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.
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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.