Administrative penalty

95.(1) Where the Commissioner after a hearing determines that a person has contravened section 52(1), section 57(1) and sections 60 to 67 and the Commissioner considers it to be in the public interest to make an order, the Commissioner may order the person to pay to the Crown a penalty of an amount not exceeding $50 000.

(2) In addition to the public interest, where the Commissioner seeks to make an order pursuant to subsection (1), he shall have due regard to the following:

(a) the nature, gravity and duration of the contravention taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;

(b) the intentional or negligent character of the contravention;

(c) any action taken by the data controller or data processor to mitigate the damage suffered by data subjects;

(d) any relevant previous contraventions by the data controller or data processor;

(e) the degree of cooperation with the Commissioner, in order to remedy the infringement and mitigate the possible adverse effects of the contravention;

(f) the categories of personal data affected by the contravention;

(g) the manner in which the contravention became known to the Commissioner and, in particular whether, and to what extent, the data controller or data processor gave notice of the contravention; and

(h) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the contravention.

(3) Where the Commissioner makes an order under subsection (1) the Commissioner shall file in the registry of the High Court a copy of the order certified by the Commissioner, and on being filed the order shall have the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the High Court, unless an appeal has been filed pursuant to section 91.

(4) A penalty imposed by the Commissioner in the exercise of his powers under this Act shall be payable into the general revenue and may be recovered by the Crown as a civil debt and for the purposes of the proof of such debt a certificate under the hand of the Commissioner shall be receivable in evidence as sufficient proof of such debt.

(5) A person aggrieved by an order made by the Commissioner pursuant to subsection (1) may appeal to the Tribunal within 28 days of the date of the order.