PART 4A

ON-DEMAND PROGRAMME SERVICES

Enforcement of service providers’ principal duties
368I
1
Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened
section 368CB or
section 368D
, or that a provider of a non-UK on-demand programme service that is a Tier 1 service is contravening or has contravened section 368D,
they may do one or both of the following—
a
give the provider an enforcement notification under this section;
b
impose a financial penalty on the provider in accordance with section 368J.
1A
Where OFCOM (as the appropriate regulatory authority) determine that a provider of a Tier 1 service is contravening or has contravened section 368HC, 368HJ(1), 368HK(2) or 368HP, they may do one or both of the following—
a
give the provider an enforcement notice under this section;
b
impose a financial penalty on the provider in accordance with section 368J.
2
The appropriate regulatory authority must not make a determination as mentioned in subsection (1)
or (1A)
unless there are reasonable grounds for believing that a contravention of
section 368CB or
section 368D
or (as the case may be)
section 368HC
,
368HJ
(1)
,
368HK
(2)
or
368HP
is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.
3
An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1)
or (1A)
and imposes requirements on the provider to take such steps for complying with
section 368CB or
section 368D
or (as the case may be)
section 368HC
,
368HJ
(1)
,
368HK
(2)
or
368HP
and for remedying the consequences of the contravention
... as may be specified in the notification.
4
The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—
a
cease providing or restrict access to–
i
a specified programme, or
ii
programmes of a specified description;
b
cease showing or restrict access to–
i
a specified advertisement, or
ii
advertisements of a specified description;
c
provide additional information to users of the service prior to the selection of a specified programme by the user for viewing;
d
show an advertisement only with specified modifications;
e
publish a correction in the form and place and at the time specified; or
f
publish a statement of the findings of the appropriate regulatory authority in the form and place and at the time specified.
5
An enforcement notification must—
a
include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and
b
fix a reasonable period for the taking of the steps required by the notification.
6
Where a provider is required by an enforcement notification to publish a correction or a statement of findings, the provider may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.
7
It is the duty of a provider to whom an enforcement notification has been given to comply with it.
8
That duty is enforceable in civil proceedings by the appropriate regulatory authority—
a
for an injunction;
b
for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or
c
for any other appropriate remedy or relief.
8A
Subsection (8) applies whether or not the provider is in the United Kingdom.
9
If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on that provider in accordance with section 368J.
10
A financial penalty may not be imposed on a provider of an on-demand programme service
, or a non-UK on-demand programme service that is a Tier 1 service,
under subsection (1)
, (1A)
or (9) in respect of an act or omission if the provider has been convicted of a criminal offence in respect of that act or omission.
Words in s. 368I(3) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 36(d)(i) (with Pt. 7)
Words in s. 368I(2) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(5)(b); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(3) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 36(d)(ii) (with Pt. 7)
S. 368I(8A) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 8 para. 8; S.I. 2024/858, reg. 2(1)(z2)
Words in s. 368I(10) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(7)(a); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 36(c) (with Pt. 7)
Words in s. 368I(2) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(5)(a); S.I. 2024/858, reg. 2(1)(z)
Word in s. 368I(10) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(7)(b); S.I. 2024/858, reg. 2(1)(z)
Pt. 4A inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I. 2009/2979), regs. 1(1), 2
S. 368I(1A) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(4); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(3) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(6)(a); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(3) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(6)(b); S.I. 2024/858, reg. 2(1)(z)
S. 368I(10) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 36(e) (with Pt. 7)
S. 368I heading substituted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(2); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(1) inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(d), Sch. 6 para. 3(3); S.I. 2024/858, reg. 2(1)(z)
Words in s. 368I(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 36(b) (with Pt. 7)