Online Safety Act 2023

130 Provisional notice of contravention

(1) OFCOM may give a notice under this section (a “provisional notice of contravention”) relating to a regulated service to the provider of the service if they consider that there are reasonable grounds for believing that the provider has failed, or is failing, to comply with any enforceable requirement (see section 131) that applies in relation to the service.

(2) OFCOM may also give a provisional notice of contravention to a person on either of the grounds in subsection (3).

(3) The grounds are that—

(a) the person has been given an information notice and OFCOM consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with either of the duties set out in section 102(8) (duties in relation to information notices), or

(b) the person is required by a skilled person appointed under section 104 to give assistance to the skilled person, and OFCOM consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty set out in subsection (7) of that section to give such assistance.

(4) A provisional notice of contravention given to a person must—

(a) specify the duty or requirement with which (in OFCOM’s opinion) the person has failed, or is failing, to comply, and

(b) give OFCOM’s reasons for their opinion that the person has failed, or is failing, to comply with it.

(5) A provisional notice of contravention may also contain details as mentioned in subsection (6) or (7), or both.

(6) A provisional notice of contravention may specify steps that OFCOM consider the person needs to take in order to—

(a) comply with the duty or requirement, or

(b) remedy the failure to comply with it.

(7) A provisional notice of contravention may state that OFCOM propose to impose a penalty on the person, and in such a case the notice must—

(a) state the reasons why OFCOM propose to impose a penalty,

(b) state whether OFCOM propose to impose a penalty of a single amount, a penalty calculated by reference to a daily rate, or both penalties (see section 137(1)),

(c) indicate the amount of a penalty that OFCOM propose to impose, including (in relation to a penalty calculated by reference to a daily rate) the daily rate and how the penalty would be calculated,

(d) in relation to a penalty calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the penalty should be payable, and

(e) state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account.

(8) A provisional notice of contravention given to a person must—

(a) state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and

(b) specify the period within which such representations may be made.

(9) A provisional notice of contravention may be given in respect of a failure to comply with more than one enforceable requirement.

(10) Where a provisional notice of contravention is given in respect of a continuing failure, the notice may be given in respect of any period during which the failure has continued, and must specify that period.

(11) Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty or requirement (“the first notice”), a further provisional notice of contravention in respect of a failure to comply with that same duty or requirement may be given to the person only—

(a) in respect of a separate instance of the failure after the first notice was given,

(b) where a period was specified in the first notice in accordance with subsection (10), in respect of the continuation of the failure after the end of that period, or

(c) if the first notice has been withdrawn (without a confirmation decision being given to the person in respect of the failure).