An Act to amend the communications regulation Act 2002 to confer additional functions on the commission for communications regulation; to make further provision for the enforcement of that Act; to provide for the establishment and operation of an emergency call answering service (ECAS); to amend the electronic commerce Act 2000 with respect to the registration of domain names; and to make consequential amendments to certain other Acts and to provide for related matters.
This Act may be cited as the Communications Regulation (Amendment) Act 2007.
(2)
This Act comes into operation on such day or days as the Minister for Communications, Marine and Natural Resources may appoint by order or orders either generally or with reference to any particular purpose or provision. Different days may be appointed for different purposes or different provisions.
2-
Principal Act defined
In this Act “ Principal Act ” means the Communications Regulation Act 2002 .
Amendment of section 2 of Principal Act (interpretation)
Section 2 of the Principal Act is amended as follows:
(a)
by inserting in subsection (1) the following definition after the definition of “Act of 1996”:
“ ‘ associate ’, in relation to an undertaking, means—
(a)
a holding company of the undertaking, or
(b)
a subsidiary company of the undertaking, or
(c)
a company that is a subsidiary of a body corporate, if the undertaking is also a subsidiary of the body, but neither company is a subsidiary of the other, or
(d)
a body corporate that is not a subsidiary of the undertaking but in respect of which the undertaking is beneficially entitled to more than 20 per cent of the nominal value of either—
(i)
the allotted share capital of the body, or
(ii)
the shares carrying voting rights (other than voting rights which arise only in specified circumstances) of the body,
or
(e)
a partnership or joint venture in which the undertaking has a financial interest;”;
(b)
by inserting in subsection (1) the following definition after the definition of “associated facilities”:
“ ‘ association of undertakings ’ means a body corporate that comprises one or more undertakings but is not itself an undertaking;”;
(c)
by inserting in subsection (1) the following definition after the definition of “electronic communications service”:
“ ‘ end user ’, in relation to an electronic communications service or associated facility, means a person to whom such a service is supplied, or who has asked for the supply of such a service or facility, otherwise than for the purpose of resupply;”;
(d)
by inserting in subsection (1) the following definitions after the definition of “establishment day”:
“ ‘ failure to comply ’ includes contravene;
‘ financial year ’, in relation to the Commission, means the financial year of the Commission as specified in or in accordance with section 31A;”;
(e)
by inserting in subsection (1) the following definition after the definition of “prescribed”:
“ ‘ related enactment ’ means—
(a)
an enactment specified in Part 1 of Schedule 1, or
(b)
a statutory instrument specified in Part 2 of that Schedule, or
(c)
a statutory instrument made by the Minister for the purpose of giving effect to an act of an institution of the European Communities relating to—
(i)
the provision of an electronic communications service, an electronic communications network or associated facility, or
(ii)
the radio frequency spectrum or national numbering resource, or
(iii)
a postal service,
or
(d)
a statutory instrument made by the Commission under an Act specified in Part 1 of Schedule 1, or
(e)
any Act or statutory instrument declared by a provision of another Act or statutory instrument to be a related enactment for the purposes of this Act;”;
(f)
by inserting in subsection (1) the following definition after the definition of “television set”:
“ ‘ this Act ’ includes all statutory instruments made under this Act;”;
(g)
by repealing subsection (2).
4-
Repeal of section 9 and miscellaneous amendments to other enactments
(1)
Section 9 of the Principal Act is repealed.
(2)
The Acts specified in Schedule 1 are amended as indicated in that Schedule.
(3)
The statutory instruments specified in Schedule 2 are amended as indicated in that Schedule. The fact that those instruments are so amended does not preclude their subsequent amendment by the relevant instrument-making authority.
(4)
The savings and transitional provisions specified in Schedule 3 have effect.
5-
Amendment of section 10 of Principal Act (functions of Commission)
Section 10 of the Principal Act is amended as follows:
(a)
by substituting “are” for “shall be”, where first occurring;
(b)
by inserting the following paragraph after subsection (1)(c):
“(ca)
to monitor the quality and efficiency of the emergency call answering service established under Part 6,”;
(c)
by substituting the following paragraphs for subsection (1)(d):
“(d)
to carry out investigations into matters relating to the supply of, and access to, electronic communications services, electronic communications networks and associated facilities and the transmission of such services on such networks,
(da)
for the purpose of contributing to an open and competitive market and also for statistical purposes, to collect, compile, extract, disseminate and publish information from undertakings relating to the provision of electronic communications services, electronic communications networks and associated facilities and the transmission of such services on those networks, and”;
(d)
by substituting the following subsection for subsection (2):
“(2)
The Commission may carry out an investigation referred to in subsection (1) either on its own initiative or as a result of a complaint made by an end user or an undertaking.”;
(e)
in subsection (3), by substituting “under this or any other Act” for “under this Act”.
6-
Insertion into Principal Act of new sections 13A to 13E
The Principal Act is amended by inserting the following sections after section 13:
13A.
“Purpose of sections 13B and 13C
The purpose of sections 13B and 13C is to enable the Minister to obtain information in order to formulate policies and plans to deal with emergencies and network security issues that may arise in connection with the provision of electronic communications services.
13B.
Power of Minister to obtain information from Commission
For the purpose specified in section 13A, the Minister may, by notice in writing, require the Commission to provide the Minister with written information concerning either or both of the following:
(a)
the technical operation or performance of electronic communications networks and infrastructures in the State;
(b)
the breakdown or malfunctioning of an electronic communications network.
13C.
Power of Minister to obtain information from undertaking
(1)
For the purpose specified in section 13A, the Minister may, by notice in writing, require an undertaking to provide the Minister with written information concerning all or any of the following:
(a)
the technical operation or performance of the undertaking’s electronic communications service in the context of the relevant electronic communications network;
(b)
the breakdown or malfunctioning of any part of the undertaking’s electronic communications service;
(c)
the operation of the undertaking in relation to electronic communications infrastructure.
(2)
An undertaking commits an offence if it—
(a)
fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Minister allows, or
(b)
in purporting to comply with such a requirement, provides information to the Minister that the undertaking knows to be false or misleading.
(3)
In proceedings for an offence involving a failure by an undertaking to comply with a requirement made under subsection (1), it is a defence if the undertaking establishes—
(a)
that it did not know and could not be reasonably expected to know or ascertain the required information, or
(b)
that the disclosure of the information was prohibited by a law of the State.
(4)
An undertaking that commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding €5,000.
(5)
If, after being convicted of an offence under subsection (2) or this subsection, an undertaking continues to fail to do the relevant act, the person commits a further offence on each day or part of a day during which the failure continues and is liable on summary conviction to a fine not exceeding €1,000 for each such further offence. However, if an undertaking is tried for 6 or more such further offences that are alleged to have been committed on successive days, the maximum fine that can be imposed for those offences at the trial is €5,000.
13D.
Power of Commission to obtain information from undertaking
(1)
The Commission may at any time, by notice in writing, require an undertaking to provide it with such written information as it considers necessary to enable it to carry out its functions or to comply with a requirement made to it by the Minister under section 13B.
(2)
An undertaking commits an offence if it—
(a)
fails to comply with a requirement made under subsection (1) within the period specified in the notice or within such extended period as the Commission allows, or
(b)
in purporting to comply with such a requirement, provides to the Commission information that the undertaking knows to be false or misleading.
(3)
In proceedings for an offence involving a failure by an undertaking to comply with a requirement made under subsection (1), it is a defence if the undertaking establishes—
(a)
that it did not know and could not be reasonably expected to know or ascertain the required information, or
(b)
that the disclosure of the information was prohibited by a law of the State.
(4)
An undertaking that commits an offence under subsection (2) is liable on summary conviction to a fine not exceeding €5,000.
(5)
If, after being convicted of an offence under this section, an undertaking continues to fail to do the relevant act, the undertaking commits a further offence on each day or part of a day during which the failure continues and is liable on summary conviction to a fine not exceeding €1,000 for each such further offence. However, if an undertaking is tried for 6 or more such further offences that are alleged to have been committed on successive days, the maximum fine that can be imposed for those offences at the trial is €5,000.
13E.
Alternative procedure for enforcement of section 13C or 13D
(1)
As an alternative to bringing a prosecution for an offence against section 13C or 13D, the Minister or the Commission may apply to the High Court to make a compliance order under subsection (4). Such an application is to be by motion.
(2)
The High Court may hear the application only if it is satisfied that a copy of the application has been served on the undertaking concerned. On being served with such a copy, the undertaking becomes the respondent to the application.
(3)
The High Court may make such interim or interlocutory order as it considers appropriate pending determination of an application made under subsection (1). The Court may not refuse interim or interlocutory relief merely because the Minister or Commission may not suffer damage if relief were not granted pending determination of the application.
(4)
On the hearing of an application made under subsection (1), the High Court may make an order requiring the undertaking to comply with the relevant section or may refuse the application.
(5)
If the High Court makes an order under subsection (4), it may make such ancillary orders as it considers appropriate.”.
7-
Insertion into Principal Act of new sections 24A to 24C
The Principal Act is amended by inserting the following sections after section 24:
24A.
“Protection of whistleblowers
(1)
A person who makes an appropriate disclosure of information to the Commission about the conduct of an undertaking, an associate of an undertaking or an association of undertakings incurs no civil or criminal liability for having done so.
(2)
For the purpose of subsection (1), a person makes an appropriate disclosure of information about the conduct of an undertaking, or an associate of an undertaking or an association of undertakings only if—
(a)
the conduct relates to the provision of an electronic communications network or service or an associated facility, and
(b)
the person—
(i)
believes on reasonable grounds that the information is true, or
(ii)
not being able to form a belief on reasonable grounds about the truth of the information, believes on reasonable grounds that the information may be true and to be of sufficient significance to justify its disclosure with a view to enabling its truth to be investigated by the Commission or by a law enforcement authority that has a legitimate interest in receiving the information (such as the Garda Síochána).
(3)
The Commission may not divulge the identity of a person who has made an appropriate disclosure to it without first obtaining the person’s consent, except in so far as it may be necessary to ensure proper investigation of the matters to which the disclosure relates. This subsection applies despite any other enactment or rule of common law to the contrary.
(4)
If a person has made an appropriate disclosure to the Commission, the Commission shall, so far as practicable and in accordance with the law, notify the person of the outcome of any investigation into the matters to which the disclosure relates.
(5)
The Commission may decline to accept or deal with a disclosure of information made to it by a person about the conduct of an undertaking, an associate of an undertaking or an association of undertakings if it is satisfied on reasonable grounds that the information is false or misleading or that the disclosure is frivolous or vexatious.
24B.
Tortious liability of undertaking or associate for victimising whistleblower
(1)
If an undertaking, an associate of an undertaking or an association of undertakings causes detriment to a person because the person or a third person has made, or threatened to make, an appropriate disclosure of information to the Commission or a law enforcement authority (such as the Garda Síochána) either about the conduct of the undertaking or about the conduct of the associate or association, the person has a right of action in tort against the undertaking, associate or association.
(2)
In this section, ‘detriment’ includes—
(a)
injury, damage or loss, or
(b)
intimidation or harassment, or
(c)
discrimination, disadvantage or adverse treatment in relation to a person’s employment, or
(d)
a threat of reprisal.
24C.
Offence to make false disclosure
A person who makes a disclosure of information about the conduct of an undertaking, an associate of an undertaking or an association of undertakings, knowing the information to be false or misleading commits an offence and is liable—
(a)
on conviction on indictment, to a fine not exceeding €50,000, or
(b)
on summary conviction, to a fine not exceeding €5,000.”.
8-
Amendment of section 30 of Principal Act (levies and fees)
Section 30 of the Principal Act is amended by substituting the following subsection for subsection (6):
“(6)
Subject to subsections (7) and (8), the Commission is entitled to retain for its own use all fees and levies paid to or recovered by it under this Act, a related enactment or any other enactment that expressly provides for a fee or levy to be paid to the Commission.”.
9-
Insertion into Principal Act of new sections 31A to 31C
The Principal Act is amended by inserting the following sections after section 31:
31A.
“Financial year of Commission
(1)
The financial year of the Commission is—
(a)
the period of 12 months beginning on 1 July in each year, or
(b)
if the Commission has published a notice in accordance with subsection (2), the period specified in the notice.
(2)
The Commission may, by notice published in Iris Oifigiúil, specify as the Commission’s financial year a period different from that specified in subsection (1)(a) or previously specified under this subsection.
31B.
Commission to prepare annual action plan
(1)
Before the end of each financial year of the Commission, the Commission shall—
(a)
prepare an action plan setting out the principal activities that it proposes to undertake during the ensuing financial year, and
(b)
present the plan to the Minister and arrange for a copy of the plan to be laid before each House of the Oireachtas.
(2)
The action plan shall segregate the relevant activities according to the Commission’s functions relating to—
(a)
regulating electronic communications, and
(b)
managing the radio frequency spectrum, and
(c)
regulating postal services.
(3)
In preparing the action plan, the Commission shall have regard to its current strategy statement.
(4)
As soon as practicable after preparing an action plan, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.
31C.
Commission to prepare annual financial forecast
(1)
Before the end of each financial year of the Commission, the Commission shall—
(a)
prepare a financial forecast showing estimates of the Commission’s revenue and expenditure for the ensuing financial year in relation to the activities referred to in the Commission’s action plan for that year, and
(b)
present the forecast to the Minister.
(2)
In preparing its annual financial forecast, the Commission shall estimate the amounts of revenue expected to be derived, and the amount of expenditure expected to be made, in respect of each of its functions relating to electronic communications, managing the radio frequency spectrum and postal services.
(3)
As soon as practicable after preparing its annual financial forecast, the Commission shall publish it in a form and manner that will enable members of the public to have access to it.”.
10-
Insertion into Principal Act of new Part 2A
The Principal Act is amended by inserting the following Part after section 38:
Special Powers to Require Persons to Give Evidence or Produce Documents
38A.
Commission may require persons to give evidence or produce documents
(1)
If the Commission believes on reasonable grounds that a person may be able to give evidence, or to produce a document, that relates to a matter concerning the performance or exercise of any of the Commission’s functions or objectives, it may serve on the person a notice requiring the person to appear before it—
(a)
to give evidence about the matter, or
(b)
to produce the document for examination.
(2)
The notice shall specify—
(a)
the matter to which the evidence or document relates, and
(b)
the date, time and place at which the person is required to appear before the Commission.
(3)
The notice may require the person concerned to appear before a specified Commissioner or a specified member of the Commission’s staff and, if it does so, a reference in this Part to the Commission is to be read as a reference to the Commissioner or staff member concerned.
38B.
Conduct of proceeding under this Part
(1)
A person who appears before the Commission in compliance with a requirement made under section 38A may be required to swear an oath or make an affirmation.
(2)
An oath or affirmation must be administered by the Commission.
(3)
A person who appears before the Commission under section 38A is entitled to be accompanied by a barrister or solicitor or, with the approval of the Commission, any other person..
38C.
Proceeding under this Part to be normally in private
(1)
Except as provided by this section, evidence to be given, or a document to be produced, to the Commission by a person who appears before it in compliance with a requirement made under section 38A is to be given or produced in private.
(2)
If a person who appears before the Commission in compliance with a requirement made under section 38A requests the matter to be dealt with in public, the Commission shall comply with the request.
(3)
If the Commission is satisfied that it is desirable in the public interest that the evidence to be given, or the document to be produced, should be given or produced in public, the Commission may direct accordingly.
(4)
If the evidence is to be given, or the document is to be produced, in private, the Commission may do either of the following:
(a)
give directions as to the persons who may be present during the proceeding;
(b)
give directions preventing or restricting the publication of the whole or any part of the evidence or of matters contained in the document.
(5)
Nothing in a direction given under subsection (4) may prevent the presence of—
(a)
a barrister, solicitor or other person who is representing the person who is appearing before the Commission, or
(b)
a Commissioner or a member of the Commission’s staff.
(6)
If the evidence is to be given, or the document is to be produced, in private, a person (other than the person required to appear before the Commission, that person’s barrister, solicitor or other representative, a Commissioner or a member of the Commission’s staff) may be present only if entitled to be present because of a direction given under subsection (4)(a).
(7)
A person who contravenes subsection (6) commits an offence.
38D.
Offence to fail to appear before Commission
(1)
A person commits an offence if, having been required to appear before the Commission in compliance with a requirement made under section 38A, the person fails to comply with the requirement, and has not been excused, or released from further attendance, by the Commission.
(2)
Subsection (1) does not apply if the person has a reasonable excuse.
38E.
Offence to refuse to be sworn or to answer question
(1)
A person appearing before the Commission in compliance with a requirement made under section 38A, commits an offence if the person—
(a)
refuses or fails to swear an oath, or to make an affirmation, on being required to do so by the Commission, or
(b)
refuses or fails to give evidence in compliance with a requirement made under section 38A, or refuses or fails to answer a question put to the person by the Commission in relation to any such evidence, or
(c)
refuses or fails to produce a document that is required to be produced in compliance with such a requirement.
(2)
Subsection (1) does not apply if the person has a reasonable excuse.
(3)
It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to answer a question on the ground that the answer might tend to incriminate the person or to expose the person to a penalty.
(4)
It is a reasonable excuse for the purposes of subsection (2) for a person to refuse or fail to produce a document on the ground that the production of the document might tend to incriminate the person or to expose the person to a penalty.
(5)
Subsections (3) and (4) do not limit what is a reasonable excuse for the purposes of subsection (2).
38F.
Protection of persons appearing before Commission under section 38A
Subject to this Part, a person who appears before the Commission in compliance with a requirement made under section 38A has the same protection, and is, in addition to the offences under this Part, subject to the same liabilities, as a witness in proceedings in the High Court.
38G.
Payment of allowances and expenses to persons who appear before Commission
(1)
A person who appears before the Commission in compliance with a requirement made under section 38A is entitled to be paid such allowances and travelling or other expenses as are payable to or in respect of a witness attending in civil proceedings before the High Court.
(2)
All allowances and expenses payable under subsection (1) are payable by the Commission.
38H.
Trial of offences under this Part
(1)
An offence under this Part is triable summarily.
(2)
A person found guilty of an offence under this Part is liable to a fine not exceeding €5,000.”.
