Paragraph 6 Liability of controlling individuals for failures by entitiesF1

(1)

This paragraph applies where—

(a)

OFCOM are satisfied that there are grounds for giving a person—

(i)

a confirmation decision which requires the person to take steps or imposes a penalty (or both), or

(ii)

a penalty notice,

in respect of a service of a type specified in sub-paragraph (2) that is or was at any time provided by the person,

(b)

the person is an entity (“E”), and

(c)

an individual or individuals control E.

(2)

The types of service referred to in sub-paragraph (1)(a) are—

(a)

a regulated television selection service;

(b)

a designated internet programme service;

(c)

a designated radio selection service;

(d)

a relevant internet radio service.

(3)

The confirmation decision may be given—

(a)

to E alone, or

(b)

jointly to E and to the individual or individuals who control E.

(4)

Before giving a penalty notice to an individual, or giving a confirmation decision to an individual who was not previously given a provisional notice of contravention relating to the same matter, OFCOM must give that individual an opportunity to make representations to OFCOM about—

(a)

the matters contained in the confirmation decision or the penalty notice, and

(b)

whether joint and several liability would be appropriate.

(5)

For the purposes of this paragraph, an individual or individuals are to be taken to control E if that individual or those individuals would, if they were an undertaking, be a parent undertaking in relation to E within the meaning of section 1162 of the Companies Act 2006 by reason of meeting the condition in subsection (2)(a), (b), (c) or (d) or (4)(a) of that section.

(6)

OFCOM may not give a confirmation decision or a penalty notice to an individual or individuals (“P”) if—

(a)

the condition by reason of which P controls E is the condition in section 1162(2)(a) of the Companies Act 2006, and

(b)

P makes representations to OFCOM in pursuance of paragraph 2 (7) or sub-paragraph (4) which satisfy OFCOM that P does not control E by reason of any condition in section 1162(2)(b), (c) or (d) or (4) of that Act.

(7)

If a confirmation decision or penalty notice is given jointly to E and to an individual or individuals under sub-paragraph (3)(b), E and that individual or those individuals are jointly and severally liable to comply with the requirements or (as the case may be) pay the penalty, imposed by the decision or notice.

Annotations

Textual amendments

F1: Sch. 16B inserted (23.8.2024) by Media Act 2024 (c. 15), s. 55(3)(g), Sch. 11; S.I. 2024/858, reg. 2(1)(z5)