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The Network and Information Systems Regulations 2018

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This is the original version (as it was originally made).

Penalties

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18.—(1) The relevant competent authority for an OES may serve a penalty notice upon that OES if the OES was served with an enforcement notice under regulation 17(1) and the OES—

(a)was required to take steps to rectify a failure within a time period stipulated in the enforcement notice but the operator failed to take any steps or any adequate steps; or

(b)was not required to take steps to rectify a failure but the competent authority is not satisfied with the representations submitted by the OES in accordance with regulation 17(3)(d).

(2) The Information Commissioner may serve a penalty notice upon a RDSP if the RDSP was served with an enforcement notice under regulation 17(2) and the RDSP—

(a)was required to take steps to rectify a failure within a time period stipulated in the enforcement notice but the RDSP failed to take any steps or any adequate steps; or

(b)was not required to take steps to rectify a failure but the Information Commissioner is not satisfied with the representations submitted by the RDSP in accordance with regulation 17(3)(d).

(3) A penalty notice must be in writing and must specify the following—

(a)the reasons for imposing a penalty;

(b)the sum that is to be imposed as a penalty and how it is to be paid;

(c)the date on which the notice is given;

(d)the date, at least 30 days after the date specified in sub-paragraph (c), before which the penalty must be paid (“the payment period”);

(e)details about the independent review process set up under regulation 19 and how the right to review may be exercised; and

(f)the consequences of failing to make payment within the payment period.

(4) A competent authority or the Information Commissioner may withdraw a penalty notice by informing the person upon whom it was served in writing.

(5) The sum that is to be imposed under a penalty notice served under this regulation must be an amount that—

(a)the competent authority or Information Commissioner determines is appropriate and proportionate to the failure in respect of which it is imposed; and

(b)is in accordance with paragraph (6).

(6) The amount that is to be imposed under a penalty notice must—

(a)not exceed £1,000,000 for any contravention which the enforcement authority determines could not cause a NIS incident;

(b)not exceed £3,400,000 for a material contravention which the enforcement authority determines has caused, or could cause, an incident resulting in a reduction of service provision by the OES or RDSP for a significant period of time;

(c)not exceed £8,500,000 for a material contravention which the enforcement authority determines has caused, or could cause, an incident resulting in a disruption of service provision by the OES or RDSP for a significant period of time; and

(d)not exceed £17,000,000 for a material contravention which the enforcement authority determines has caused, or could cause, an incident resulting in an immediate threat to life or significant adverse impact on the United Kingdom economy.

(7) In this regulation—

(a)“a material contravention” means a failure to take steps, or any adequate steps, within the stipulated time period to rectify a failing that is described in regulation 17(1)(a) to (d) or (2)(a) to (e);

(b)“enforcement authority” means the designated competent authority for an OES or the Information Commissioner for RDSPs.

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