Introduction

This guide provides a timeline and summary of important upcoming legislative changes for telecommunications and online businesses operating in and from Ireland. It is targeted at business and legal people that want a digestible summary to keep abreast of the latest developments in the telecommunications and digital sectors.

We see a number of common trends and challenges across all new laws in this guide:

Top 3 Trends

Strengthening of Regulatory Enforcement Powers

New laws will give regulators more powers to investigate and sanction, and in particular more powers to seek to impose sanctions at the civil standard of proof (balance of probabilities), rather than the higher criminal standard of proof (beyond reasonable doubt), which regulators must satisfy very often at present.

Growing Importance of General Consumer Protection Laws

New general consumer protection laws will strengthen consumer rights in a manner which will impact all consumer-facing businesses, and other new laws (eg, sector regulation and privacy) will import consumer protection law concepts. As a result, we will see regulators relying on consumer protection laws and concepts more often in future enforcement.

Beginning of an Unstoppable Tide – Regulation of Online Businesses

We will see a proliferation of laws which are specifically tailored to online businesses. Some of these laws will make online businesses subject to a pre-existing legal framework for the first time (eg, telecoms law) and others will be subject to new laws designed specifically to regulate online businesses.

Top 3 Challenges

Ireland as Focal Point

As a European hub for many of the world's largest online businesses, Ireland will be a focal point. In legal areas where enforcement is de-centralised to the national level (rather than concentrated in Brussels), regulators across the EU will look to Ireland for proof of effective enforcement. Companies based here will look to Irish regulators for guidance in interpreting new laws. This creates a need for significant additional resources for Irish regulators and the Irish private enforcement court system.

Compliance Challenges in Controlling Online Activity

New "regulated activities" in the online environment will be more difficult for companies to control and for regulators to police, in particular due to their volume and speed. As well as requiring additional resources as noted above, Irish regulators will require novel monitoring techniques and pragmatic and priority-driven regulatory enforcement.

High Number of Decision-Makers with Jurisdiction over Same Activities & Untested Powers

Within Ireland, a number of regulators will be policing the same activities, eg, the Data Protection Commission ("DPC"), the Commission for Communications Regulation ("ComReg"), the Media Commission, and the Competition and Consumer Protection Commission ("CCPC"). This overlap will require increased co-operation between regulators, including both updating of existing agreements between sectoral regulators and making new agreements (for example between the DPC and the CCPC), to ensure each regulator operates within their own remit and to minimise any friction.

In addition, the Irish courts may make decisions – in private and public enforcement litigation – on the compliance of newly regulated activities and on whether regulators' new powers are exercised in compliance with the relevant statute and wider general legal principles including fair process. Until regulators' new powers are tested by the Irish courts, there will be some legal uncertainty for companies.

Conclusion

We hope that this guide is useful to your business. If you have any questions on any matter covered in this guide, we would be very happy to discuss and contact details are included below.

Please note that companies should consider Irish lobbying law before engaging with a "Designated Public Official" in relation to any of the matters covered in this guide. Lobbying in Ireland is governed by the Regulation of Lobbying Act 2015 and the Freedom of Information Act 2014, both of which can generate obligations and result in the public disclosure of information.

1. European Electronic Communications Code

Summary: The Directive establishing a European Electronic Communications Code (the "EECC") is considered a cornerstone of the European Digital Market. The primary purpose of the EECC Directive is to establish a harmonised legal framework which introduces rules on: market regulation to encourage investment in high-speed networks, spectrum for mobile connectivity and 5G deployment, integration into the regulatory regime of OTT services, end-user protection, and numbering and emergency communication.

Status: The EECC Directive has not yet been transposed into Irish law. The transposition deadline was 21 December 2020. On 4 February 2021, the European Commission issued Ireland with a letter of formal notice for failure to meet the transposition deadline, which was followed by a 'reasoned opinion' issued by the European Commission on 23 September 2021. The legislation intended to transpose the EECC Directive includes the: Communications Regulation Bill 2022 (the "Communications Regulation Bill") and the European Union (Electronic Communications Code) Regulations 2022 (S.I. 444/2022) (the "Communications Regulations"). The Communications Regulation Bill, which was published on 25 September 2022, is currently at the third stage of review in Dáil Éireann, however the majority of the EECC Directive will be transposed by way of the Communications Regulations, which have yet to be commenced.

What it hopes to achieve: The EECC Directive aims to recast the regulatory framework for electronic communications in Europe and enhance end-user rights. It aims to further harmonise a single European telecommunications market, whilst laying a strong foundation for the EU digital economy. Under the EECC, Member States should encourage network operators and equipment manufacturers to improve access by end-users with disabilities to electronic communications services.

Who it impacts: The new definition of 'electronic communications services' in the EECC, includes OTT service providers (eg, interpersonal communication services such as instant messaging applications, internet phone calls and personal messaging provided via social media) and aims to create a more level playing field by extending some telecoms regulatory requirements to OTT services for the first time.

This in turn will provide further protection to end-users through the establishment of a Universal Service Obligation, creating a minimum set of services to be offered by all providers, ensuring increased protections for consumers.

Further reading:

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.