Seán Sherlock (Cork East, Labour) | Oireachtas source

I welcome this legislation. It is no easy task to transpose EU directives. I applaud the efforts of the Minister of State and his officials in this regard and in presenting this Bill. Starting with the issue of domain names, specifically .iedomain names, there are 309,953 such .iedomains. Only 278,042 of those are based in the Republic of Ireland, while 4,532 are based in Northern Ireland. The kernel of my point is that this leaves 31,911 of those .iewebsites operating from outside the island of Ireland. Where do consumers stand when they procure a product or service from a domain registered in Ireland but whose activity is offshored, perhaps in the United Kingdom or elsewhere globally, whether in the EU or in a third country? If such a company is based in the UK, where do consumers stand regarding their rights in the context of the transposition of these directives into Irish law? If consumers purchase goods and services from companies in the UK, via a .iedomain or another such domain, where stand their rights?

Despite Brexit, people in Ireland are still consuming a significant number of goods purchased online from the United Kingdom. We do not know if this legislation is silent or active on the dynamic of protecting the rights of consumers in this context. Consumers are protected in an EU context because this is an EU directive being transposed. If some clarity could be provided on this point by the Minister of State, I would be very grateful. I raise this matter because we are increasingly coming across instances of fraud where people who have logged onto a .iedomain to procure goods or services find their money has gone into the ether, the services or goods do not arrive and there is no recourse whatsoever for those consumers. This trend is on an upward trajectory. That is the first issue I wish to raise regarding this legislation.

I turn to the issue of Internet service providers, ISPs, specifically section 2 of the Bill, where there is an interpretation of an "electronic communications service". This is defined as "a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of a service providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of service". These services are then set out in section 2(a). They include "a publicly available electronic communications service that provides an internet access service". I take that to mean that if a company is an Internet services provider, and offering a broadband service encompassing several platforms, such as Wi-Fi, television services and other similar services, then the legislation covers such a service, as I understand it. The Minister of State is nodding in the affirmative.

If that is the case, the position is unclear to me, notwithstanding the Minister of State's point that the Competition and Consumer Protection Commission, the Central Bank and ComReg will all have a role in enforcing the legislation. As I understand it, under the Bill a consumer is given a general right to withhold any outstanding part of payment to the trader until the trader's obligations are fulfilled. In those circumstances, the price withheld by the consumer should be proportionate to the decrease in value of the digital content or supply that does not conform with the contract and the consumer’s decision to withhold payment must be expressed in a statement to the trader. I will use a concrete example to illustrate the outworking of that. Let us say I sign a contract with an ISP for the provision of my broadband on a residential or commercial basis and that service is subject to regular outages or broadband speeds are less than adequate, for instance, where one ISP is offering services of up to 1 GB but the service provided is far less than 1 GB and no better than 4G such that, at times, people have to switch over to 4G or even 3G because the service is so bad. In the context I have just outlined, what recourse does the consumer have? If the consumer advises the broadband provider that he or she has called its helplines on numerous occasions and is not getting the service for which, for example, he or she is paying €80 a month, is not satisfied with the service and is now withholding the following month’s bill until such time as the ISP provides him or her with the service it has contracted to provide, what mechanism is open to the consumer in that instance? As it stands, I do not see where the legislation speaks to that very dynamic. I am open to correction on this, but from my perspective and in terms of a consumer protection ethos, there does not seem to be some mechanism built into the legislation that allows the consumer to push back against the ISP without the ISP saying it will just switch off the service. There needs to be some mechanism built in, a protection for the consumer, to allow him or her to make a complaint and withhold, per the legislation, part-payment or a proportionate decrease in the value of the digital content that is being provided in a way that gives him or her some sort of assurance and confidence that he or she can do so without being penalised or the service cut off by the ISP. If the legislation can speak to that dynamic in very explicit terms, it will send a clear message to the ISPs that there is redress when the consumer has an issue.

The reason I am raising this issue specifically is that every week thousands of households that have contracts with ISPs have to go through outages and blackouts or are switching over to 3G and 4G because they are not getting the service they have entered into a contract to receive and there does not seem to be any recourse for them. Will this legislation protect the person who procures the services of an ISP? That is one element.

My understanding of the legislation is that Irish consumers are being afforded a robust network of redress options as part of their newly-found digital rights, including a right to a full refund, exchange or repair, when the digital content or digital service contract is not as described or not fit for the purpose intended. Where the trader is liable to the consumer due to any failure to supply or lack of conformity of the digital content or digital service with the digital content or digital service contract, the Bill provides that a consumer may pursue remedies against the person liable for the failure or lack of conformity. This is probably a nicer way of saying what I have been trying to say for the past five minutes. It is concise legal language that has been offered to me by the law firm, Matheson, and I acknowledge its role in that. However, it all boils down to the kernel of the point that I am making, namely, what mechanism does the consumer have, without placing an undue burden where the proof is absolute in respect of the lack of the service being provided? We cannot have a situation where we are putting consumers through hoops to have their rights vindicated. If we are talking about consumers having to go to the CCPC or ComReg on an issue such as this, they would be forgiven for thinking that ComReg might not have the capacity to deal with the individual case if there are hundreds, or possibly thousands, of those coming in its door every week. Can some mechanism be found to ensure the legislation is so robust that there is no way that the ISP can slip off the hook so easily? What I am advocating is that if a consumer decides to take a case, make a complaint or seek redress or compensation for the loss of service, they should not face an onerous burden in doing so.

I reiterate the point in regard to Brexit. Where stands the consumer in this new paradigm in which, post Brexit, we are still trying to negotiate our relationship with the United Kingdom in regard to the procurement of goods and services? Where goods or services are procured from the UK, that is another jurisdiction and obviously not subject to EU law. Is there a mechanism within this legislation that protects the rights of Irish consumers? There are probably hundreds of thousands of online transactions at a residential and commercial level every week for which there is no recourse that I can see at present. That is not anybody's fault. It is a matter for politics and begs the question as to whether there is something in the Bill that can speak to that dynamic.

I welcome the legislation. I seek some clarity from the Minister of State in regard to the registration of .ie domain names which are not held by Irish businesses. They are providing services into Ireland on a pretext that people are buying from an Irish website. If that service is being procured from third countries, for example, the US or New Zealand, what rights has the consumer in the context of procuring from a .ie domain where that domain is not registered in Ireland?

I thank the Minister of State for bringing the legislation before us. He will be very much aware of online fraud, in particular, with regard to the registration of .ie domain names. I welcome this Bill as a comprehensive leap forward. If the Minister of State can reassure us that the requisite personnel will be put in place in the statutory agencies that will regulate this space, such as ComReg and the CCPC, that will give consumers greater confidence.

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