The High Court has approved, with modifications, a plan for the Commission for Communications Regulation (ComReg) to electronically search data seized from Eircom as part of an investigation into the telecommunications company’s regulatory compliance. The court ruled that ComReg, rather than Eircom, should conduct the searches.
The judgment, delivered by Mr Justice Twomey on 2 February 2024, concerned ComReg’s application under section 61 of the Communications Regulation Act 2002. The application sought approval for steps to identify and set aside material that may be legally privileged or irrelevant before ComReg continues its investigation. ComReg had kept its copy of the data sealed pending the court’s decision; Eircom retained the original data.
ComReg began investigating after Eircom proposed a wholesale discount scheme for fibre-to-the-home services, known as CRD 967, which ComReg said did not meet regulatory requirements and raised competition concerns. Eircom withdrew the scheme in March 2023. ComReg later said it had received information suggesting the proposal may have been connected to commercial negotiations or tender processes. Its investigation is to examine the circumstances surrounding the scheme, related discussions and distribution of discount information, and whether Eircom complied with its obligations. No finding on those matters was made in this application.
ComReg’s unannounced search of Eircom’s premises took place from 31 May to 2 June 2023. It seized a copy of digital data. Eircom argued that ComReg conducting the searches risked exposing privileged or confidential material and proposed that Eircom apply search terms and provide ComReg with the resulting data.
The court held that the law’s requirement to maintain confidentiality did not require Eircom to carry out the searches. It reasoned that confidentiality could not be guaranteed completely regardless of who searched the data, and that allowing the regulated company to decide which seized material to provide would undermine the regulator’s statutory investigative powers. The court also noted that Eircom had not challenged the legality or scope of the search and seizure in these proceedings.
The approved plan allows Eircom to make submissions on search terms and to observe specified steps at ComReg’s offices. Potentially privileged material is to be stored separately and kept inaccessible to ComReg while privilege claims are considered. Disputes about relevant search terms, privilege terms or privilege claims are to be referred to the High Court. The judge directed ComReg to add a route to court for disputes over privilege search terms and approved further refinements to that process.
The court ordered the parties to try to agree the terms of final orders and provide any draft to the Registrar. The case was provisionally listed for mention one week after judgment, with liberty to notify the Registrar if the listing proved unnecessary.