The Digital Services Bill 2023 (“DSB“) has been published and endorsed by Simon Coveney, the Minister for Enterprise, Trade and Employment and Dara Calleary the Minister for Trade Promotion, Digital and Company Regulation.
This is a crucial step towards fully implementing the EU Digital Services Act (“DSA“) in Ireland. The DSA establishes a regulatory framework designed to safeguard the rights of EU users of digital services while focusing on their fundamental online rights.
Minister Coveney conveyed his satisfaction with the publication of the DSB, emphasising its significance in addressing the risks posed by illegal and harmful online content and the dissemination of disinformation. He underscored the need for a comprehensive regulatory framework, positioning the DSB as an indispensable component within the broader EU-wide framework.
Minister Calleary spoke to the appointment of the Digital Services Commissioner in Coimisiún na Meán (“CNM“) earlier in the year and stressed the importance of the DSB in advancing the full implementation of the EU Regulation in Ireland from 17 February 2024.
The DSB implements the DSA and includes derogations in relation to investigation and enforcement. The DSB does not alter or amend the DSA which has direct legal effect in all Member States of the EU and does not require any implementing measures in national law.
- Competent Regulator(s): The DSB designates CNM as the Digital Services Coordinator and primary Competent Authority for the EU Regulation. Additionally, the Competition and Consumer Protection Commission (CCPC) is designated as a second Competent Authority, specifically tasked with overseeing online marketplaces under the DSA, more specifically, Articles 30, 31 and 32. These include the obligations placed on online platforms that allow traders to conclude distance contracts with consumers for traceability of traders, compliance by design and the right to information where a trader becomes aware that the product or service is illegal. The designation of the CCPC for monitoring these specific obligations was unexpected. CNM and the CCPC will have to work closely together when monitoring and investigating this subset of online platforms.
- Enforcement Measures: The DSB empowers both the CNM and CCPC to undertake investigations and issue compliance notices and orders to end infringement of the DSA. Notably, in respect of VLOPs and VLOSEs, the CCPC and CNM cannot investigate for an infringement of the DSA if the European Commission has initiated proceedings. Where there is an infringement that is being investigated by the CNM or CCPC, they must notify the European Commission, the European Board for Digital Services and each Member State Digital Services Coordinator. It further empowers the CCPC and CNM to issue interim measures to intermediary service providers where there is a contravention that is continuing and gives rise to a risk of serious harm occurring before a decision in relation to the suspected contravention can be made. CNM and/or the CCPC can require the intermediary service provider to take measures by a certain notified date.
- Daily Payment Penalties: The DSB empowers the CCPC and CNM to impose a penalty of a daily payment for the purpose of enforcing an obligation imposed on an intermediary service provider in the course of an investigation. Notice will be given by the regulator in writing, specifying the obligation in respect of which notice is given and all relevant information (e.g. the compliance date and the consequences of failing to comply being the daily payment penalty). If non-compliance continues, the matter may be referred to the European Commission. There is an appeal mechanism under the DSB for intermediary providers to appeal a daily payment penalty imposed on them.
- Access Blocking Orders: The DSB gives significant powers to CNM and the CCPC to apply to the High Court for an order to block access to the intermediary service in Ireland. This applies where the infringement is continuing and gives rise to a criminal offence involving a threat to the life or safety of persons. Having regard to the nature, gravity, recurrence and duration of the infringement, an order under the section must be proportionate and not unduly restrict access to lawful information by users of the service. Such an order can last for up to 28 days which can be extended for further 28-day periods on being granted the leave of the Court. This is also extended to app stores and the downloading of apps which meet the criteria on the app store.
- Vetted Researchers, Trusted Flaggers and Out of Court Dispute Settlement Bodies: The DSB sets out mechanisms for applying for Vetted Research, Trusted Flagger or Out of Court Dispute Settlement certification under the DSA including complaints mechanisms regarding those certified.
- Administrative Fines: The DSB empowers the CCPC and CNM to impose administrative fines and daily penalties up to the maximum limits as set out in the DSA as follows:
- fines of up to 6% of the worldwide annual turnover of intermediary service providers that have been found to have infringed the DSA;
- fines of up to 1% of the worldwide annual turnover or annual income of a provider that, during the course of an investigation into a suspected non-compliance of a provider with an obligation under the DSA, supplies incorrect, incomplete or misleading information, fails to comply or rectify incorrect, incomplete or misleading information or fails to submit to an inspection; and
- periodic penalties of up to 5% of the average daily worldwide turnover or income of a provider for failure to comply with an investigative order or notice to cease an infringement of the DSA.
Contributed by Hannah Garvey