Communications Regulation (Amendment) Act 2007

6.

Insertion into Principal Act of new sections 13A to 13E.

6.— The Principal Act is amended by inserting the following sections after section 13:

“Purpose of sections 13B and 13C.

13A.— 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.

Power of Minister to obtain information from Commission.

13B.— 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.

Power of Minister to obtain information from undertaking.

13C.— (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.

Power of Commission to obtain information from undertaking.

13D.— (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.

Alternative procedure for enforcement of section 13C or 13D.

13E.— (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.”.