Online Safety Act 2023

137Confirmation decisions: penaltiesU.K.

(1)A confirmation decision may require the person to whom it is given to do either or both of the following, depending on what was proposed in the provisional notice of contravention (see paragraph 3 of Schedule 13)—

(a)pay to OFCOM a penalty of a single amount in sterling determined by OFCOM (a “single penalty”) and specified in the confirmation decision;

(b)if the confirmation decision includes a requirement of the kind described in section 133(1)(a) in respect of a continuous failure to comply with a notified requirement, pay a daily rate penalty to OFCOM if that same failure continues after the compliance date.

(2)A “daily rate penalty” means a penalty of an amount in sterling determined by OFCOM and calculated by reference to a daily rate.

(3)A confirmation decision may impose separate single penalties for failure to comply with separate notified requirements specified in the decision.

(4)Where a provisional notice of contravention is given in respect of a period of continuing failure to comply with a notified requirement, no more than one single penalty may be imposed by a confirmation decision in respect of the period of failure specified in the provisional notice of contravention.

(5)A confirmation decision that imposes a penalty must—

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

(b)specify each notified requirement to which the penalty relates,

(c)specify the period during which the failure to comply with a notified requirement has occurred, and whether the failure is continuing,

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

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

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

(g)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).

(6)The period specified under subsection (5)(e) for the payment of a single penalty must be at least 28 days beginning with the day on which the confirmation decision is given.

(7)If a confirmation decision imposes a single penalty and a daily rate penalty, the information mentioned in subsection (5)(a), (b), (d) and (e) must be given in respect of each kind of penalty.

(8)As well as containing the information mentioned in subsection (5), a confirmation decision that imposes a daily rate penalty in respect of a continuous failure to comply with a notified requirement must—

(a)state the daily rate of the penalty and how the penalty is calculated;

(b)state that the person will be liable to pay the penalty if that same failure continues after the compliance date;

(c)state the date from which the penalty begins to be payable, which must not be earlier than the day after the compliance date;

(d)provide for the penalty to continue to be payable at the daily rate until—

(i)the date on which the notified requirement is complied with,

(ii)if the penalty is imposed in respect of a failure to comply with more than one notified requirement, the date on which the last of those requirements is complied with, or

(iii)an earlier date specified in the confirmation decision.

(9)In this section—

• “compliance date”, in relation to a notified requirement, means—

  (a)

  in a case where the confirmation decision requires steps to be taken immediately to comply with that requirement (see section 133(5)), the date of the confirmation decision;

  (b)

  in any other case, the last day of the period specified in the confirmation decision in accordance with section 133(4)(f) for compliance with that requirement;

• “notified requirement” has the meaning given by section 132.