The Open Internet Access (EU Regulation) Regulations 2016

PART 5 ENFORCEMENT AND PENALTIES

Interpretation of Part 5

18.—(1) For the purposes of this Part, where there is a breach of an obligation under the EU Regulation or these Regulations that requires a person to do anything within a particular period or before a particular time, that breach shall be taken to continue after the end of that period, or after that time, until that thing is done.

(2) References in this Part to remedying the consequences of a breach include references to paying an amount to a person—

(a) by way of compensation for loss or damage suffered by that person; or

(b) in respect of annoyance, inconvenience or anxiety to which that person has been put.

(3) In this Part—

“notified person” means a person who has been given a notification under regulation 19;

“relevant business” means so much of any business carried on by the notified person as consists in the provision of public electronic communications networks or publicly available electronic communications services;

“relevant period” means—

(a)

except in a case falling within subparagraphs (b) or (c), the period of one year ending with the 31st March next before the time when notification of the breach was given under regulation 19;

(b)

in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and

(c)

in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

Notification of breach

19.—(1) Where OFCOM determine that there are reasonable grounds for believing that a person is breaching, or has breached an obligation under Articles 3, 4 or 5 of the EU Regulation or under these Regulations they may give that person a notification under this regulation.

(2) A notification under this regulation is one which—

(a) sets out the determination made by OFCOM;

(b) specifies the obligation and the breach in respect of which that determination has been made;

(c) specifies the period during which the person notified has an opportunity of making representations;

(d) to the extent that the notification relates to a breach of an information requirement, specifies the information to be provided by the person to OFCOM in order to comply with the requirement;

(e) to the extent that the notification relates to an obligation which is not an information requirement, specifies the steps that OFCOM think should be taken by the person in order to—

(i) comply with the obligation; and

(ii) remedy the consequences of the breach; and

(f) specifies any penalty which OFCOM are minded to impose in accordance with regulation 20.

(3) A notification under this regulation—

(a) may be given in respect of more than one breach; and

(b) if it is given in respect of a continuing breach, may be given in respect of any period during which the breach has continued.

(4) Where a notification under this regulation has been given to a person in respect of a breach of an obligation under the EU Regulation or a breach of an obligation under these Regulations, OFCOM may give a further notification in respect of the same breach of that obligation if, and only if—

(a) the breach is one occurring after the time of the giving of the earlier notification;

(b) the breach is a continuing breach and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified breach.

Penalties for breach

20.—(1) This regulation applies where a person is given a notification under regulation 19 which specifies a proposed penalty.

(2) OFCOM may not specify a penalty in relation to a breach of an information requirement if proceedings for an offence under regulation 23 have been brought against the notified person in respect of the breach.

(3) Where a notification under regulation 19 relates to more than one breach, a separate penalty may be specified in respect of each breach.

(4) Where such a notification relates to a continuing breach, no more than one penalty may be specified in respect of the period of breach specified in the notification.

(5) But in relation to a continuing breach, a penalty may be specified in respect of each day on which the breach continues after—

(a) the giving of a confirmation decision under regulation 22 which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with an obligation so specified.

(6) The amount of a penalty under paragraph (5) is to be such amount as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the breach in respect of which it is imposed,

but not exceeding £500 per day for a breach of an information requirement and £20,000 per day for any other breach.

Amount of penalty under regulation 20

21.—(1) The amount of a penalty notified under regulation 19 (other than a penalty falling within regulation 20(5)) is to be such amount as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the breach in respect of which it is imposed,

but in the case of a breach of an information requirement not exceeding £2,000,000, and in the case of any other breach of the EU Regulation or these Regulations, not exceeding ten per cent. of the turnover of the notified person’s relevant business for the relevant period.

(2) For the purposes of this regulation the turnover of a notified person’s relevant business for a period shall be calculated in accordance with regulation 24.

Enforcement of notification under regulation 19

22.—(1) This regulation applies where—

(a) a person has been given a notification under regulation 19;

(b) OFCOM have allowed the notified person an opportunity to make representations about the matters notified; and

(c) the period allowed for the making of representations has expired.

(2) OFCOM may—

(a) give the notified person a decision (a “confirmation decision”) confirming the matters referred to in regulation 19(2); or

(b) inform the notified person that they are satisfied with the person’s representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to a notified person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in breach of an obligation specified in the notification under regulation 19.

(4) A confirmation decision—

(a) must be given to the notified person without delay;

(b) must include reasons for the decision;

(c) may require immediate action by the notified person to comply with the obligations specified in the notification under regulation 19, or may specify a period within which the person must comply with those obligations;

(d) may require the notified person to pay—

(i) the penalty specified in the notification under regulation 19; or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the notified person’s representations or steps taken by the notified person to comply with the obligation or remedy the consequences of the breach; and

(e) may specify the period within which the penalty is to be paid.

(5) It is the duty of the notified person to comply with a confirmation decision.

(6) That duty is enforceable in civil proceedings by OFCOM—

(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.

(7) A penalty imposed by a confirmation decision—

(a) must be paid to OFCOM; and

(b) if not paid within the period specified by them, is to be recoverable by them accordingly.

Offences in connection with information requirements

23.—(1) A person who fails to provide information in accordance with an information requirement is guilty of an offence and will be liable—

(a) on summary conviction, to a fine in England and Wales, or in Scotland and Northern Ireland to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(2) In proceedings against a person (“A”) for an offence under paragraph (1) it is a defence for A to show—

(a) that it was not reasonably practicable for A to comply with the requirement within the period specified by OFCOM; but

(b) that A has taken all reasonable steps to provide the required information after the end of that period.

(3) Proceedings for an offence under paragraph (1) may be brought in respect of a breach by a person of an information requirement only if—

(a) OFCOM have given the person a notification under regulation 19 in respect of that breach;

(b) that notification required a person to provide information;

(c) a confirmation decision has been given under regulation 22 in respect of that requirement;

(d) the period allowed under that decision has expired without the required information having been provided; and

(e) OFCOM have not imposed a financial penalty under regulation 20 in respect of that breach.

(4) A person (“B”) is guilty of an offence if—

(a) in pursuance of any information requirement, B provides any information that is false in any material particular; and

(b) at the time B provides it, B either knows it to be false or is reckless as to whether or not it is false.

(5) A person guilty of an offence under paragraph (4) will be liable—

(a) on summary conviction, to a fine in England and Wales, or in Scotland and Northern Ireland to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

(6) Where an offence under this regulation is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate; or

(b) a person who was purporting to act in any such capacity,

that person (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(7) Where an offence under this regulation—

(a) is committed by a Scottish firm; and

(b) is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner of the firm,

that person (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(8) In this regulation, “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

Calculation of turnover of notified person’s relevant business

24.—(1) The turnover of a notified person shall be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom.

(2) The turnover of a notified person shall be limited to the amounts derived by that person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover.

(3) When a notified person’s relevant business consists of two or more undertakings that each prepare accounts then the turnover is to be calculated by adding together the turnover of each, save that no account shall be taken of any turnover resulting from the supply of goods or the provision of services between them.

(4) Any aid (within the meaning of Article 107 of the Treaty on the Functioning of the European Union) granted by a public body to a notified person which relates to one of that person’s ordinary activities is to be included in the calculation of turnover if the notified person is himself the recipient of the aid and if the aid is directly linked to the carrying out by that person of the relevant business.

Destination of penalties

25.  Where OFCOM receives an amount in respect of a financial penalty under these Regulations, OFCOM must pay that amount into the Consolidated Fund.