Online Safety Act 2023

Penalty notices etc

139 Penalty for failure to comply with confirmation decision

(1) This section applies if—

(a) OFCOM have given a confirmation decision to a person,

(b) the decision includes requirements of a kind described in section 133(1) (requirements to take steps),

(c) OFCOM are satisfied that the person has failed to comply with one or more of those requirements, and

(d) OFCOM have not imposed a daily rate penalty under section 137(1)(b) in respect of that failure.

(2) OFCOM may give the person a penalty notice under this section in respect of the failure to comply with the confirmation decision, requiring the person to pay to OFCOM a penalty of a single amount in sterling determined by OFCOM.

(3) But OFCOM may give such a notice to the person only after—

(a) notifying the person that they propose to give a penalty notice under this section, specifying the reasons for doing so and indicating the amount of the proposed penalty, and

(b) giving the person an opportunity to make representations (with any supporting evidence).

(4) A penalty notice under this section must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state the amount of the penalty,

(c) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(d) specify the period within which the penalty must be paid,

(e) contain details of the rights of appeal under section 168, and

(f) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(5) The period specified under subsection (4)(d) must be at least 28 days beginning with the day on which the penalty notice is given.

140 Penalty for failure to comply with notice under section 121(1)

(1) This section applies if—

(a) OFCOM have given a notice under section 121(1) relating to a Part 3 service to the provider of that service (notices to deal with terrorism content and CSEA content), and

(b) OFCOM are satisfied that the provider has failed, or is failing, to comply with the notice.

(2) OFCOM may give the provider a notice under this subsection stating that they propose to impose a penalty on the provider in respect of that failure.

(3) The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice.

(4) Subsection (5) applies if—

(a) the period allowed for representations has expired, and

(b) OFCOM are still satisfied as to the failure mentioned in subsection (1).

(5) OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(6) The penalty may consist of any of the following, depending on what was specified in the notice about the proposed penalty—

(a) a single amount;

(b) an amount calculated by reference to a daily rate;

(c) a combination of a single amount and an amount calculated by reference to a daily rate.

(7) See section 142 for information which must be included in notices under this section.

(8) Nothing in this section is to be taken to prevent OFCOM from giving the provider a further notice under section 121(1) (see section 126), as well as giving a penalty notice under subsection (5).

141 Non-payment of fee

(1) This section applies if—

(a) the provider of a regulated service is liable to pay a fee to OFCOM under section 84 or Schedule 10 in respect of the current charging year (within the meaning of Part 6) or a previous charging year, and

(b) in OFCOM’s opinion, the provider has not paid the full amount of the fee that the provider is liable to pay.

(2) OFCOM may give the provider a notice under this subsection specifying—

(a) the outstanding amount of the fee that OFCOM consider the provider is due to pay to them under section 84 or Schedule 10, and

(b) the period within which the provider must pay it.

(3) A notice under subsection (2)—

(a) may be given in respect of liabilities that relate to different charging years;

(b) may also state that OFCOM propose to impose a penalty on the provider.

(4) The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice.

(5) Subsection (6) applies if—

(a) the notice under subsection (2) stated that OFCOM propose to impose a penalty,

(b) the period allowed for representations has expired, and

(c) OFCOM are satisfied that an amount of the fee is still due to them.

(6) OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(7) The penalty may consist of any of the following, depending on what was specified in the notice about the proposed penalty—

(a) a single amount;

(b) an amount calculated by reference to a daily rate;

(c) a combination of a single amount and an amount calculated by reference to a daily rate.

(8) A penalty notice under subsection (6) may require the payment of separate single amounts in respect of liabilities that relate to different charging years.

(9) See section 142 for information which must be included in notices under this section.

(10) Nothing in this section affects OFCOM’s power to bring proceedings (whether before or after the imposition of a penalty by a notice under subsection (6)) for the recovery of the whole or part of an amount due to OFCOM under section 84 or Schedule 10.

(11) But OFCOM may not bring such proceedings unless a provider has first been given a notice under subsection (2) specifying the amount due to OFCOM.

142 Information to be included in notices under sections 140 and 141

(1) Subsection (2) applies in relation to—

(a) a notice under section 140(2), and

(b) a notice under section 141(2) stating that OFCOM propose to impose a penalty.

(2) Such a notice must—

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

(b) state whether OFCOM propose that the penalty should consist of a single amount, an amount calculated by reference to a daily rate, or a combination of the two,

(c) indicate the amount of the proposed penalty, including (in relation to an amount calculated by reference to a daily rate) the daily rate and how the penalty would be calculated,

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

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

(f) specify the period within which representations in relation to the proposed penalty may be made.

(3) A penalty notice under section 140(5) or 141(6) must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state whether the penalty consists of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, and how it is calculated,

(c) in relation to a single amount, state that amount,

(d) in relation to an amount calculated by reference to a daily rate, state the daily rate,

(e) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(f) specify a reasonable period within which the penalty must be paid,

(g) contain details of the rights of appeal under section 168, and

(h) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(4) A penalty notice under section 141(6) must also specify the amount of the fee that is (in OFCOM’s opinion) due to be paid to OFCOM.

(5) The period specified under subsection (3)(f)  for the payment of a single amount must be at least 28 days beginning with the day on which the penalty notice is given.

(6) Subsection (7) applies in relation to a penalty notice under section 140(5) or 141(6) that includes a requirement to pay an amount calculated by reference to a daily rate.

(7) Such a notice must—

(a) state the date from which the amount begins to be payable, which must not be earlier than the day after the day on which the notice is given;

(b) provide for the amount to continue to be payable at the daily rate until—

(i) (in the case of a notice under section 140(5)) the date on which OFCOM are satisfied that the provider is complying with the notice under section 121(1), or (in the case of a notice under section 141(6)) the date on which the full amount of the fee (as specified in the penalty notice) has been paid to OFCOM, or

(ii) an earlier date specified in the penalty notice.