The Digital Services Bill (“DSB”), which sets out how supervision and enforcement of intermediary services under the Digital Services Act (“DSA”) will be affected in Ireland, was published by the Oireachtas on 5 December 2023.
As an EU Regulation, the DSA has direct effect in all Member States (including Ireland) without the need for national implementing legislation. The DSA fully applies to very large online platforms (“VLOPs”) and search engines (“VLOSEs”) since August 2023 and will apply to the remainder of intermediary services from 17 February 2024.
The DSB fleshes out key aspects of the DSA in Ireland and includes derogations in relation to investigation and enforcement.
The DSB designates Coimisiún na Meán (“CnM”), which was established under the Online Safety and Media Regulation Act, as Ireland’s main Digital Services Coordinator and the Competition and Consumer Protection Commission (“CCPC”) is envisaged to be a competent authority for the purposes of Articles 30 to 32 DSA which relate to providers of online marketplaces which allow users to enter into distance contracts.
Investigation and Enforcement
The competent authorities will have powers to investigate infringements, issue compliance notices and order the cessation of DSA infringements, apply for orders to block access to an intermediary service and impose administrative fines and daily penalty payments. As regards VLOPs and VLOSEs, the European Commission is primarily competent to enforce the DSA and the CnM and CCPCs can only investigate an infringement provided the European Commission has not initiated proceedings.
Authorised officers of the competent authorities may also serve a compliance notice on service providers requiring them to cease the infringement. Failure to comply with a compliance notice by the specified due date will constitute a criminal office. Compliance notices will be subject to appear before the courts.
The competent authorities may enter into agreements with a relevant service provider whereby the provider undertakes to address an identified compliance issue. Failure to comply with a commitment agreement may result in an administrative sanction.
Orders to Block Access
Where an infringement is continuing and gives rise to a criminal offence involving a threat to the life or safety of persons, CnM or the CCPC may apply to the High Court for an order requiring the service provider to block access in Ireland to the service which is the source of a continuing infringement.
Administrative Fines and Daily Penalties
Under the DSB where a person obstructs or impedes an authorised officer of one of the competent authorities during the course of an investigation into a suspected infringement that person may be liable for an administrative fine.
The competent authorities may also impose a daily payment penalty of up to 5% of the person’s average daily income or turnover, in the preceding financial year, to enforce an obligation imposed by the exercise of their investigatory powers or to enforce a notice to end infringement.
Next Steps for Digital Service Providers
With the effective date for full implementation of the DSA fast approaching, digital service providers such as online platforms and marketplaces, web hosting service providers, eCommerce service providers, cloud computing service providers, and hosting service providers established or operating in the European Economic Area should familiarise themselves with their obligations under the DSA, and, where appropriate, should update their terms and conditions and/or put in place complaint handling policies and procedures in relation to user misuse to meet these obligations.