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Criminal Justice and Immigration Act 2008

Section 144: Power to require data controllers to pay monetary penalty

828.Section 144 inserts new sections 55A to 55E into the Data Protection Act 1998. These new sections create a framework for the Information Commissioner to serve a monetary penalty notice on a data controller.

829.New section 55A(1) gives the Information Commissioner a discretion to serve a monetary penalty notice on a data controller if the Commissioner is satisfied there has been both a serious contravention by the data controller of the data protection principles and that the contravention was of a kind likely to cause substantial damage or substantial distress. The Commissioner must also be satisfied that the contravention was deliberate or that the data controller knew or ought to have known that there was a risk that the contravention would occur (and that it would be of a kind likely to cause substantial harm or substantial distress) but failed to take reasonable steps to prevent it occurring (new section 5A(2) and (3)). New section 55A(5) and (9) make provision for the Secretary of State to make regulations prescribing the maximum amount of the penalty.

830.New section 55B makes provision for the procedural rights of data controllers served with a monetary penalty notice. This includes a duty on the Information Commissioner to serve a data controller with a notice of intent that he proposes to issue a monetary penalty notice. This will allow a data controller to make representations before any monetary penalty notice is imposed. It also provides a right of appeal to the Information Tribunal against a monetary penalty notice issued or the amount specified in a monetary penalty notice. By new section 55B(3) and (6), the Secretary of State may make regulations prescribing what must be contained in notices of intent.

831.New section 55C requires the Information Commissioner to prepare and issue guidance on how he proposes to exercise his functions in respect of notices of intent and monetary penalty notices. The guidance, and all alterations and replacements, must be approved by the Secretary of State, and laid before Parliament.

832.New section 55D makes provision for the enforcement of monetary penalty notices.

833.New section 55E confers a power on the Secretary of State to make an order to make further provision in connection with monetary penalty notices and notices of intent.

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