STATUTORY INSTRUMENTS.

S.I. No. 357 of 2000.

European Communities (Conditional Access) Regulations, 2000

Made by the

Minister for Public Enterprise

S.I. No. 357 of 2000

European Communities (Conditional Access) Regulations, 2000

I, Mary O'Rourke, T.D., Minister for Public Enterprise, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 ( No. 27 of 1972 ), and for the purpose of giving effect to Directive No. 98/84/EC of 20 November 1998 of the European Parliament and of the Council¹ , hereby make the following regulations:

1.         These Regulations may be cited as the European Communities (Conditional Access) Regulations, 2000.

2.         (1)        In these Regulations -

“associated service” means the installation, maintenance or replacement of conditional access devices, as well as the provision of commercial communication services in relation to them or to protected services;

“conditional access” means any technical measure or arrangement whereby access to the protected service in an intelligible form is made conditional upon prior individual authorisation;

“conditional access device” means any equipment or software designed or adapted to give access to a protected service in an intelligible form;

“Directive” means Directive No. 98/84/EC of 20 November 1998 of the European Parliament of the Council¹ ;

“Director” means Director of Telecommunications Regulation;

“illicit device” means any equipment or software designed or adapted to give access to a protected service in an intelligible form without the authorisation of the protected service provider concerned;

“infringing activity” means a contravention of Regulation 3(1);

“protected service” means any of the following services, where provided against remuneration and on the basis of conditional access -

(a)      television broadcasting, meaning the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public and includes the communication of programmes between undertakings with a view to their being relayed to the public, but does not include communication services providing items of information or other messages on individual demand such as telecopying, electronic data banks and other similar services,

(b)      radio broadcasting, meaning any transmission by wire or over the air, including by satellite, of radio programmes intended for reception by the public,

(c)      information society services, meaning any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services,

or the provision of conditional access to any of the above services considered as a service in its own right.

(2)       A word or expression that is used in these Regulations and is also used in the Directive shall, unless the contrary intention appears, have the same meaning in these Regulations that it has in the Directive.

(3)       A reference in these Regulations -

(a)      to a Regulation is to a Regulation of these Regulations, unless it is indicated that reference to some other Regulations is intended, and

(b)      to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

3.       (1)        A person who -

(a)      for commercial purposes -

(i)        manufactures, imports, distributes, sells, rents or possesses, or

(ii)       installs, maintains or replaces,

illicit devices, or

(b)      uses commercial communications (including all forms of advertising, direct marketing, sponsorship, sales promotion and public relations) to promote illicit devices,

is guilty of an offence.

(2)      Where an offence under this Regulation is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been attributable to any wilful neglect on the part of any person, being a director, manager, secretary or any 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 shall be liable to be proceeded against and punished as if he or she were guilty or the first-mentioned offence.

4.       (1)      Where a person is convicted of an offence under Regulation 3, the court may order the forfeiture to the Director of any illicit device connected with the infringing activity the subject of the conviction.

(2)      Where an order is made under this Regulation, an authorised officer may for the purpose of giving effect to it seize and detain the illicit device where it has not already been seized under Regulation 5(3)(f).

(3)      The Director shall dispose of any illicit device forfeited under this Regulation outside commercial channels as he or she sees fit.

(4)      A person who obstructs or interferes with an authorised officer in the seizure or detention of an illicit device under paragraph (2) is guilty of an offence.

5.       (1)      The Director may appoint such and so many persons as he or she thinks fit to be authorised officers for the purpose of these Regulations.

(2)      An authorised officer shall be furnished with a warrant of the officer's appointment and, when exercising a power conferred on him or her under these Regulations shall, if requested by any person affected, produce the warrant to that person for inspection.

(3)      An authorised officer may for the purpose of ensuring that these Regulations are being complied with -

(a)      at all reasonable times, enter any premises or a place where he or she has reason to believe an infringing activity is taking or has taken place,

(b)      require any person in charge of the premises or place or connected with any equipment the officer suspects of being an illicit device to produce to him or her any books, documents or records (and in the case of such information in a non-legible form to reproduce it in permanent legible form) relating to the suspected infringing activity and to give to him or her such information as he or she may reasonably require in relation to the activity,

(c)      inspect or take extracts from 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 permanent legible form),

(d)      make such inspections or tests of any equipment the officer suspects of being an illicit device and other equipment connected with the suspected infringing activity on the premises or at the place as the officer considers appropriate,

(e)      examine any procedure connected with the manufacture, installation or maintenance of the device or equipment,

(f)       seize and detain any equipment the officer suspects of being an illicit device for such period as may be reasonable for further documentation or until the conclusion of any legal proceedings,

(g)      secure for later inspection the premises or place or part thereof.

(4)      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 from the District Court under paragraph (7) authorising such entry.

(5)      An authorised officer, where he or she considers it necessary, may be accompanied by other persons to assist the officer in the exercise of his or her powers under this Regulation.

(6)      An authorised officer, where he or she considers it necessary, may be accompanied by a member or members of the Garda Síochána when performing any powers conferred on an authorised officer by these Regulations which involves the breaking open of any premises or any other action in which the use of force may be necessary and is lawful.

(7)      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 an infringing activity is taking place or has taken place in any premises or at any part thereof, the judge may issue a warrant authorising an authorised officer, accompanied, if appropriate, by other authorised officers or persons to assist the officer or by a member 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 requested, of the warrant, to enter those premises or part thereof, if need be by reasonable force, and exercise all or any of the powers conferred on an authorised officer under this Regulation.

(8)      An application under paragraph (7) shall be made to the judge of the District Court in whose district court area the premises is situated.

(9)      A person who, without reasonable excuse, fails to comply with any request or requirement made by an authorised officer under this Regulation is guilty of an offence.

(10)     A person who obstructs or interferes with an authorised officer in the exercise of his or her powers under this Regulation or gives an authorised officer information which is false or misleading is guilty of an offence.

6.        (1)        A person guilty of an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, or to both.

(2)      An offence under these Regulations may be prosecuted by the Director.

7.        (1)       The provider of a protected service whose interests are affected by a person engaging in or who has engaged in an infringing activity may do either or both of the following -

(a)      bring an action for damages in a court of competent jurisdiction, or

(b)      obtain, in the High Court, an injunction restraining a person from engaging in the infringing activity.

(2)      In an action for damages under paragraph (1)(a) the court may award such damages as, having regard to all the circumstances of the case, it considers just.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Regulations give effect to the European Parliament and Council Directive 98/84/EC on the legal protection of services based on, or consisting of, Conditional Access.

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¹ O.J. No. L320 of 28.11.1998, p.54

¹ O.J. No. L320 of 28.11.1998, p.54