Digital Services Act 2024

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Enforcement of investigatory powers by daily payment penalty

53. (1) A penalty of a daily payment (in this section referred to as a “daily payment penalty”) may be imposed on a person in accordance with this section for the purpose of enforcing an obligation imposed on that person by an authorised officer in the exercise, in a Digital Services investigation, of any power conferred on the authorised officer by section 36 of the Act of 2014, as applied by section 46 .

(2) Where it appears to an authorised officer to be necessary to impose a daily payment penalty on a person, the authorised officer may give the person a notice in writing which—

(a) specifies the obligation referred to in subsection (1) in respect of which the notice is given,

(b) gives the person all relevant information relating to the obligation,

(c) states the date by which the person must comply with the obligation,

(d) states that, if the person fails to comply with the obligation by that date, the authorised officer intends to refer the matter to the Commission for a decision whether to impose a daily payment penalty on the person, for each day during which the failure continues, beginning with the day following that date,

(e) states why it appears to the authorised officer to be necessary to impose the penalty,

(f) states the maximum daily amount of the penalty that the Commission may impose, and

(g) invites the person to make written submissions to the Commission regarding the matters to which the notice relates within the period stated in the notice or such further period as the Commission may allow.

(3) The date specified under subsection (2)(c) may not be earlier than the date on which the notice under subsection (2) is given.

(4) The amount of a penalty imposed under this section on a person for each day during which the failure referred to in subsection (2)(d) continues shall not exceed 5 per cent of the person’s average daily income or turnover in the preceding financial year.

(5) Where it appears to an authorised officer that the person to whom a notice under subsection (2) has been given has failed to comply with the obligation specified in the notice by the date specified under subsection (2)(c), the authorised officer may refer the matter to the Commission.

(6) Where a matter is referred to the Commission under subsection (5) and it appears to the Commission, after considering any written submissions made by the person to whom the notice under subsection (2) was given within the period specified in accordance with subsection (2)(g), that it is necessary to impose a daily payment penalty on the person for the purpose of enforcing the obligation specified in the notice, the Commission may—

(a) determine the daily amount of the penalty to be imposed, and the date on which it is to commence, and

(b) by notice in writing to the person, impose the penalty.

(7) The functions of the Commission under this section (except this subsection) shall be exercised by a division of the Commission consisting of such uneven number of members of the Commission, not being less than 3, as the Commission may determine.

(8) If the person who gave the direction under section 49 for the investigation referred to in subsection (1) to be carried out is a member of the Commission, the division exercising functions under this section shall not include that member.

(9) A decision of the Commission to impose a daily payment penalty does not take effect unless it is confirmed on appeal under section 68 or on summary application under section 69 , as those sections apply in accordance with section 72 .