Legislation – Online Safety Act 2023

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PART 7OFCOM’s powers and duties in relation to regulated services

CHAPTER 6Enforcement powers

Publication of enforcement action

149Publication by OFCOM of details of enforcement action

(1)

Subsections (2) and (3) apply where OFCOM have given a person (and not withdrawn) any of the following—

(a)

a confirmation decision;

(b)

a penalty notice under section 139;

(c)

a penalty notice under section 140(5);

(d)

a penalty notice under section 141(6).

(2)

OFCOM must publish details identifying the person and describing—

(a)

the failure (or failures) to which the decision or notice relates, and

(b)

OFCOM’s response.

(3)

But OFCOM may not publish anything that, in OFCOM’s opinion—

(a)

is confidential in accordance with subsections (4) and (5), or

(b)

is otherwise not appropriate for publication.

(4)

A matter is confidential under this subsection if—

(a)

it relates specifically to the affairs of a particular body, and

(b)

publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(5)

A matter is confidential under this subsection if—

(a)

it relates to the private affairs of an individual, and

(b)

publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(6)

Where OFCOM have given a person a provisional notice of contravention but have not given the person a confirmation decision, OFCOM may publish details identifying the person and describing the reasons for the provisional notice.

(7)

OFCOM must notify the person concerned that information has been published under this section.

150Publication by providers of details of enforcement action

(1)

This section applies where—

(a)

OFCOM have given a person (and not withdrawn) any of the following—

(i)

a confirmation decision;

(ii)

a penalty notice under section 139;

(iii)

a penalty notice under section 140(5);

(iv)

a penalty notice under section 141(6), and

(b)

the appeal period in relation to the decision or notice has ended.

(2)

OFCOM may give to the person a notice (a “publication notice”) requiring the person to—

(a)

publish details describing—

(i)

the failure (or failures) to which the decision or notice mentioned in subsection (1)(a) relates, and

(ii)

OFCOM’s response, or

(b)

otherwise notify users of the service to which the decision or notice mentioned in subsection (1)(a) relates of those details.

(3)

A publication notice may require a person to publish details under subsection (2)(a) or give notification of details under subsection (2)(b) or both.

(4)

A publication notice must—

(a)

specify the decision or notice mentioned in subsection (1)(a) to which it relates,

(b)

specify or describe the details that must be published or notified,

(c)

specify the form and manner in which the details must be published or notified,

(d)

specify a date by which the details must be published or notified, and

(e)

contain information about the consequences of not complying with the notice.

(5)

Where a publication notice requires a person to publish details under subsection (2)(a) the notice may also specify a period during which publication in the specified form and manner must continue.

(6)

Where a publication notice requires a person to give notification of details under subsection (2)(b) the notice may only require that notification to be given to United Kingdom users of the service (see section 227).

(7)

A publication notice may not require a person to publish or give notification of anything that, in OFCOM’s opinion—

(a)

is confidential in accordance with subsections (8) and (9), or

(b)

is otherwise not appropriate for publication or notification.

(8)

A matter is confidential under this subsection if—

(a)

it relates specifically to the affairs of a particular body, and

(b)

publication or notification of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(9)

A matter is confidential under this subsection if—

(a)

it relates to the private affairs of an individual, and

(b)

publication or notification of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(10)

A person to whom a publication notice is given has a duty to comply with it.

(11)

The duty under subsection (10) 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.

(12)

For the purposes of subsection (1)(b) “the appeal period”, in relation to a decision or notice mentioned in subsection (1)(a), means—

(a)

the period during which any appeal relating to the decision or notice may be made, or

(b)

where such an appeal has been made, the period ending with the determination or withdrawal of that appeal.