The scheme of the Bill will give effect to those elements of the EU regulation known as the Digital Services Act that require national implementing measures, so it needs to be read in tandem with that Act. Those requirements are mainly to fulfil obligations on member states to designate and empower at least one competent authority. The provisions of the EU regulation that impose obligations on the providers of online intermediary services will have direct effect here, so do not require any further national measures. The scheme does not adapt or add to these obligations. More information on those obligations has been provided by the Department in a briefing note. If there is anything more that members need, we will happily get it for them.
Accordingly, the majority of the scheme is concerned with the regulatory framework that will implement and enforce the Digital Services Act in Ireland. First, it provides for the designation of the main competent authority. The Digital Services Act obliges each member state to designate one competent authority as the main authority for implementation and enforcement of the DSA in that state. The DSA refers to this main authority as the digital services co-ordinator and requires that it be designated and empowered by 17 February 2024 at the latest. The Government has decided to designate Coimisiún na Meán, the Media Commission, as Ireland’s digital services co-ordinator, and the general scheme gives effect to that decision.
It also assigns the necessary powers to the digital services co-ordinator. The Digital Services Act provides that the digital services co-ordinator must be able to impose fines, either directly or through the courts, of up to 6% of annual worldwide turnover where there has been a breach of the EU regulation. There are also a range of investigative and other enforcement powers to which the scheme gives effect. Again, these are all requirements in the DSA. Given the cross-border nature of online intermediary services, the Act establishes a network of each of the 27 digital services co-ordinators around Europe and the European Commission, which will also have a role in the implementation of the new rules. To support the effectiveness of this network, the DSA provides for mutual assistance, joint investigation and other forms of co-operation between all the bodies. The scheme includes provisions, then, that are intended to enable Coimisiún na Meán to participate in those arrangements.
Third, it provides for the conduct of its functions. As digital services co-ordinator, DSC, an coimisiún will be responsible for some administrative tasks, such as awarding the status of trusted flagger, certifying out-of-court dispute settlement bodies and vetting researchers for access to data. The scheme again provides that the conduct of those tasks should follow procedures, and those procedures are inspired by the requirements in the Digital Services Act.
There are powers for the comisiún to co-operate with other regulators within Ireland. As things stand, there are a few regulators concerned with combating illegal content online. For example, market surveillance bodies such as the Irish Health Products Regulatory Authority and the Competition and Consumer Protection Commission, CCPC, can require the removal of illegal goods from sale online. As co-ordinator, an coimisiún will have an active role in engaging with those other Irish regulators, co-ordinating activities and circulating information on cases across the EU that have been taken here. The general scheme enables an coimisiún in this regard, for example, with provisions on exchange of information and co-operation.
There are provisions on take-down and other orders, orders to require additional information from providers. The DSA introduces new requirements for the content of orders, so there are some specific items that need to be specified in the orders. It also brings in obligations on any provider in receipt of such an order to respond with information as to how it has dealt with that order. The scheme, therefore, includes heads to ensure that those orders, whether issued by the courts or an authority such as the CCPC, follow these requirements and that the follow-up information from the providers is sent to Coimisiún na Meán in order that it can meet its own obligations to inform the other 26 DSCs and the European Commission.
We mentioned that this builds on the liability regime in the e-commerce directive. As well as the supervisory and enforcement framework, the general scheme revokes national laws that transposed the liability provisions that were introduced in 2000 by the e-commerce directive. This is because those provisions are now redundant. They have been amended and replaced by the Digital Services Act, which has direct effect, so they are outdated. The 2000 regime has been adapted in order that providers are free to survey content on their services, to identify illegal content, without running the risk of losing their protections from liability. This is intended to make it more likely, as I said previously, that illegal content will be found and taken down.
On the Minister's request for a waiver, this is due mainly to the urgency of the legislation, which must be enacted by early February 2024 at the latest, when Ireland is legally obliged to have designated a regulator to enforce the EU regulation. Many of the largest online providers of platforms and search engines have their EU headquarters in Ireland. Although the European Commission will have a leading role in enforcement and implementation of the Digital Services Act vis-à-vis those large providers, it will be the Irish DSC that will be responsible for much of the day-to-day supervision of those providers and will be called on to support the European Commission in its own casework. Ireland’s regulator will have a pre-eminent role in the network overseeing the delivery of these new landmark rules, and if we are not ready it will become very obvious almost immediately. The commission needs time to prepare for that role. Recruitment is under way in order that new staff can start in an coimisiún over this summer and into the autumn, well ahead of next February. As well as people, of course, an coimisiún will need clarity about its legislative powers, functions and obligations to ensure that staff are trained and ready. Therefore, enactment of the scheme at the earliest opportunity is important as it will allow an coimisiún to fully prepare in advance of February 2024.
