PART 3

Enforcement

39. —(1) The Commission may appoint persons to be authorised officers for the purposes of this Act.

(2) A person appointed under subsection (1) shall, on his or her appointment, be furnished by the Commission with a certificate of his or her appointment and when exercising a power conferred by subsection (3) shall, if requested by any person thereby affected, produce such certificate to that person for inspection.

(3) For the purposes of the exercise by the Commission of its functions under this Act, a transferred function or any regulations made under the Act of 1972, an authorised officer may—

(a) enter, at any reasonable time, any premises or place or any vehicle or vessel where any activity connected with the provision of electronic communications services, networks or associated facilities or postal services takes place or, in the opinion of the officer takes place, and search and inspect the premises, place, vehicle or vessel and any books, documents or records found therein,

(b) require any such person to produce to him or her any books, documents or records relating to the provision of electronic communications services, networks or associated facilities or postal services which are in the person's power or control and, in the case of information in a non-legible form to reproduce it in a legible form, and to give to the officer such information as he or she may reasonably require in relation to any entries in such books, documents or records,

(c) secure for later inspection any such premises, place, vehicle or vessel or part thereof in which books, documents or records relating to the provision of electronic communications services, networks or associated facilities or postal services are kept or there are reasonable grounds for believing that such books, documents or records are kept,

(d) inspect and take extracts from or make copies of any such books, documents or records (including, in the case of information in a non-legible form, a copy of or extract from such information in a permanent legible form),

(e) remove and retain such books, documents or records for such period as may be reasonable for further examination,

(f) require the person to maintain such books, documents or records for such period of time, as may be reasonable, as the authorised officer directs,

(g) require the person to give to the officer any information which he or she may reasonably require with regard to the provision of electronic communications services, networks or associated facilities or postal services,

(h) make such inspections, tests and measurements of machinery, apparatus, appliances and other equipment on the premises or vessel or at the place or in the vehicle as he or she considers appropriate,

(i) require any person on the premises or vessel or at the place or in the vehicle having charge of, or otherwise concerned with the operation of, any machinery, apparatus, appliance or other equipment (including data equipment) or any associated apparatus or material, to afford the officer all reasonable assistance in relation thereto,

(j) take photographs or make any record or visual recording of any activity on such premises or vessel, at such place or in such vehicle.

(4) Where an authorised officer in exercise of his or her powers under this section is prevented from entering any premises or place, an application may be made under section 40 for a warrant to authorise such entry.

(5) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant under section 40 authorising such entry.

(6) A person to whom this section applies who—

(a) obstructs, impedes or assaults an authorised officer in the exercise of a power under this section,

(b) fails or refuses to comply with a requirement under this section,

(c) alters, suppresses or destroys any books, documents or records which the person concerned has been required to produce, or may reasonably expect to be required to produce,

(d) gives to the Commission or to an authorised officer information which is false or misleading in a material respect, or

(e) falsely represents himself or herself to be an authorised officer,

is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000.

(7) An authorised officer appointed under section 12 of the Act of 1996 and holding office immediately before the establishment day continues in office as if appointed under this section.

40. —If a judge of the District Court is satisfied on the sworn information of an authorised officer that there are reasonable grounds for suspecting that information required by an authorised officer for the purpose of the Commission exercising its functions under this Act, a transferred function or regulations made under the Act of 1972 is held at any premises or place or on any vessel or in any vehicle, the judge may issue a warrant authorising the authorised officer, accompanied if the officer considers it necessary by other authorised officers or members of the Garda Síochána, at any time or times, within one month from the date of issue of the warrant, on production, if so required, of the warrant, to enter, if need be by reasonable force, the premises, place, vessel or vehicle and exercise all or any of the powers conferred on an authorised officer under section 39 .

41. —Where the Commission is satisfied that any member of the staff of the Commission or an authorised officer has discharged his or her duties in pursuance of the functions of the Commission in a bona fide manner, the Commission shall indemnify such member of staff or authorised officer, against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.

42. —Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

43. —A summary offence under this Act (other than section 53 (2)) may be prosecuted by the Commission.

44. —(1) Where the Commission has reasonable grounds for believing that a person has committed an offence under—

(a) any Regulations mentioned in Part 2 of Schedule 1, or

(b) any other regulation made under the Act of 1972 which is declared in a regulation under that Act to be an offence to which this section applies,

the Commission may give to the person or, where the person believed to have committed the offence is a company, to an officer of the company, a notice in the prescribed form stating that—

(i) the person or company is alleged to have committed that offence,

(ii) the person to whom the notice is delivered may during a period of 21 days beginning on the date of the notice—

(I) remedy as far as practicable to the satisfaction of the Commission any default that constitutes the offence, and

(II) make to the Commission a payment of €1,000 accompanied by the notice, and

(iii) a prosecution of the person to whom the notice is delivered in respect of the alleged offence will not be instituted during the period specified in the notice and, if the default is remedied to the satisfaction of the Commission and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) Where a notice is given under subsection (1)—

(a) a person to whom it applies may, during the period specified in the notice, make to the Commission the payment specified in the notice, accompanied by the notice,

(b) the Commission may receive the payment and issue a receipt for it, and any payment so received shall not be recoverable in any circumstances by the person who made it, and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and, if the default is remedied to the satisfaction of the Commission and the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In a prosecution for an offence to which this section applies, the onus of showing that a payment pursuant to a notice under this section has been made shall lie on the defendant.

(4) All payments made to the Commission in pursuance of this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(5) The Minister may by regulations vary the amount standing specified for the time being in subsection (1)(ii)(II).

(6) Section 60 (other than subsection (1)(e)) applies to a notice given under this section.

(7) In this section “company” means a company within the meaning of the Companies Acts, 1963 to 2001.

45. —Section 111(11) (inserted by S.I. No. 96 of 1998) of the Postal and Telecommunications Services Act, 1983, is amended by substituting for paragraph (a) the following paragraph:

“(a)  A person guilty of an offence under subsection (2)(c) or (i), (3)(c) or (f), (4)(d) or (7)(d) is liable—

(i) on summary conviction, to a fine not exceeding €3,000, or

(ii) on conviction on indictment, to a fine not exceeding whichever of the following amounts is the greater, namely, €4,000,000 or 10 per cent of the turnover of the person in the financial year ending in the 12 months prior to the conviction.”.

46. —Section 13 of the Act of 1996 is amended, on the establishment day, by substituting for subsection (1) and (2) the following:

“(1)  A person who fails to comply with—

(a) an order under section 7(2), or

(b) a request under section 7(4),

is guilty of an offence.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine not exceeding €3,000, or

(b) on conviction on indictment, to a fine not exceeding €1,000,000.”.