Coimisiun na Mean
Designation
The purpose of Digital Services Act 2024 is to give effect to Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act) [“Digital Services Regulation”], in national law, where required.
It designates Coimisiún na Meán as a competent authority, known as the Digital Services Coordinator, as is required by the Digital Services Regulation. It empowers Coimisiún na Meán to conduct investigations into infringements of the Digital Services Regulation and to use investigatory powers to support investigations with other Member States Digital Services Coordinators or the European Commission.
The Digital Services Act 2024 makes provision for Coimisiún na Meán to carry out administrative tasks under the Regulation, such as certifying independent out- of-court dispute settlement bodies to resolve issues between users and platforms, awarding the status of trusted flagger to organisations so that those organisations’ contacts about illegal content can get priority treatment by online platforms, and vetting researchers looking for access to data held by very large online platforms and search engines. It also provides that An Coimisiún, will handle complaints about alleged infringements of the Regulation.
Digital Services Act 2024 revokes Regulations 15 to 18 of the European Communities (Directive 2000/31/EC) Regulations 2003 (S.I. No. 68 of 2003), known as the eCommerce Directive.
Functions
An Coimisiún can enter into commitment agreements with providers, issue compliance notices for infringement of certain Articles of the Regulation, can order interim measures be taken to address issues that have the potential to cause serious harm, and may issue a notice to a provider to end a contravention.
Digital Services Act 2024 provides that Coimisiún na Meán can impose administrative financial sanctions or daily penalty payments on providers or connected persons and in circumstances of on- going infringement, An Comisiún can apply to the High Court for an order requiring an internet service provider to block access to an intermediary service. As part of the enforcement framework it provides for a number of criminal offences.
Digital Services Act 2024 reflects the new liability regime replacing the eCommerce Directive Articles 12, 13, 14 and 15, with Articles 4, 5, 6, 8 of the Digital Services Regulation to provide for the exemption from liability for intermediary online services.
Digital Services Act 2024 provides for additional contraventions, which include where in the course of an investigation into an infringement of the Digital Services Regulation, a person obstructs or impedes an authorised officer, fails to comply with a request for information, provides false or misleading information in response to a request for information, or fails to remedy any failure to respond to a request for information or any false or misleading information given to an authorised officer.
Digital Services Act 2024 There are notification obligations for Coimisiún na Meán to the EU Commission, the European Board for Digital Services and other Member States DSCs for investigations relating to contraventions of the Digital Services Regulation. It also provides that for Very Large Online Platforms and Very Large Online Search Engines, no direction to investigate may be given if the EU Commission is investigating the same infringement, and in the case of a provider without an EU legal base no other Member State should be investigating the same infringement.
Authorised Officers
An authorised officer may carry out or request judicial authority to order inspections of premises of the inquiry subject or relevant person. An administrative financial sanction may be imposed on a person by Coimisiún na Meán, in the course of an investigation into an infringement of the Digital Services Regulation, if a person obstructs or impedes an authorised officer, fails to comply with a request for information, provides false or misleading information in response to a request for information, or fails to remedy any failure to respond to a request for information or any false or misleading information given to an authorised officer.
Digital Services Act 2024 Authorised officers may use their investigatory powers in relation to be suspected infringements of the relevant articles of the Digital Services Regulation: when engaging in a joint investigation led by another Member State; in relation to an investigation by another Member State; or further to a request for assistance in an investigation conducted by the European Commission.
Investigation & Enforcement
Coimisiún na Meán may impose a daily payment penalty on an intermediary service provider or other person to enforce an obligation imposed on them by the exercise of the investigatory powers of the authorised officer during an investigation into an infringement of the relevant Articles of the Digital Services Regulation.
The Act sets out the details of the notice that must be provided to the intermediary service or other person when An Coimisiún makes a decision to impose a daily payment penalty. The maximum penalty that may be imposed for each day during which the failure continues shall not exceed five per cent of the intermediary service provider’s, or other person’s, average daily income, or turnover, in the preceding financial year.
During an investigation of an infringement of the relevant Articles of the Digital Services Regulation, if the evidence indicates that the infringement is continuing and the infringement gives rise to a risk of serious harm, then Coimisiún na Meán may request the provider to take measures to avoid or reduce this risk.
Where the provider fails to comply with a notice to such a contravention, then it is guilty of a category 1 offence. Senior management liability may apply to relevant individuals where there is a failure to comply with interim measures under this section, subject to the consent of the Director of Public Prosecutions.
The Report of the authorised officer must also consider information or views obtained other Member States DSCs or competent authorities in a joint investigation under Article 60 of the Digital Services Regulation.
There are provisions for the exercise of powers in joint investigations, assisting another Member State Digital Services Coordinator or the European Commission. This includes the exercise of powers in joint investigations, assisting another Member State Digital Services Coordinator or the European Commission.
The final report provided to the inquiry subject should also include views of other Member States’ Digital Services.
A person may be liable for administrative financial sanctions if they do not comply with a request for further information or give false information.
The Commission will take into consideration the views of other Member States’ Digital Services Coordinators in the case of joint investigations under the Digital Services Regulation.
Digital Services Act 2024 provides that notifications of decisions related to contraventions of the Digital Services Regulation or failure to comply with interim measures or commitment agreements must be provided to the European Commission, the European Board for Digital Services and each Member State’s Digital Services Coordinator.
It also provides that in the case of joint investigations the decision must be sent to the European Commission and that Coimisiún na Meán must inform the inquiry subject that it has done so. In relation to the publication of decisions, contraventions related to a person not complying with an authorised officer are not to be published.
Sanctions I
Individuals may also be subject to administrative financial sanctions and therefore must also be enabled to make submissions. The Digital Services Act 2024 sets out the maximum administrative financial sanctions that may be imposed by Coimisiún na Meán for the contraventions defined in Part 2 of the Digital Services Act as:
- six per cent of annual income or turnover of the provider in the preceding financial year for infringements of relevant Articles of the Digital Services Regulation or for non-compliance by the provider with orders to take interim measures, or for failure of a provider to comply with a commitment agreement entered into Coimisiún na Meán.
- one per cent of annual income or turnover of a person in the preceding financial year:
for obstructing or impeding an authorised officer during an investigation, failing to comply with a request for information from an authorised officer, providing false or misleading information in response to a request from an authorised officer for information, failing to remedy any failure to comply with a request for information from the authorised officer or failing to remedy any information which is given to an authorised officer in purported compliance with a request for information and which is false or misleading.
There are penalties for failing to comply with a request for information from An Coimisiún, providing false or misleading information in response to a request for information, failing to remedy any failure to comply with a request for information or failing to remedy any information which is given to An Coimisiún in purported compliance with a request for information and which is false or misleading.
Knowingly giving false or misleading evidence on oath or affirmation during an oral hearing where the suspected contravention is an infringement of the relevant Articles of the Digital Services Regulation of the provider under an oral hearing as per the Schedule.
The amount of the administrative sanction must be proportionate to the nature of the contravention and set with a view to deterring providers and other persons from committing contraventions under the Digital Services Act.
Sanctions II
The subject of an investigation that has received a notice that Coimisiún na Meán is imposing a daily payment penalty on them, may appeal to the High Court against a decision to impose the daily payment penalty. Further to issuing a notice to end an infringement the relevant Articles of the Digital Services Regulation, Coimisiún na Meán may impose a daily penalty payment on the provider for the purpose of enforcing the notice.
Coimisiún na Meán first has to give the provider a notice in writing that it intends to impose a daily payment penalty if the provider does not take the necessary steps as set out in the “notice to end a contravention”. An Coimisiún shall also inform the provider of the maximum daily amount of the penalty that may be imposed and invite the provider to provide a written submission in relation to the level of the penalty.
To comply with the requirements of the Digital Services Regulation, Coimisiún na Meán may impose a daily penalty payment of up to five per cent of the provider’s average daily turnover in the proceeding financial year. If the provider does not end the contravention by the date specified in the “notice to end a contravention” An Coimisiún, after considering any submission received by the provider in relation to the level of the penalty, may by notice in writing to the provider, determine the level of the daily level of penalty to be imposed and impose the penalty subject to confirmation of the decision following an appeal to the High Court by the provider or on summary application to the Circuit Court by An Coimisiún to confirm the decision.
Providers can appeal a decision by the An Coimisiún to impose a daily payment penalty for failure to comply with a “notice to end a contravention” to the High Court within 28 days of receiving the notice. When a provider does not appeal a decision by Coimisiún na Meán to impose a daily penalty for failure to comply with a “notice to end a contravention”, An Coimisiún shall make an application to the Circuit Court to confirm the decision.
Access Blocking order Digital Services Regulation
Where a provider has been given a “notice to end a contravention” under section 68, and the contravention continues, Coimisiún na Meán may request the management body of the provider to propose steps to put an end to the contravention. Upon receipt of a proposal from the management body of the provider, An Coimisiún may give a further notice in writing to end a contravention stating the steps the provider must take withing a specified time period.
Where a management body of a provider fails to make a proposal for steps to end a contravention following a request from Coimisiún na Meán, or a provider does not comply with a “further notice to end a contravention”, then An Coimisiún may apply to the High Court for an order requiring that a relevant service provider block access in the State to the service which is the source of the continuing contravention.
Compliance Notice
Where a person authorised by An Coimisiún is of the opinion that a provider has infringed one or more of certain Articles of the Digital Services Regulation specified it may serve a compliance notice on the provider requiring the provider to do or to refrain from doing something in order to the stop the specified infringement of the Digital Services Regulation.
The provider may appeal against the notice. Where no appeal is brought, or where the court affirms the notice and the provider does not comply with the compliance notice by the due date, it shall be guilty of an offence and liable on summary conviction to a Class B fine or imprisonment for a term not exceeding 6 months.
Coimisiún na Meán may enter into an agreement with a relevant intermediary service provider under which the provider agrees to take measures that appear to address an issue related to compliance by the provider of any of the relevant Articles of the Digital Services Regulation. Such a “commitment agreement” will be binding on the provider and may be amended or terminated by agreement in writing.
An Coimisiún may also terminate a commitment agreement in the case that the provider does not comply with the agreement or information provided by the provider for the purpose of entering into the agreement appears to Coimisiún na Meán to have been misleading or false. Where a provider falls to comply with a commitment agreement it may be subject to an administrative sanction.
Coimisiún na Meán are to designate a person as a vetted researcher under the Digital Services Regulation. An Coimisiún may refuse or revoke the designation and applicant, or researcher may request a review of the refusal or revocation of the designation and to submit representations to An Coimisiún about the proposed revocation or refusal.
Trusted Flagger Status & Disputes
Coimisiún na Meán will award an entity trusted flagger status under the Digital Services Regulation. An Coimisiún may refuse or revoke the status of trusted flagger, and the applicant or researcher may request a review of the refusal or revocation of the award and submit representations to An Coimisiún about the proposed revocation or refusal.
Coimisiún na Meán certify entities as out of court dispute settlement bodies under the Digital Services Regulation. An Coimisiún may refuse or revoke the certification, and the entity may request a review of the refusal or revocation of the certification and submit representations about the proposed revocation or refusal.
Coimisiún na Meán can appoint a member of staff to investigate the award of trusted flagger, designation of vetted researcher or certification of out of court dispute settlement body in accordance with the Regulation.
Coimisiún na Meán shall handle complaints related to failure by providers to comply with the Digital Services Regulation, ensuring that both the complainant and the intermediary service provider that is the subject of a complaint have the right to be heard and receive appropriate information as required under the Regulation.
Offences
There are offences for providing false or misleading information to Coimisiún na Meán when applying for certification designation or awards, and for when an entity misrepresents itself as a trusted flagger.
A person may be subject to an administrative financial sanction under Part 2 of the Digital Services Bill if in an oral hearing where the suspected contravention is an infringement of relevant Articles of the Digital Services Regulation, he or she knowingly gives false or misleading evidence on oath or affirmation.