substituting “(S.I. No. 414 of 2006);” for “(S.I. No. 414 of 2006).”, and

• (b) by the insertion of the following paragraphs after paragraph (58):

• “(59) European Communities (Electromagnetic Compatibility) Regulations 2016 (S.I. No. 145 of 2016);

• (60) European Union (Low Voltage Electrical Equipment) Regulations 2016 (S.I. No. 345 of 2016);

• (61) European Union (Reduction of Cost of Deploying High-Speed Public Communications Networks) Regulations 2016 (S.I. No. 391 of 2016);

• (62) European Communities (Electromagnetic Compatibility) Regulations 2017 (S.I. No. 69 of 2017);

• (63) European Union (Radio Equipment) Regulations 2017 (S.I. No. 248 of 2017);

• (64) European Union (Open Internet Access) Regulations 2019 (S.I. No. 343 of 2019);

• (65) European Union (Retail Charges for Regulated Intra-EU Communications) Regulations 2020 (S.I. No. 668 of 2020);

• (66) European Union (Low Voltage Electrical Equipment) (Amendment) Regulations 2022 (S.I. No. 14 of 2022);

• (67) European Union (Mobile Telephone Roaming) Regulations 2022 (S.I. No. 315 of 2022).”.

PART 10 Amendments to Digital Hub Development Agency Act 2003

135. Amendment of Digital Hub Development Agency Act 2003

135. The Digital Hub Development Agency Act 2003 is amended—

• (a) in section 15(1), by the substitution of “8 members” for “14 members”, and

• (b) in section 17(3), by the substitution of “4” for “6”.

PART 11 Amendment to Postal and Telecommunications Services Act 1983

136. Financing for the purposes of maintaining post office network and countering consequences of Brexit

136. The Postal and Telecommunications Services Act 1983 is amended by the insertion of the following section after section 29:

“29A. (1) The Minister may, out of such monies as are available to him or her from monies provided by the Oireachtas, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, make available to the postal company a sum not exceeding €30,000,000 for the purposes of maintaining a network of post offices.

• (2) The Minister may, out of such monies as are available to him or her from the Brexit Adjustment Reserve established under Regulation (EU) 2021/1755 of the European Parliament and of the Council of 6 October 2021¹⁰, with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform, make available to the postal company a sum not exceeding €25,000,000 for the purposes of providing support to the postal company to counter the adverse economic and social consequences of the withdrawal of the United Kingdom from the European Union.

• (3) Any amounts made available to the postal company under subsection (1) or (2) shall be provided in such form and manner and on such terms and conditions as may be agreed between the Minister and the company with the consent of the Minister for Public Expenditure, National Development Plan Delivery and Reform.”.

Footnotes