Dara Calleary (Mayo, Fianna Fail) | Oireachtas source

I thank the Senator. I oppose amendment No. 8, which is grouped with amendments Nos. 9 to 12, inclusive, 21, 43, 52 and 53. All those amendments relate to proposals to make certain actions obligatory for Coimisiún na Meán or the Consumer and Competition Protection Commission, CCPC.

The Digital Services Bill provides that during an investigation into a suspected contravention, authorised officers of Coimisiún na Meán and the CCPC may impose a daily penalty payment on a person in order to enforce an obligation imposed on that person by the exercise of the investigatory powers of the authorised officers. Amendment No. 8 is superseded by amendment No. 9, which proposes that the Bill be changed to oblige Coimisiún na Meán to impose a daily payment where the person in non-compliance with their obligations is a very large online platform or search engine. However, Coimisiún na Meán needs to be able to operate with sufficient flexibility to make decisions that are appropriate to the specific case at hand. For example, the regulators may consider it more prudent to not use the option to impose a daily penalty payment if there are other options they can pursue to finalise the investigation.

Amendment No. 10 proposes that the Bill be amended in order that where it appears to an authorised officer of Coimisiún na Meán that is necessary to impose a daily penalty payment on a person, then the authorised officer must issue a notice to the person setting out their obligations and informing them that failure to comply could lead to the imposition of a daily penalty payment. However, as has already been outlined, while it may seem necessary to impose a daily penalty payment to achieve compliance with a person’s obligations, as before, there may be other investigatory options open to the authorised officer that could result in a sufficient outcome to progress the investigation. Penalties for non-compliant behaviour can be applied at the end of an investigation and it may be more appropriate to do so in some cases.

Amendment No. 21 proposes that the Bill be amended in order that where a provider has been served with a notice to end a contravention that is an infringement of the digital services regulation, Coimisiún na Meán must impose a daily penalty payment. The Bill as it stands makes provision that Coimisiún na Meán “may” impose a daily penalty payment. This is set out as a tool available to the regulator in the event that the provider does not comply with the notice to end a contravention. However, amendment No. 21 would have the effect of obliging Coimisiún na Meán to impose a penalty payment on a provider to which it had issued a notice to end a contravention. The provider could have complied with a notice to end the contravention but were this amendment to be accepted, Coimisiún na Meán would still be obliged to impose a daily penalty payment. This is not in keeping with the rules of the digital services regulation in terms of penalties, nor would it be an appropriate practice for the regulator.

The Bill currently provides that if during an investigation it appears to Coimisiún na Meán or to the CCPC that a provider is committing a contravention of the digital services regulation and the suspected contravention gives rise to a risk of a serious harm occurring, then Coimisiún na Meán or the CCPC may issue a notice to a provider to take interim measures. Amendment No. 12 proposes a change to the Bill that would make it obligatory for Coimisiún na Meán to issue such a notice if the provider under investigation is a VLOP or VLOSE.

Amendment No. 43 proposes a change to the Bill that would make it obligatory for the CCPC to issue such a notice, irrespective of whether the provider under question is a VLOP or a VLOSE.

Amendment No. 52 has the effect of making it obligatory for the CCPC to issue a notice to end a contravention in the case where it has been confirmed that an infringement of Articles 30 to 32, inclusive, of the regulation has occurred and is continuing, rather than it being an option for the CCPC to issue such a notice to end the contravention.

Amendment No. 53 proposes that when a provider has not complied with a notice to end a contravention and the contravention is continuing, that it be mandatory for the CCPC to issue a notice requesting the management body of the provider to propose the steps required to end the contravention. What we do not want is to inadvertently tie the hands of regulators. If the aforementioned amendments were to be introduced, I feel there is the potential for this to happen. I know that is not the intention, but we have to be aware of that risk.

The Digital Services Bill empowers Coimisiún na Meán and the CCPC to operate with a range of enforcement tools, as set out in the regulation. The commissions need to be able to apply these in the most effective ways, and the tools utilised in one case may not be appropriate for another. We do not want to force Coimisiún na Meán or the CCPC to take actions that do not allow them to make the best decisions and take the most effective approach to conclude investigations, make decisions, stop infringements and impose sanctions for those breaches. On the basis of what I have outlined, I oppose the amendments.