37. The Principal Act is amended by the insertion of the following sections after section 139ZZB:

“Daily payment for failure to comply with notice to end contravention

139ZZBA. (1) Where the Commission gives a notice under section 139ZZB to an intermediary service provider in respect of a contravention that is an infringement of the Digital Services Regulation, the Commission may, for the purpose of enforcing the notice, impose a penalty of a daily payment (in this section referred to as a ‘daily payment penalty’) on the provider.

(2) Before the Commission makes a decision to impose a daily payment penalty on a provider, the Commission shall give the provider a notice in writing which—

(a) states that if the provider fails to take the steps stated under section 139ZZB(2)(a) by a date specified in the notice under this subsection, the Commission intends to impose a daily payment penalty on the provider for each day during which the failure continues, beginning with the day following that date,

(b) states why it appears to the Commission to be necessary to impose the penalty,

(c) states the maximum daily amount of the penalty that the Commission may impose, and

(d) invites the provider to make written submissions to the Commission, regarding the matters to which the notice relates within the period specified in the notice or such further period as the Commission may allow.

(3) The date specified under subsection (2)(a)—

(a) may not be earlier than the end of the period specified under section 139ZZB(2)(b), and

(b) may not be earlier than the date on which the notice under subsection (2) is given.

(4) The amount of a penalty imposed under this section shall not exceed, for each day during which the failure referred to in subsection (2)(a) continues, 5 per cent of the provider’s average daily turnover in the preceding financial year.

(5) Where the intermediary service provider fails to take the steps stated under section 139ZZB(2)(a) by the date specified in the notice under subsection (2), the Commission, after considering any written submissions made by the provider within the period referred to in subsection (2)(d), may—

(a) determine the daily amount of the penalty to be imposed, and the date on which it is to commence, and

(b) by notice in writing to the provider, impose the penalty.

(6) A decision of the Commission to impose a daily payment penalty under this section does not take effect unless it is confirmed on appeal under section 139ZX or on summary application under section 139ZY, as those sections apply in accordance with section 139ZZBB.

Daily payment penalty under section 139ZZBA: appeal and confirmation

139ZZBB. (1) The provider to whom a notice under section 139ZZBA(5) is given may, within 28 days from the date on which the notice is received, appeal to the High Court against the decision to impose the daily payment penalty.

(2) Subsections (3) to (7) and (9) of section 139ZX apply for the purposes of an appeal by a provider under this section, as they apply for the purposes of an appeal by the inquiry subject under subsection (1) of that section, subject to the following and any other necessary modifications:

(a) references to an administrative financial sanction are references to a daily payment penalty under section 139ZZBA;

(b) references to the appropriate court are references to the High Court.

(3) Where the provider to whom a notice under section 139ZZBA(5) is given does not appeal in accordance with subsection (1) against the decision to impose a daily payment penalty, the Commission shall, as soon as is practicable after the expiration of the period referred to in subsection (1), and on notice to the provider, make an application in a summary manner to the Circuit Court for confirmation of the decision.

(4) Section 139ZY(2) to (8) apply for the purposes of an application under subsection (3) subject to the following and any other necessary modifications:

(a) references to an appeal under section 139ZX(1) are references to an appeal under subsection (1) of this section;

(b) references to section 139ZY(1) were references to subsection (3) of this section.”.