STATUTORY INSTRUMENTS

S.I. No. 192 of 2002

European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002

Made by

the Minister for Public Enterprise

PART 1

PRELIMINARY AND GENERAL

PART 2

TRAFFIC DATA AND BILLING DATA

PART 3

CALLING LINE IDENTIFICATION AND CONNECTED LINE IDENTIFICATION

PART 4

DIRECTORIES OF SUBSCRIBERS

PART 5

USE OF TELECOMMUNICATIONS SERVICES FOR PURPOSE OF DIRECT MARKETING

PART 6

ENFORCEMENT

PART 7

MISCELLANEOUS

I, Mary O'Rourke, 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 97/66/EC of the European Parliament and of the Council of 15 December 1997 ¹ concerning the processing of personal data and the protection of privacy in the telecommunications sector and for the purpose of giving further effect to Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 ² on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, make the following regulations:

PART 1

PRELIMINARY AND GENERAL

Citation.

1.         These Regulations may be cited as the European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002.

Interpretation and application of Regulations.

2.         (1)        In these Regulations, unless the context otherwise requires -

“Act of 1988” means Data Protection Act 1988 ( No. 25 of 1988 );

“automated data” means information that -

(a)        is being processed by means of equipment operating automatically in response to instructions given for that purpose, or

(b)        is recorded with the intention that it should be processed by means of such equipment;

“automatic calling machine” means an automatic calling machine which, when activated, operates to make calls without human intervention;

“blocking”, in relation to data, means so marking the data that it is not possible to process it for purposes in relation to which it is marked;

“Commissioner” means Data Protection Commissioner;

“data” means automated data and manual data;

“data controller” means a person who, either alone or with others, controls the contents and use of personal data;

“Directive” means Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector;

“Director” means Director of Telecommunications Regulation;

“directory” means a directory of subscribers in printed or electronic form -

(a)        that is available to members of the public, or

(b)        information from which is available to members of the public by way of a directory enquiry service;

“the EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993;

“enactment” means a statute or an instrument made under a power conferred by statute;

“European Economic Area” has the meaning assigned to it by the EEA Agreement;

“manual data” means information that is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system;

“National Directory Database” means the record of subscribers kept by the operator under Regulation 10(2)(b) of the Regulations of 1999;

“the operator” means the person designated by the Director under Regulation 3 of the Regulations of 1999 to provide a universal service (within the meaning of those Regulations) in respect of the directory services referred to in Regulation 10(2) of those Regulations;

“personal data” means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller;

“processing”, of or in relation to information or data, means performing any operation or set of operations on the information or data, whether or not by automatic means, including -

(a)        obtaining, recording or keeping the information or data,

(b)        collecting, organising, storing, altering or adapting the information or data,

(c)        retrieving, consulting or using the information or data,

(d)        disclosing the information or data by transmitting, disseminating or otherwise making it available, or

(e)        aligning, combining, blocking, erasing or destroying the information or data,

and cognate words shall be construed accordingly;

“public telecommunications network” means a transmission system and, where applicable, any switching equipment and other resources which permit the conveyance of signals between defined termination points by wire, by radio, by optical or by other electromagnetic means, which are used, in whole or in part, for the provision of publicly available telecommunications services;

“publishes”, in relation to a directory, includes makes available, and cognate words shall be construed accordingly;

“Regulations of 1999” means European Communities (Voice Telephony and Universal Service) Regulations 1999 ( S.I. No. 71 of 1999 );

“relevant filing system” means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible;

“relevant telecommunications services provider” means -

(a)        in relation to a user, the telecommunications services provider of the telecommunications services used by the user, and

(b)        in relation to a subscriber, the telecommunications services provider of telecommunications services to the subscriber;

“subscriber” means a person who has contracted with a telecommunications services provider for the supply by the provider to the person of telecommunications services;

“telecommunications network provider” means a person who provides a public telecommunications network;

“telecommunications services” means services, other than radio and television broadcasting, whose provision consists, in whole or in part, of the transmission and routing of signals on telecommunications networks;

“telecommunications services provider” means a person who provides publicly available telecommunications services;

“termination points” means all physical connections and their technical access specifications which form part of any public telecommunications network and are necessary for access to, and efficient communication through, that network and which are individually identified by numbers allocated from the scheme administered by the Director which sets out the sequence of numbers or other characters which are used to route telephony traffic to specific locations;

“unlisted”, in relation to a subscriber, means that the subscriber has indicated to the operator that he, she or it does not wish to have particulars relating to him, her or it included in subscriber directories within the meaning of Regulation 10 of the Regulations of 1999 made available by the operator under paragraph (2)(a) of that Regulation in respect of a particular line;

“unsolicited call” means a call by means of an automatic calling machine, a facsimile machine or telephone that is not requested by the called party;

“user” means an individual who, for private or business purposes, uses a publicly available telecommunications service, whether or not the individual is a subscriber in respect of the service.

(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 in these Regulations the same meaning as it has in the Directive.

(3)        In these Regulations, unless the context otherwise requires -

(a)        a reference to a Regulation is a reference to a Regulation of these Regulations,

(b)        a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs,

(c)        a reference to an Article or an Annex is a reference to an Article of, or the Annex to, the Directive, and

(d)        a reference to any enactment shall be construed as a reference to that enactment as amended or extended by or under any subsequent enactment (including these Regulations).

(4)        In any case in which signals are conveyed to or from telecommunications equipment, wholly or partly otherwise than by a line, any reference in these Regulations to a line shall be construed as including a reference to what, in that case, functionally corresponds to a line and “connected,” in relation to a line, shall be construed accordingly.

(5)        References in these Regulations to calls by means of telephone shall be construed as references to telephone calls in fixed public telephone networks or public mobile telephone networks.

(6)        References in these Regulations to personal data shall, in relation to a subscriber other than an individual, be construed as references to such data as would constitute personal data if the subscriber were an individual.

(7)        (a)        These Regulations apply to a telecommunications network provider, a telecommunications services provider or a person who publishes a directory in respect of the processing of personal data only if -

(i)         the provider or person is established in the State and the data are processed in the context of that establishment, or

(ii)        the provider or person is established neither in the State nor in any other state that is a contracting party to the EEA Agreement but makes use of equipment in the State for processing the data otherwise than for the purpose of transit through the territory of the State.

(b)        For the purposes of subparagraph (a), each of the following shall be treated as established in the State:

(i)         an individual who is normally resident in the State,

(ii)        a body incorporated under the law of the State,

(iii)       a partnership or other unincorporated association formed under the law of the State, and

(iv)       a person who does not fall within subparagraph (i), (ii) or (iii) but maintains in the State -

(I)        an office, branch or agency through which the person carries on any activity, or

(II)       a regular practice,

and the reference to establishment in any other state that is a contracting party to the EEA Agreement shall be construed accordingly.

(c)        A telecommunications network provider, a telecommunications services provider or a person who publishes a directory to whom subparagraph (a)(ii) applies must, without prejudice to any legal proceedings that could be commenced against the provider or person, designate a representative established in the State.

Services to which Regulations apply.

3.         (1)        Paragraph 1 of Article 3 shall apply to these Regulations, and the reference in that paragraph to the Directive shall be construed as a reference to these Regulations.

(2)        Paragraph 2 of Article 3 shall apply to Regulations 5, 6, 7 and 18, and the reference in that paragraph to Articles 8, 9 and 10 shall be construed as a reference to Regulations 5 and 6, Regulation 7 and Regulation 18 respectively.

(3)        The Director shall comply with paragraph 3 of Article 3, and the reference in that paragraph to Member States shall be construed as a reference to the Director.

PART 2

TRAFFIC DATA AND BILLING DATA

Processing of traffic data and billing data.

4.         (1)        A telecommunications network provider or a telecommunications services provider shall, subject to paragraph (2), comply with paragraphs 1, 2 and 4 of Article 6, and a telecommunications services provider shall, subject to paragraph (3), comply with paragraph 3 of that Article, in respect of the processing of any traffic data and billing data relating to the subscribers and users of the telecommunications services concerned.

(2)        (a)        A telecommunications network provider or a telecommunications services provider may process data in accordance with paragraph 2 of Article 6 until the expiry of the period during which legal proceedings may be brought for payments due, or alleged to be due, in respect of the telecommunications services concerned or, where such proceedings are brought during that period, until those proceedings are finally determined.

(b)        Legal proceedings shall be deemed, for the purposes of this paragraph, to be finally determined -

(i)         if no appeal is brought within the ordinary time for an appeal by either party to the proceedings, upon the expiry of that time,

(ii)        if an appeal is brought within that time or such extended time as the court to which the appeal is brought may allow, upon the date of the determination of the appeal or any further appeal therefrom or the ordinary time for instituting any further appeal has expired or such other date as may be determined by the court hearing any such appeal, whichever is the latest, or

(iii)       if an appeal has been brought and is withdrawn, upon the date of the withdrawal of the appeal.

(3)        (a)        A relevant telecommunications services provider shall inform a subscriber of processing already under way on the making of these Regulations under paragraph 3 of Article 6 of any data relating to the subscriber.

(b)        If the subscriber concerned does not object to such processing within a period of 2 months of being informed thereof, the subscriber shall be deemed to have consented to such processing.

(4)        Nothing in this Regulation shall preclude a court or other body involved in the settlement of disputes (whether by way of legal proceedings or otherwise) pursuant to any enactment from being informed of traffic data or billing data or both for the purpose of settling such disputes, in particular, disputes relating to billing or interconnection.

(5)        In this Regulation -

“billing data” means the data specified in the Annex that is held by a telecommunications network provider or a telecommunications services provider for the purpose of -

(a)        billing a subscriber, or

(b)        making or paying interconnection charges or both;

“interconnection” has the meaning assigned to it by the European Communities (Interconnection in Telecommunications) Regulations 1998 ( S.I. No. 15 of 1998 );

“traffic data” means any data relating to the conveyance of calls on a telecommunications network and the billing of such calls and includes data relating to the routing, duration or time of such calls, the location of the terminal equipment of persons making or receiving such calls, the telecommunications network on which such calls originate or terminate and the time of the beginning or end, or the duration, of the connection to that telecommunications network.

PART 3

CALLING LINE IDENTIFICATION AND CONNECTED LINE IDENTIFICATION

Calling line identification and connected line identification.

5.         (1)        A relevant telecommunications services provider shall comply with paragraphs 1 to 4 of Article 8 in respect of the provision of calling line identification and connected line identification facilities to subscribers and users of the telecommunications services provided by the provider, and the provisions of paragraph 5 of that Article shall apply accordingly.

(2)        Where a subscriber has more than one line, paragraphs 1 to 4 of Article 8 shall have effect separately as respects each such line.

Information to members of public.

6.         (1)        A telecommunications services provider who provides calling line identification and connected line identification facilities shall inform members of the public that he, she or it provides such facilities and of the provisions of paragraphs 1 to 4 of Article 8 in relation to such facilities by publishing a notice stating how that information may be obtained.

(2)        A telecommunications services provider to whom paragraph (1) applies shall display the information referred to in that paragraph in any of his, her or its offices that are normally accessed by members of the public for the purpose of transacting business with the provider and on any appropriate website maintained by the provider.

(3)        A telecommunications services provider to whom paragraph (1) applies shall, insofar as reasonably practicable, on request from a person with a disability inform him or her in a form accessible to him or her of the matters referred to in that paragraph.

(4)        A telecommunications services provider to whom paragraph (1) applies shall notify the Director of the manner in which information is or was made available under this Regulation.

Exceptions to elimination of presentation of calling line identification.

7.         A telecommunications network provider or a telecommunications services provider shall, within a period of not more than 3 months after the making of these Regulations, cause to be prepared, and shall make available to any person who so requests, a general description of the circumstances in which the provider may override the elimination by a subscriber or a user of the presentation of calling line identification in respect of a line -

(a)        on a temporary basis for the purpose of an investigation by a member of the Garda Síochána of a suspected offence under section 13 of the Post Office (Amendment) Act 1951 ( No. 17 of 1951 ) (which refers to telecommunications messages of an obscene, menacing or similar character) on the complaint of a person claiming to have received such a message,

(b)        used to make calls with either the national emergency call number 999 or the single European emergency call number 112 to bodies dealing with such calls for the purpose of answering them.

PART 4

DIRECTORIES OF SUBSCRIBERS

Directories of subscribers.

8.         (1)        A person who publishes a directory shall ensure that personal data in the directory relating to a subscriber who is an individual is limited to what is necessary to identify the subscriber and the number allocated to him or her in respect of a particular line, unless the subscriber has given his or her explicit consent to the person authorising the publication in the directory of additional personal data relating to the subscriber.

(2)        A subscriber, whether an individual or otherwise, may request the relevant telecommunications services provider to exclude any particulars in relation to the subscriber from the directory or to have particulars of the address of the subscriber partially excluded from the directory or both.

(3)        A subscriber who is an individual may request the relevant telecommunications services provider not to have a reference in the directory that reveals the sex of the subscriber.

(4)        A subscriber, whether an individual or otherwise, may request the relevant telecommunications services provider not to -

(a)        use, or

(b)        assist in the use by any other person of,

or both, any personal data relating to the subscriber contained in a database upon which a directory is based for the purpose of direct marketing.

(5)        A subscriber may request the relevant telecommunications services provider to disregard or reverse the effect of a request previously made by the subscriber to the provider under paragraph (2), (3) or (4).

(6)        (a)        A relevant telecommunications services provider, other than the operator or other person who publishes a directory, shall, as soon as practicable after the receipt of a request under paragraph (2), (3), (4) or (5), transmit particulars of the request to the operator or other person who publishes a directory to whom the provider supplies data relating to its subscribers for inclusion in a directory.

(b)        When the operator or other person who publishes a directory receives particulars of a request under subparagraph (a), the request shall be deemed, for the purposes of this Regulation, to have been made to the operator or that other person at the time the operator or that other person receives particulars of it.

(7)        The operator or other person who publishes a directory shall comply with any request made, or deemed to have been made, to the operator or that other person under paragraph (2), (3) or (5).

(8)        A relevant telecommunications services provider, or the operator or other person who publishes a directory, shall not require payment from a subscriber in respect of the compliance by the provider, the operator or that other person, as the case may be, with a request made by the subscriber under paragraph (2), (3), (4) or (5).

(9)        A request under paragraph (4) or (5) in so far as it relates to a previous request under paragraph (4) shall be in writing in a form determined, with the approval of the Director, by the operator or other person who publishes the directory concerned.

(10)      This Regulation shall not apply to an edition of a directory that has been published before the commencement of these Regulations.

PART 5

USE OF TELECOMMUNICATIONS SERVICES FOR PURPOSE OF DIRECT MARKETING

Unsolicited calls.

9.         (1)        A person shall not use, or cause to be used, any publicly available telecommunications services to make an unsolicited call for the purpose of direct marketing by means of an automatic calling machine or a facsimile machine to the line of a subscriber, who is an individual, unless the person has been notified by the subscriber that for the time being he or she consents to the receipt of such a call on his or her line.

(2)        A person shall not use, or cause to be used, any publicly available telecommunications services to make an unsolicited call for the purpose of direct marketing by means of an automatic calling machine or a facsimile machine to the line of a subscriber, being a person other than an individual, where -

(a)        the subscriber has notified the person that the subscriber does not consent to the receipt of such a call on the line, or

(b)        subject to paragraph (4), the particulars referred to in Regulation 10(2) are recorded in respect of the line in the National Directory Database.

(3)        A person shall not use, or cause to be used, any publicly available telecommunications services to make an unsolicited telephone call for the purpose of direct marketing to the line of a subscriber, who is an individual or a person other than an individual, where -

(a)        the subscriber has notified the person that the subscriber does not consent to the receipt of such a call on his, her or its line, or

(b)      subject to paragraph (4), the particulars referred to in Regulation 10(2) are recorded in respect of the line in the National Directory Database.

(4)        A person shall not contravene paragraph (2)(b) or (3)(b) if the unsolicited call concerned is made during the period of 28 days after a request under Regulation 8(4) is received and recorded in the National Directory Database by the operator in relation to the subscriber concerned in respect of the line on which the call is made.

(5)        A person who uses, or causes to be used, any publicly available telecommunications services to make an unsolicited call for the purpose of direct marketing shall include in such a call the name of the person and, in addition, in the case of a call by means of an automatic calling machine or a facsimile machine or if a person who receives the call so requests, either the address of the first-mentioned person or a telephone number for a line on which that person may be contacted.

National Directory Database.

10.       (1)        The operator shall, for the purposes of paragraphs (2)(b) and (3)(b) of Regulation 9, record or cause to be recorded in the National Directory Database the particulars specified in paragraph (2) in respect of a line of a subscriber who -

(a)        is, upon the making of these Regulations, an unlisted subscriber in respect of the line,

(b)        had at any time after the establishment of that Database, made a request to the operator or the relevant telecommunications services provider who passed the request onto the operator on behalf of the subscriber similar to that which may be made under Regulation 8(4)(b), or

(c)        makes, or is deemed to have made, a request to the operator under Regulation 8(4)(b).

(2)        The following particulars in respect of a line of a subscriber shall be recorded in the entry in the National Directory Database in relation to the subscriber:

(a)        the fact that the subscriber does not consent to the use of personal data relating to the subscriber contained in the National Directory Database for the purpose of direct marketing,

(b)        if appropriate, the date on which a request under Regulation 8(4) was received by the operator, and

(c)        such other particulars as may be determined by the Director.

(3)        (a)        For the purpose of complying with paragraphs (2) and (3) of Regulation 9, a person may, on such terms and conditions as may be approved under Regulation 10(2)(b) (as amended by Regulation 20) of the Regulations of 1999 and on payment to the operator of such fee as may be required by the operator -

(i)         inspect the National Directory Database at all reasonable times and take copies of, or of extracts from, entries in that Database, or

(ii)        obtain from the operator a copy (certified by the operator or by a member of the operator's staff to be a true copy) of, or of an extract from, any entry in the National Directory Database,

or both, but the operator shall refuse such inspection or copying of, or of extracts from, entries in the National Directory Database if the operator has reasonable grounds to believe that the person will not comply with the Act of 1988 and these Regulations in respect of the information in that Database.

(b)        A subscriber, or other person with the written consent of the subscriber, may -

(i)         inspect the entry in the National Directory Database in relation to the subscriber in respect of a particular line of the subscriber at all reasonable times and, on payment to the operator of such fee as may be required by the operator, take a copy of that entry, or

(ii)        on payment to the operator of such fee as may be required by the operator, obtain from the operator a copy (certified by the operator or by a member of the operator's staff to be a true copy) of that entry,

or both.

(c)        In any proceedings -

(i)         a copy of, or of an extract from, an entry in the National Directory Database certified by the operator or by a member of the operator's staff to be a true copy shall be evidence of the entry or extract on the date that it is so certified, and

(ii)        a document purporting to be such a copy, and to be certified, as aforesaid shall be deemed to be such a copy and to be so certified unless the contrary is proved.

(d)        In any proceedings -

(i)         a certificate signed by the operator or by a member of the operator's staff of an entry in the National Directory Database in relation to a specified person in respect of a particular line shall be evidence of the entry on the date that it is so certified, and

(ii)        a document purporting to be such a certificate, and to be signed, as aforesaid shall be deemed to be such a certificate and to be so signed unless the contrary is proved.

(4)        (a)       Subject to subparagraph (c), the operator may require the payment of fees in respect of the matters referred to in subparagraphs (a) and (b) of paragraph (3), and the amount of those fees shall be designed to secure, as nearly as may be and taking one year with another, that the aggregate amount of fees received, or reasonably expected to be received, equals the costs incurred, or reasonably expected to be incurred, by the operator in performing the functions conferred on the operator by paragraph (1).

(b)        Different fees may be required in respect of the matters referred to in subparagraphs (a) and (b) of paragraph (3).

(c)        The Director shall approve the amount of the fees required under subparagraph (a).

PART 6

ENFORCEMENT

Damages for contravention of Regulations.

11.       (1)        A person who suffers loss or damage as a result of a contravention of any of the requirements of these Regulations by any other person shall be entitled to damages from that other person for that loss or damage.

(2)        In legal proceedings seeking damages against a person under this Regulation, it shall be a defence for the person to prove that he, she or it had taken all reasonable care in the circumstances to comply with the requirement concerned.

Enforcement of Regulations by Commissioner.

12.       (1)        Sections 10, 12, 24, 25, 26 (insofar as it relates to a requirement specified in an enforcement notice or an information notice or a decision of the Commissioner in relation to a complaint under section 10(1)(a) of the Act of 1988) and 27 to 31 of that Act shall, with the following modifications, and any other necessary modifications, to that Act, apply to these Regulations, and references in those sections to that Act or the provisions of that Act shall, unless the context otherwise requires, be construed as including references to these Regulations or the provisions of these Regulations -

(a)        in section 1, by the insertion in subsection (1) of the following definition:

“ ‘Regulations of 2002’ means European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002;”

(b)        in section 10 -

(i)         in subsection (1)(a), by the deletion of “by a data controller or a data processor” and the substitution of “a person either where the person complains” for “an individual either where the individual complains”,

(ii)        in subsection (1)(b), by the substitution of the following subparagraph for subparagraph (ii):

“(ii)       if he or she is unable to arrange, within a reasonable time, for the amicable resolution by the parties concerned of the matter the subject of the complaint, notify in writing the person who made the complaint of his or her decision in relation to it and that the person may, if aggrieved by the decision, appeal against it to the Court under section 26 of this Act within 21 days from the receipt by the person of the notification.”,

(iii)       by the insertion of the following subsection after subsection (1):

“(1A) The Commissioner may carry out or cause to be carried out such investigations as he or she considers appropriate in order to ensure compliance with the provisions of the Regulations of 2002 and to identify any contravention thereof.”,

(iv)       in subsection (2), by the deletion of “, being a data controller or a data processor,”,

(v)        in subsection (3), by the substitution of the following paragraph for paragraph (a):

“(a)      to block, rectify, erase or destroy any of the data concerned, or”, and

(vi)       in subsection (7), by the substitution of the following for so much of the subsection as follows paragraph (a):

“(b)      if such compliance materially modifies the data concerned, any person to whom the data were disclosed during the period beginning 12 months before the date of the service of the enforcement notice concerned and ending immediately before such compliance unless such notification proves impossible or involves a disproportionate effort,

of the blocking, rectification, erasure, destruction or statement concerned.”,

(c)        in section 24 -

(i)         in subsection (2)(a), by the substitution of “a person to whom the Regulations of 2002 apply” for “a data controller or a data processor”,

(ii)        in subsection (2)(b), by the substitution of “being a person to whom the Regulations of 2002 apply or an employee of such a person” for “being a data controller, a data processor or an employee of either of them”, and

(iii)       by the deletion of subsections (3), (4) and (5), and

(d)        in section 31 -

(i)         by the substitution of the following subsection for subsection (1):

“(1) A person guilty of an offence under the Regulations of 2002 shall be liable on summary conviction to a fine not exceeding €1,250, and

(ii)        by the deletion of subsection (4).

(2)        In this Regulation -

“enforcement notice” means a notice under section 10 of the Act of 1988;

“information notice” means a notice under section 12 of that Act.

Enforcement of certain Regulations by Director.

13.       (1)        Subject to the performance by the Commissioner of the functions under Regulation 12, it shall be a function of the Director to monitor compliance with Regulations 3(2), 5, 6, 7, 9, 10, 15 and 18.

(2)        The functions of the Director under this Regulation shall be deemed to be included in the functions conferred on the Director under No. 34 of 1996 ).

(3)        The Director may give directions to a person to whom a provision of Regulation 3(2), 5, 6, 7, 9, 10, 15 or 18 applies requiring the person to take specified measures or to refrain from taking specified measures for the purpose of complying with the provision.

(4)        A person to whom Regulation 3(2), 5, 6, 7, 9, 10, 15 or 18 applies shall furnish the Director with such information as the Director may reasonably require for the purposes of his or her functions under these Regulations.

(5)        A direction given under this Regulation shall be in writing, state the reasons upon which it is based and be addressed to the person concerned and be sent or given, as soon as practicable, in any of the following ways-

(a)        by delivering it to the person,

(b)        by leaving it at the address at which the person carries on business, or

(c)        by sending it by prepaid registered post to the address at which the person carries on business.

(6)        For the purposes of paragraph (5), a company within the meaning of the Companies Acts 1963 to 2001 shall be deemed to be carrying on business at its registered office, and any other body corporate or any unincorporated body shall be deemed to be carrying on business at its principal office or place of business.

(7)        Where the Director is of opinion that a person has not complied with a direction given by him or her under this Regulation, he or she may apply to the Circuit Court for an order directing the person to comply with-

(a)        the direction, or

(b)        the direction as modified (by the imposition of a condition or otherwise) by the Court.

(8)        An application under this Regulation to the Circuit Court shall be determined by the judge of the Circuit Court for the circuit in which the alleged non-compliance with Regulation 3(2), 5, 6, 7, 9, 10, 15 or 18, as may be appropriate, took place or the defendant carries on business.

Co-operation between Commissioner and Director.

14.       The Commissioner and the Director shall, in the performance of their functions under these Regulations, co-operate with and provide assistance to each other.

PART 7

MISCELLANEOUS

Security of telecommunications services.

15.       (1)        A telecommunications services provider shall comply with Article 4 in relation to telecommunications services supplied by the provider.

(2)        A telecommunications network provider whose public telecommunications network is used by a telecommunications services provider for the supply of telecommunications services shall comply with any reasonable request made by the telecommunications services provider for the purposes of complying with paragraph (1).

Right to bills that are not itemised.

16.       A subscriber may request the relevant telecommunications services provider to give him or her bills that are not itemised in respect of telecommunications services supplied by the provider to the subscriber and the provider shall comply with such a request.

Itemised billing and privacy.

17.       The Director shall, in the performance of his or her functions, have regard to the need to reconcile the right of subscribers to receive itemised bills with the right to privacy of calling users and called subscribers.

Cessation of automatic call forwarding.

18.       (1)        A relevant telecommunications services provider shall ensure that calls automatically forwarded to a subscriber's terminal as a result of action taken by a third party shall without charge, upon a request being made to the provider by the subscriber to do so, cease to be so forwarded as soon as practicable after the receipt of such a request.

(2)        A telecommunications network provider or any other telecommunications services provider whose network is interconnected with the network to which the line of the subscriber concerned is connected shall, within 48 hours, comply with any reasonable request made by a telecommunications services provider for the purposes of complying with paragraph (1).

Amendment of section 14(1) of Act of 1988.

19.       Section 14(1) of the Act of 1988 is amended by the substitution of “activities under the European Communities (Data Protection and Privacy in Telecommunications) Regulations 2002 and this Act” for “activities under this Act”.

Amendment of Regulation 10(2)(b) of Regulations of 1999.

20.       Regulation 10(2)(b) of the Regulations of 1999 is amended by the substitution of “on such terms and conditions as may be approved by the Director from time to time” for “requesting such information”.

Transfer of functions from Director to Commission for Communications Regulation.

21.       On and after the establishment day within the meaning of section 2(1) of the Communications Regulation Act 2002 ( No.20 of 2002 ), the functions of the Director under these Regulations are transferred to the Commission for Communications Regulation, and references in these Regulations to the Director shall, from that day, be construed as references to the Commission for Communications Regulation.

Explanatory Note

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

The purpose of these regulations is to give legal effect to Directive 1997/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector.

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¹ OJ No. L24, 30.1.98, p. 1

² OJ No. L101, 1.4.98, p. 24