62. Power of Commissioner to impose fixed penalty

62.—

1. The Commissioner may serve a data controller with a fixed penalty notice if the Commissioner has reason to believe that—

(a) the data controller has committed an offence to which this section applies;

(b) the contravention was of a kind likely to cause substantial damage or substantial distress; and

(i) that there was a risk that the contravention would occur; and

(ii) that such contravention would be of a kind likely to cause substantial damage or substantial distress, but failed to take reasonable steps to prevent the contravention.

2. For the purposes of subsection (1), the Commissioner may take into account any matter which comes to the Commissioner’s attention as a result of anything done in pursuance of—

(a) an assessment notice; or

(b) an assessment under section 4(8) (assessment with consent of data controller).

3. The offences to which this section applies are—

(a) an offence under section 21(2) (failure of controller to comply with standards or to make a required report or notification) or section 16(7) (failure to provide particulars); and

(b) any other offence prescribed under subsection (11).

4. A fixed penalty notice under this section is a notice in writing in the prescribed form offering the data controller the opportunity to discharge any liability to conviction of an offence to which this section applies by payment of a fixed penalty under this section.

5. A data controller shall not be liable to be convicted of an offence to which this section applies, in respect of which—

(a) the data controller pays the fixed penalty in accordance with this section; and

(b) the requirement in respect of which the offence was committed is complied with, before the expiration of the thirty days following the date of the fixed penalty notice referred to in subsection (4) or such longer period as may be specified in the notice, or the date on which proceedings are begun, whichever event last occurs.

6. Where a data controller is served with a fixed penalty notice under this section in respect of an offence, proceedings shall not be taken against any person for that offence until the end of the thirty days following the date of the notice or such longer period as may have been specified therein.

7. In subsections (5) and (6), “proceedings” means any criminal proceedings in respect of the act or omission constituting the offence concerned, and “convicted” shall be construed in like manner.

8. Payment of a fixed penalty under this section shall be paid to the Collector of Taxes specified pursuant to subsection (11), and in any proceedings a certificate that payment of a fixed penalty was or was not made to the Collector of Taxes by a date specified in the certificate shall, if the certificate purports to be signed by the Collector of Taxes, be admissible as evidence of the facts stated therein.

9. A notice under subsection (1) shall—

(a) give such particulars of the offence alleged as are necessary for giving reasonable information of the allegation;

(b) state—

(i) the period (whether thirty days or a longer period) during which, by virtue of subsection (6) proceedings will not be taken for the offence; and

(ii) the amount of the fixed penalty and the Collector of Taxes to whom and the address at which it may be paid; and

(c) require the data controller, in the event that the fixed penalty is not paid within the period specified pursuant to paragraph (b), to attend before the court having jurisdiction to try the offence to answer the charge on such date as may be specified, being a date not earlier than ten days after the expiration of the period specified pursuant to paragraph (b), and that requirement shall constitute a summons for the data controller to attend court to answer the charge if the fixed penalty is not paid within the period specified pursuant to paragraph (b).

10. In any proceedings for an offence to which this section applies, no reference shall be made after the conviction of the accused to the giving of any notice under this section or to the payment or nonpayment of a fixed penalty thereunder unless in the course of the proceedings or in some document which is before the court in connection with the proceedings, reference is made by or on behalf of the accused to the giving of such a notice, or, as the case may be, to such payment or non-payment.

11. The Minister may, by order subject to affirmative resolution, make provision as to any matter incidental to the operation of this section, and, in particular, any such order may—

(a) prescribe—

(i) the form of notice under subsection (1), and the Collector of Taxes to whom a fixed penalty is payable;

(ii) the nature of the information to be furnished to the Collector of Taxes along with any payment;

(iii) the arrangements for the Collector of Taxes to furnish to the Commissioner information with regard to any payment pursuant to a notice under this section;

(iv) the amount of the fixed penalty; and

(v) without prejudice to any offence mentioned in subsection (3), any other offences under this Act to which this section shall apply;

(b) provide that a fixed penalty notice may not be served on a data controller with respect to the processing of personal data for the special purposes except in circumstances specified in the order;

<-- Contents page