High Court clears Comreg to search data it seized from Eircom

Comreg had made an unannounced search of Eircom's premises last summer, when it seized some of the company's digital data

Mr Justice Michael Twomey said Comreg should conduct the search of Eircom data. Otherwise, he said, 'the very purpose of search and seizure powers, by a regulator as part of its investigation of a regulated entity, would be undermined'. 

The High Court has directed that the communications regulator can conduct searches of data seized from Eircom as part of an investigation into whether the company is complying with market competition obligations.

Comreg began an investigation into Eircom (trading as eir) after the company published details of a proposed discount scheme for access to its fibre to home/businesses scheme by its wholesale customers namely other service providers such as Sky.

Comreg said this scheme did not meet regulatory requirements and was concerned about the impact it would have on competition.

Eircom, which is the dominant provider in the market, withdrew the discount scheme but Comreg remained concerned about the fact that Eircom had engaged in discussions with other operators about proposed discount schemes before the scheme had been approved by the watchdog.

As a result, Comreg conducted an unannounced search of the premises of Eircom over three days — between May 31 and June 2, 2023 — seizing some of the company's digital data.

Comreg then applied to the High Court asking it to approve a step plan it had proposed for the purpose of eliminating privileged and irrelevant/private information from the seized data.

Eircom argued that if Comreg conducted the electronic keyword search to remove privileged/irrelevant information, then, it was likely that Comreg will have access to Eircom's privileged or private/confidential information.

This will mean, it says, that the confidentiality of its information is not ‘maintained’, as required by statute.

Therefore, it argued, Eircom itself should conduct the search and provide the refined data to Comreg with privileged/irrelevant information removed. Comreg disagreed.

Eircom also refused to make any submissions to Comreg about the format of electronic word searches that should be carried out other than that related to certain lawyers and staff who authored or appeared on privileged documents.

Eircom said it did so because it believed the scope of the investigation was not sufficiently clear.

In a judgment on Friday, Mr Justice Michael Twomey said Comreg should conduct the search.

Otherwise, he said, "the very purpose of search and seizure powers, by a regulator as part of its investigation of a regulated entity, would be undermined". 

He also approved a plan proposed by Comreg which involves the use of an electronic word search designed to eliminate privileged and irrelevant material from the seized data, subject to a small number of minor modifications.

He also encouraged the parties to engage to see if agreement can be reached regarding all outstanding matters, without the need for further court time.