Published 13|06|11
The penalty guidelines published 13 June 2011 replace the penalty guidelines published December 2003. The text of the December 2003 guidelines is available at http://www.ofcom.org.uk/about/policies-and-guidelines/superseded-guidelines/
Statutory background
1. Section 392 of the Communications Act 2003 ("the Act") requires Ofcom to prepare and publish a statement containing the guidelines it proposes to follow in determining the amount of penalties imposed by Ofcom under the Act or any other enactment apart from the Competition Act 1998. This statement contains Ofcom's penalty guidelines.
2. By virtue of section 392(6) of the Act, Ofcom must have regard to the statement for the time being in force when setting the amount of any penalty under this Act or any other enactment (apart from the Competition Act 1998).
How Ofcom will determine the amount of a penalty
3. Ofcom will consider all the circumstances of the case in the round in order to determine the appropriate and proportionate amount of any penalty. The central objective of imposing a penalty is deterrence. The amount of any penalty must be sufficient to ensure that it will act as an effective incentive to compliance, having regard to the seriousness of the infringement.
4. The factors taken into account in each case will vary, depending on what is relevant. Some examples of potentially relevant factors are:
- The degree of harm, whether actual or potential, caused by the contravention, including any increased cost incurred by consumers or other market participants;
- The duration of the contravention;
- Any gain (financial or otherwise) made by the regulated body in breach (or any connected body) as a result of the contravention;
- Any steps taken for remedying the consequences of the contravention;
- Whether the regulated body in breach has a history of contraventions (repeated contraventions may lead to significantly increased penalties);
- Whether in all the circumstances appropriate steps had been taken by the regulated body to prevent the contravention;
- The extent to which the contravention occurred intentionally or recklessly, including the extent to which senior management knew, or ought to have known, that a contravention was occurring or would occur;
- Whether the contravention in question continued, or timely and effective steps were taken to end it, once the regulated body became aware of it; and
- The extent to which the level of penalty is proportionate, taking into account the size and turnover of the regulated body.
5. Annex 1 sets out how Ofcom will consider some of these factors where programming has been complied on behalf of the ITV Network by a compliance licensee.
6. Ofcom will have regard to any relevant precedents set by previous cases, but may depart from them depending on the facts and the context of each case.
7. Ofcom will have regard to the need for transparency in applying these guidelines, particularly as regards the weighting of the factors considered.
8. Ofcom may increase the penalty where the regulated body in breach has failed to cooperate fully with our investigation.
9. Ofcom will ensure that the overall amount does not exceed the maximum penalty for the particular type of contravention.
10. Ofcom will have regard to any representations made to us by the regulated body in breach.
Revision of the statement of policy
11. Section 392(2) of the Act provides that Ofcom may from time to time revise our statement as we think fit. Ofcom must first consult the Secretary of State and other such persons as we consider appropriate.
12. This statement will be reviewed in the light of experience in applying it over time.
Definitions and interpretation
13. In these guidelines, 'regulated body' means any person or body subject to regulation by Ofcom under any enactment apart from the Competition Act 1998.