Investigations and Sanctions
“Contravention”, which includes a failure to comply with a media service code, a media service rule, or an online safety code, “investigation”, and “authorised officer”. The Commission may appoint an authorised officer, shall provide a certificate of such an appointment and may cause such an appointment to be revoked in certain circumstances.
A person authorised by the Commission may direct an authorised officer to carry out an investigation where there is reason to suspect that there has been a contravention. The authorised officer shall define the terms of the investigation in writing.
An authorised officer shall give the provider concerned notice of the commencement of an investigation. Among other matters, the notice must include a statement of the nature and particulars of the suspected contravention and allow for the provider to respond.
The 2023 Act sets out the powers of an authorised officer, including the ability to enter and search a premises, require the production of relevant material, and conduct oral hearings. A judge of the District Court may issue a warrant authorising an authorised officer to enter and search a place if the judge is satisfied that there are reasonable grounds for suspecting that relevant material is held at the place. Such a warrant will be valid for 28 days from the date of issue.
The authorised officer shall prepare a draft report after the completion of an investigation. The officer must consider various matters in preparing the draft report and provide it, along with other relevant documents, to the provider in question who will then have 28 days to make submissions. Following any revisions to the draft report, it must be provided to the provider and submitted to the Commission.
The Commission may make rules which provide for the conduct of investigations and the conduct of subsequent proceedings.
The Commission may also make guidelines with respect to the operation of Chapters 2, 3, and 4 of Part, Schedule 4 and of any rules made under the previous provision.
Conduct of investigations
Aan authorised officer may, subject to rules and guidelines made by the Commission regarding the conduct of investigations, follow such procedures for the conduct of an investigation as he or she considers appropriate. The officer must take reasonable steps to keep the relevant provider informed as to the progress of an investigation.
Decision of the Commission Division
The functions of the Commission under this Chapter must be exercised by an uneven number of the Commission, being no less than three. If a Commissioner directed that the investigation be carried out, he or she shall not exercise functions. The Acts sets out the actions which must be taken by the Commission once it has received a report from an authorised officer.
First, it must offer the provider in question the opportunity to make submissions on the final report. Following this, the Commission may conduct an oral hearing and request further information from the provider in line with this provision.
The Commission shall decide whether or not there has been, on the balance of probabilities, a relevant contravention and, if so, whether or not it should pursue the imposition of an administrative financial sanction. In making such decisions, the Commission must consider a range of evidence, including the final report of an authorised officer, and any submissions made.
Notice and Publication of Decision
The Commission shall provide appropriate notice of its decision to the provider in question and publish its decision on its website.
Where the Commission has made a decision to impose an administrative financial sanction, a provider may make submissions relating to the determination of the amount of the administrative financial sanction which is to apply.
Where the Commission has made a decision to impose an administrative financial sanction, it shall make a decision in relation to the amount of the administrative financial sanction. Notice of this determination must be provided to the provider in question and published on the Commission’s website.
The upper limits with respect to administrative financial sanctions at €20,000,000 or 10% of the relevant turnover of a provider in the financial year preceding the date of the decision of the Commission to impose a sanction, whichever is higher. In determining the amount, the Commission shall have regard to certain matters, including the nature, gravity and duration of the contravention, and the degree of harm caused as a result. It provides that the amount must be proportionate to the nature of the contravention and set with a view to deterring the provider and other providers from committing a contravention.
Appeal against Decision
A provider may appeal against a decision made by the Commission under this Part. Such an appeal may be made on the grounds that there were serious, or a series of, errors of law or in fact, that there were insufficient fair procedures, or that the sanction imposed is not proportionate. The Act also sets out the ways in which an appeal may be heard by the appropriate court, which may be the Circuit Court or High Court as determined by the quantum of administrative financial sanction.
Circuit Court Confirmation
The Commission shall, where there is no appeal by a provider of a decision of the Commission to impose an administrative financial sanction, make an application to the Circuit Court for confirmation of the decision. The Act also sets out provisions in relation to the potential decisions and actions of the Circuit Court in this context.
Administrative Financial Sanctions.
Any payments related to a decision by the Commission to impose administrative financial sanctions must be paid into, or disposed of for the benefit of, the Exchequer in such a manner as the Minister for Finance may direct.
The Commission, where a decision or determination under this Part has not yet been made, may decide to refer any questions of law arising under Chapter 3 or 4 to the High Court, which may grant leave to appeal to the Court of Appeal in certain circumstances.
The Commission may, following a decision that a contravention has occurred and where that contravention is continuing, direct the provider in question to end the contravention. A notice to do so must set out the steps necessary to end the contravention and the timeframe within which the provider should implement them. Senior management liability may apply to relevant individuals where there is a failure to comply with a notice.
Access Blocking Order
The Media Commission may apply to the High Court for an order requiring an internet service provider or a provider of an application store service to block access in the State to a relevant online service or audiovisual on-demand media service. When such an application is made by the Commission, notice must be provided to the relevant providers and services concerned. The High Court may make an access blocking order provided certain criteria detailed have been met.
Content Limitation Notice
The Commission, where it becomes aware of the availability of an item of harmful online content on a designated online service, may issue a content limitation notice to the service requiring the service to remove or disable access to that content or to limit its availability. There are certain matters that the Commission must have regard to when issuing a notice, including the technical capacity of the provider concerned and the rights of persons to which the content may pertain.
There is a procedure in relation to the issuing of a content limitation notice. First, the notice is required to contain specified information, including the category of harmful online content in which the content in question falls and the action required to be taken.
The provider shall, where it has received a content limitation notice in relation to user-generated content, take all reasonable steps to notify the uploader. Where successfully notified, the uploader and provider are provided the opportunity to make submissions to the Commission as to whether the content which is the subject of the content limitation notice is harmful online content and the nature of the limitations set out in the notice. The Commission shall, after considering such submissions, confirm the notice with or without amendments or revoke the notice. The failure to comply with the notice is an offence.
The provider or uploader of content to which a content limitation notice applies may appeal the application of a notice to the Circuit Court. The Commission shall publish on its website a notice which has been confirmed or otherwise by the Circuit Court.
Categories of Offences
There are upper limits of fines and terms of imprisonment with respect to the three categories of offences which may be prosecuted under the amended Principal Act. Summary proceedings for an offence under the amended Principal Act may be brought and prosecuted by the Commission.
There is a process which must be applied in the conduction of oral hearings under the relevant provision of the Part.