Part 6Information to be included with electronic material

Enforcement

I1I248Offence of breaching section 41

1

Where any electronic material to which section 41 applies is published in contravention of that section, the following persons are guilty of an offence—

a

the promoter of the material, and

b

any person on behalf of whom the material is being published (and who is not the promoter).

2

A person guilty of an offence under subsection (1) is liable—

a

on summary conviction in England and Wales, to a fine;

b

on summary conviction in Scotland or Northern Ireland, to a fine not exceeding level 5 on the standard scale.

3

It is a defence for a person charged with an offence under subsection (1) to prove—

a

that the contravention arose from circumstances beyond the person’s control, and

b

that the person took all reasonable steps, and exercised all due diligence, to ensure that the contravention would not arise.

4

It is a defence for a person charged with an offence under subsection (1) to prove that the person acted in accordance with guidance under section 54.

5

It is a defence for a person charged with an offence under subsection (1) in relation to the republication of electronic material to prove that—

a

the electronic material had previously been published,

b

the person reasonably believed that when it was previously published—

i

section 41 applied to it, and

ii

it was published in compliance with that section, and

c

it was not materially altered when it was republished.

6

In subsection (5)(c) the reference to electronic material not being materially altered includes a reference to the electronic material retaining—

a

the information within section 41(3), or

b

the access to such information,

as a result of which the person reasonably believed its previous publication complied with section 41.

7

The court by or before which a person is convicted of an offence under subsection (1) must notify the Commission of the person’s conviction and the sentence imposed on the conviction as soon as is practicable.

8

This section is subject to Schedule 11, which provides for certain persons who would otherwise be guilty of an offence under this section to be guilty of an illegal practice.

9

See also section 49, which makes provision about the removal etc of electronic material in the event of a conviction under this section.