Digital Services Act 2024

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Digital Services Act 2024.

(2) This Act shall come into operation on such day or days as the Minister, following consultation with the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2.. Definitions

2. In this Act—

“Act of 2014” means the Competition and Consumer Protection Act 2014;

“Minister” means the Minister for Enterprise, Trade and Employment;

“prescribed” means prescribed by regulations made by the Minister;

“Principal Act” means the Broadcasting Act 2009.

3.. Regulations

3. (1) The Minister may make regulations for the purposes of this Act, including regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

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

(3) 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.

4.. Service of documents

4. (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 may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

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

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.

(2) For the purpose of this section, a company formed and 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 of persons shall be deemed to be ordinarily resident at its principal office or place of business.

5.. Revocation

5. Regulations 15 to 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68 of 2003) are revoked.

6.. Expenses

6. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Amendment of Principal Act

7.. Amendment of section 2 of Principal Act

7. Section 2 of the Principal Act is amended, in subsection (1), by the insertion of the following definitions:

“‘Digital Services Regulation’ means Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022^2 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act);

‘intermediary service provider’ means a provider of intermediary services;

‘Member State competent authority’ means an authority that is designated by a Member State (other than the State) as a competent authority for the purposes of Article 49(1) of the Digital Service Regulation;

‘Member State Digital Services Coordinator’ means an authority that is designated by a Member State (other than the State) as a Digital Services Coordinator for the purposes of Article 49(2) of the Digital Service Regulation;”.

8.. Amendment of section 7 of Principal Act

8. Section 7 of the Principal Act is amended by the insertion of the following subsection after subsection (5):

“(6) The Commission is designated, for the purposes of Article 49(1) of the Digital Services Regulation, as—

(a) the competent authority (other than in respect of Articles 30, 31 and 32 of that Regulation), and

(b) the Digital Services Coordinator.”.

9.. Amendment of section 33 of Principal Act

9. Section 33 of the Principal Act is amended—

(a) in subsection (1)—

(i) by the insertion of the following paragraph after paragraph (b):

“(ba) the Competition and Consumer Protection Commission;”,

and

(ii) by the insertion of the following paragraph after paragraph (d):

“(da) an intermediary service provider;”,

(b) in subsection (2)—

(i) by the insertion of the following paragraph after paragraph (b):

“(ba) in the case of subsection (1)(ba), where the Commission considers that the disclosure is necessary and proportionate—

(i) for the effective implementation of the Digital Services Regulation, or

(ii) for the purposes of transferring a complaint or part of a complaint to the Competition and Consumer Protection Commission, where a complaint, or part of a complaint made under section 201 relates to a failure to comply with the Digital Services Regulation;”,

and

(ii) by the insertion of the following paragraph after paragraph (d):

“(da) in the case of subsection (1)(da), where the Commission considers that a complaint, or part of a complaint, made under section 201 is made in relation to an intermediary service provider, and the Commission considers that the disclosure is necessary and proportionate for the purposes of considering a complaint or part of a complaint made under that section;”,

(c) by the insertion of the following subsections after subsection (3):

“(3A) Where the Commission processes or discloses special categories of personal data in accordance with this section, it shall only do so where the Commission considers that the disclosure is necessary and proportionate in accordance with the Data Protection Regulation and the Act of 2018.

(3B) The Minister may make regulations prescribing suitable and specific measures for the processing of special categories of personal data under this section.

(3C) Where personal data processed by the Commission is required for the purposes of the prevention, investigation, detection or prosecution of a criminal offence, the data—

(a) may be processed for as long as it is required for such prevention, investigation, detection or prosecution, and

(b) shall be permanently deleted after it is no longer required for such prevention, investigation, detection or prosecution.”,

and

(d) by the insertion of the following subsection after subsection (9):

“(10) In this section—

‘Act of 2018’ means the Data Protection Act 2018;

‘special categories of personal data’ has the same meaning as it has in the Act of 2018;

‘suitable and specific measures’ means measures to be taken to safeguard the fundamental rights and freedoms of data subjects in processing the personal data of those data subjects and may include measures specified in section 36(1) of the Act of 2018.”.

10.. Amendment of section 36 of Principal Act

10. Section 36 of the Principal Act is amended, in subsection (2)—

(a) by the insertion of the following paragraph after paragraph (b):

“(ba) the disclosure is made to the Competition and Consumer Protection Commission for the purposes of the Digital Services Regulation including where, in the opinion of the person making the disclosure, the information may relate to the commission of an offence under this Act,”,

and

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

“(3A) Notwithstanding any other enactment or rule of law, if information, in the opinion of any body or person referred to in paragraphs (b) to (d) of subsection (2), may relate to the commission of an offence under this Act, then the information may be disclosed by that person or body to—

(a) a Commissioner,

(b) a member of the staff of the Commission, or

(c) an authorised officer.”.

11.. Professional secrecy under Digital Services Regulation

11.The Principal Act is amended by the insertion of the following section after section 36:

“36A.(1) Notwithstanding section 36 and without prejudice to the exchange and the use of information referred to in Chapter IV of the Digital Services Regulation, a Commissioner, a member of the staff of the Commission, a person working under the supervision of the Commission or any other person involved shall not contravene Article 84 of the Regulation.

(2) A person who, without reasonable excuse, contravenes subsection (1) shall be guilty of a category 3 offence.”.

12.. Amendment of section 38 of Principal Act

12. Section 38 of the Principal Act is amended—

(a) by the deletion of subsection (1),

(b) in subsection (2), by the substitution of “any decision” for “any other decision”, and

(c) in subsection (5)(a), by the substitution of “subsection (2)” for “subsection (1) or (2)”.

13.. Amendment of section 139Z of Principal Act

13. Section 139Z of the Principal Act is amended, in subsection (1)(c), by the substitution of “children” for “minors”.

14.. Amendment of section 139ZF of Principal Act

14. (1) Section 139ZF of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) The Commission shall prepare, and may revise, an e-Commerce compliance strategy setting out its approach to ensuring that—

(a) no requirements that are inconsistent with the limitations placed on the liability of intermediary service providers by Articles 4 to 6 of the Digital Services Regulation, and

(b) no general obligation contrary to Article 8 of that Regulation to monitor the information intermediary service providers transmit or store, or actively to seek facts or circumstances indicating illegality,

are imposed on those providers by virtue of online safety codes, online safety guidance materials or advisory notices.”.

(2) The e-Commerce compliance strategy currently in operation on the commencement of subsection (1) shall continue to apply.

15.. Interpretation (Part 8B)

15. The Principal Act is amended by the substitution of the following section for section 139ZG:

“139ZG.(1) In this Part—

‘authorised officer’ means a person appointed to be an authorised officer under section 139ZH(1), and ‘the authorised officer’, in relation to an investigation, means the authorised officer carrying out the investigation;

‘contravention’ means—

(a) a failure to comply with section 46J, 46K, 46L, 46M(2) or (3), a media service code, a media service rule, section 46P(1) or (2), section 106(3), section 127(6), section 128B(1) or (2), any rules made under section 128C, an online safety code, section 159B(1) (or any rules made under section 159B(6)) or section 159C(1) (or any rules made under section 159C(3) or (6)),

(b) an infringement by a relevant intermediary service provider of any of the designated provisions of the Digital Services Regulation,

(c) anything for which section 139ZK(8A) or 139ZR(9A) or paragraph 14A of Schedule 4 provides that a person may be liable to an administrative financial sanction in accordance with this Part, or

(d) anything for which section 139ZLB(10) or 139ZZGB(7) provides that a person may be liable to an administrative financial sanction in accordance with this Part;

‘designated provision’ in relation to the Digital Services Regulation means any of the provisions of the Regulation other than Article 30, 31 or 32 or Section 5 of Chapter III;

‘Digital Services investigation’ means an investigation where the suspected contravention falls within paragraph (b) of the definition of ‘contravention’;

‘inquiry subject’ in relation to an investigation or other proceedings under this Part, means the person whose contravention or suspected contravention is the subject of the investigation or other proceedings;

‘place’ includes—

(a) a dwelling,

(b) a building,

(c) any other premises, and

(d) a vehicle, vessel, aircraft, or other means of transport;

‘relevant equipment’ means, in relation to an investigation, any electronic, photographic, magnetic, optical or other equipment, including a computer, which may be used for processing or holding relevant material;

‘relevant intermediary service provider’ means any of the following:

(a) an intermediary service provider whose main establishment is located in the State;

(b) an intermediary service provider to which Article 13(1) applies and whose legal representative designated under that Article resides or is established in the State;

(c) an intermediary service provider to which Article 13(1) applies, but which has failed to designate a legal representative under that Article;

‘relevant material’ means, in relation to an investigation, any document, information, or content, however communicated, recorded or stored, which may be relevant to the investigation;

‘very large online platform’ means an online platform designated by a decision of the European Commission under Article 33(4);

‘very large online search engine’ means an online search engine designated by a decision of the European Commission under Article 33(4).

(2) A word or expression used in this Part that is also used in the Digital Services Regulation has, unless the context otherwise requires, the same meaning in this Part as it has in that Regulation.

(3) Unless the context otherwise requires, a reference in this Part to a numbered Article is a reference to the Article so numbered of the Digital Services Regulation.”.

16.. Amendment of section 139ZI of Principal Act

16. Section 139ZI of the Principal Act is amended by the insertion of the following subsections after subsection (3):

“(4) Where the provider of a very large online platform or very large online search engine would be the inquiry subject, no direction may be given under subsection (1) in relation to a contravention that is an infringement of the Digital Services Regulation if the European Commission has initiated proceedings for the same infringement.

(5) Where the suspected contravention is an infringement of the Digital Services Regulation by a person falling within paragraph (c) of the definition of ‘relevant intermediary service provider’ in section 139ZG, a direction may be given under subsection (1) only if—

(a) the Commission has given the notification required by Article 56(7), and

(b) no notification under Article 56(7) referring to the same infringement has been given by the European Commission or a Member State Digital Services Coordinator, or any that has been given has been withdrawn.

(6) Where a direction is given under subsection (1) and the suspected contravention is an infringement of the Digital Services Regulation, the Commission shall notify—

(a) the European Commission,

(b) the European Board for Digital Services, and

(c) each Member State Digital Services Coordinator.”.

17.. Amendment of section 139ZJ of Principal Act

17. Section 139ZJ of the Principal Act is amended—

(a) by the substitution of “inquiry subject” for “provider” in each place where it occurs, and

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

“(4) 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 also give the inquiry subject notice in writing of—

(a) the Member State Digital Services Coordinators or other Member State competent authorities participating in the investigation, and

(b) the deadline for the conclusion of the investigation.”.

18.. Notice of communication under Article 58(5)

18. The Principal Act is amended by the insertion of the following section after section 139ZJ:

“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.”.

19.. Amendment of section 139ZK of Principal Act

19. Section 139ZK of the Principal Act is amended—

(a) in subsection (1)—

(i) by the insertion of “pursuant to a direction undersection 139ZI(1)” after “For the purposes of an investigation”,

(ii) by the substitution of “may, subject to subsection (1A), do any of the following” for “may do any of the following”,

(iii) in paragraph (a), by the insertion of “except in the case of an investigation to which paragraph (aa) applies,” before “subject to”,

(iv) by the insertion of the following paragraph after paragraph (a):

“(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;”,

(v) in paragraph (b), by the substitution of “(a) or (aa)” for “(a)”,